IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
DOMINIC KOFI ANIM - (Appellant)
THE REPUBLIC -(Respondent)
DATE: 19TH APRIL, 2018
CRIMINAL APPEAL NO: H2/21/2017
JUDGES: F.G. KORBIEH J.A. (PRESIDING), AGNES M. A. DORDZIE (MRS.) J.A., I.O.TANKO AMADU J.A.
AUGUSTINES OBOUR FOR THE APPELLANT
RICHARD GYAMBIBY (SSA) FOR THE REUPUBLIC/RESPONDENT
F.G. KORBIEH, J.A.
The appellant herein and two others were tried in the circuit court on two counts of conspiracy to commit crime, to wit, robbery and robbery respectively. He and the two others all pleaded not guilty to the charges and were therefore given a full trial at the end of which they were found guilty and sentenced to various terms of imprisonment. The appellant and the second accused person were each sentenced to 20 years I.H.L. on count one and 30 years on count two and the sentences were to run concurrently. The third accused was sentenced to 20 years I.H.L. on count one only. All three filed a notice of appeal at the registry of the High Court against the “whole decision” but complained that the sentence imposed on them was too harsh. The relief they sought from the High Court was for the sentence to “be mitigated as the Appellants are first offenders.”
In his judgment delivered on the 22nd day of December, 2016, the learned trial High Court judge, after reviewing the facts of the case and summarizing the submissions of counsel for the appellants, proceeded to interpret the relevant law in the following manner as summarized: he cited the case of Kwaku Frimpong aka Iboman v. The Republic  SCGLR 328 and said that where the minimum sentence was prescribed by law, it superseded the consideration of the accused person being a first offender. He also cited the case of Robertson v. The Republic  80 GMJ 33 SC where it was said that sentencing is discretionary and whenever discretion is exercised an appellate court had no just cause to interfere with the exercise of the discretion but that an appellate court would interfere with a sentence that was manifestly excessive having regard to the circumstances of the case or where the sentence was wrong in principle. He surmised that in passing sentence, a judge was under a duty not to exercise power in a capricious manner or pronounce a sentence that was harsh and excessive; but to determine what was harsh or excessive, due regard had to be had to the offence, the mode of its commission and the lack of remorse shown as well as the need to send the right signal to other people of the type of the appellant. Having taken all these matters into consideration, the learned judge held the view that he saw nothing wrong with the sentences passed on the appellant and his colleagues and so decided to dismiss their appeal. The 1st appellant alone then launched this appeal on the following ground.
“The sentence is excessive and too harsh.”
We will commence our consideration of the appeal by going straight to the arguments for and against the appeal. We however note that counsel for the appellant presented his case as if he was still in the court of first appeal and not appealing against the judgment of first appellate court. In his attempt to justify why he thinks the sentence is excessive and too harsh, he argued that the learned appellate judge, having reheard the case, as he was enjoined by the law to do, should have realized that the charge of robbery leveled against the appellant was bad in law because Regina Asantewaa, the owner of the stolen items, was not even at the scene of the crime and so could not have been robbed, given the fact that robbery can only be perpetuated on a person who is within physical range to be robbed. He also contended that the evidence adduced at the trial was at variance with the charge and so the charge ought to have been amended and the appellant asked to plead afresh. This, he argued, would have accorded with section 176 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which deals with “Variance between charge and evidence”. In his view, since the prosecution failed to do this, and the two courts below found, as a fact that the appellant committed robbery, the law allows this Court to set aside the concurrent findings of the two courts below under the authority of Tetteh Samadzi v The Republic 110 GMJ 98 SC. Counsel therefore argued that the worst the appellant should have been charged with was the lesser crime of stealing, given his own evidence in court. Counsel continued further that the anomaly was fatal to the sentence. He went on to say that whereas the principle of sentencing enunciated in the case of Kwashie v. The Republic  1 GLR 70 might suggest that there was no limit of sentences likely to be imposed, in Kwaku Frimpong aka Iboman v. The Republic (supra) the Supreme Court said that whilst the length of the sentence ought to be commensurate with the degree of revulsion of law abiding citizens towards the crime, peers and younger persons of society ought to have an opportunity to observe the life of the convict after his release and hopefully be deterred thereby. He also said the trial court had said the appellant was an ex-convict but without any proof and since the court was a court of record such an allegation without proof ought to be struck off the recork. Counsel argued further about the constitutional provision relating to the trial court’s obligation to take any period the appellant may have spent in custody into account in pronouncing sentence and concluded that this Court ought to set aside the sentence affirmed by the court below as it had breached article 14(6) of the 1992 Constitution.
In answer to these submissions by counsel for the appellant, counsel for the respondent made submissions which have been summarized as follows: he first dismissed the argument about whether or not the appellant is a first offender and argued that what mattered was the gravity of the offence. He cited the case of Kwashie v. The Republic (supra) in which the court said as follows:
“In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.”
He contended that the appellant had committed robbery with an offensive weapon and the sentence prescribed for such an offence was a minimum of fifteen years of imprisonment. He also argued that since sentencing was within the discretion of the trial judge, the imposition of 30 years on the appellant who had used a screw driver to inflict life-threatening wounds on the complainant and his son was not excessive. He also cited the case of Kwaku Frimpong aka Iboman v. The Republic (supra) in support of his stance. Counsel also submitted that even though the appellant appealed against only sentence, he appeared to be arguing against conviction as well (as alluded to earlier by the Court itself). Counsel nevertheless, argued that the evidence adduced at the trial supported a charge of robbery with an offensive weapon. He therefore opined that under section 31(2) of the Courts Act, 1993 (Act 459), there was no substantial miscarriage of justice as there was merely a technical error.
We shall now do our own analysis of the arguments for and against the one ground of appeal which is to the effect that the sentence is excessive and too harsh. But before we delve into the analysis of the issue of the sentence being too harsh or excessive, we have to consider the issue of the charge sheet naming Regina Asantewaa as the victim of the robbery. As said earlier, it was argued by counsel for the appellant that this fact made the sheet defect and therefore rendered the charge defective in law and it ought to have been amended to accord with the evidence failing which “the charge sheet is incurably bad and wrong in law…” This rather inconclusive argument of counsel for the appellant did not surprise us because he did not have the courage to go on to say that the conviction should
therefore be overturned since, if “charge sheet is incurably bad and wrong in law”, it is a nullity and so cannot be the basis of a valid charge. Counsel however knew better than to put up that kind of argument for two reasons; the first was that he had not appealed against conviction and the time to appeal against conviction had since elapsed but the second, and probably more important reason was that going by the definition of robbery, it is not necessarily the actual owner of the stolen item or items that must be robbed. Under section 150 of the Criminal Offences Act, 1960 (Act 29) robbery is defined as follows:
“A person who steals a thing commits robbery
(a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or
(b) If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing”.
In the case of Behome v. The Republic  GLR 112, it was held that:
“(5) Under section 150 of Act 29 A. would only be guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault to B. with intent thereby to prevent or overcome the resistance of B. or C. to the stealing of the thing. The fear might be either of personal violence to the person robbed or to a member of his family in the restrictive sense of a man, his wife and children. And the thing stolen must be from the person of the one threatened or in his presence, if the property was under his immediate and personal care and protection.”
Regina Asantewa, the owner of the stolen items, may not have been present at the time of the robbery but the stolen items were under the care and protection of her husband and son to whom harm was caused in the cause of the robbery. There was therefore no need to amend the charge sheet. Robbery was committed to all intends and purposes and with an offensive weapon to boot. But beyond all of this, counsel for the respondent also gave a very fitting response to the argument of counsel for the appellant. He referred to the provisions of section 31(2) of the Courts Act, 1993 (Act 459) which say that:
“(2) The appellate court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment.”
The question that needs to be asked is: did the failure by the prosecution to amend the charge sheet or the failure of the trial judge to require the prosecution to do so change the evidence that the appellant and the other accused person went to the house of PW1, PW2 and PW3 to rob them with an offensive weapon? The answer is obviously in the negative.
That being the case, the so-called defect on the charge consists of a mere technicality and the first appellate court was therefore right to have ignored it. It may be true that in criminal jurisprudence issues are more seriously scrutinized than in civil matters. Nevertheless, I want to believe that pronouncements in civil matters hold just as true as in criminal matters. In the cases of Westchester Resources Ltd. v. Ashanti Goldfields Co. Ltd. And Africore (Gh) Ltd. v. Ashanti Goldfields Co. Ltd., (Consolidated) (Civil Appeal No. J4/63/2013; Dated 11/11/2015; Unreported) this is what Atuguba, JSC said:
“Technical justice is not favoured in the modern judicial process”.
What I believe he meant was that technicalities should not be permitted to be the cause of a miscarriage of justice in these modern times. But what counsel for the appellant is precisely urging on us is that despite the glaring evidence and in the light of the statutory provision that such a technicality should not be allowed to overturn a conviction, the first appellate court was wrong not to have overturned the conviction. We cannot see eye to eye with that argument and therefore reject it as being unmeritorious. As dictated by the law, there was sufficient evidence on the record to justify a conviction for robbery with an offensive weapon and the fact that the wrong person may have been named in the charge sheet did not derogate from the commission of the offence. It is trite law that an appeal is by way of re-hearing and even at this stage we are still re-hearing the case. The evidence on record was that the people who were physically attacked and injured during the robbery were the husband and son respectively of Regina Asantewa, the owner of the stolen items.
We now return to the issue of the sentence. We shall first consider the issue whether or not the appellant was a first offender. In connection with that issue, counsel for the appellant had alleged that the trial judge said that the accused persons were ex-convicts and so he wanted that statement expunged from the record, especially, as he put it, the statement was not backed by any documentary evidence. We have poured through the trial judge’s judgment but failed to see any such statement made directly or indirectly by the trial judge. There being no evidence of the trial judge having said any such thing, we shall simply ignore counsel’s statement as being baseless.
The appellant and his colleagues were arrested on the 3/4/2011 and sentence was passed on them on the 24/2/2014. Article 14(6) of the 1992 Constitution requires that any period spent by a person in lawful custody before the completion of his trial shall be taken into account in imposing a term of imprisonment on the person. There is no evidence that either the trial court or the first appellate court applied the provision of article 14(6) in sentencing the appellant but we do not think that that omission by itself rendered the sentences null and void. In any case, it is trite law that we can rehear this case (which we hereby proceed to do). It is also trite that sentencing is within the discretion of the trial judge. This was patently recognized by the first appellate court and the learned judge therein specifically referred to the Supreme Court case of Robertson v. The Republic (supra) where the Supreme Court simply confirmed the long-held legal belief that sentencing is within the discretion of the trial judge and that where the discretion had been judicially exercised, an appellate court had no just cause to interfere with the exercise of the discretion. In the recent case of J.M.D.Moises v. The Republic  110 GMJ 243, it was again emphasized that sentencing was within the discretion of the trial court and that an appellate court could not use extraneous matters to reduce a legitimate sentence imposed by the trial court. Gbadegbe, JSC then went on to say at page 250 that:
“We are of the opinion that if the matters raised in the grounds of appeal before us were to be legitimate factors that might weigh on the minds of appellate courts in determining the question of sentence to be passed on a convicted person, it would undermine the settled practice of courts that the question of the appropriate sentence is one for the trial court and undermine the authority of the trial courts who are primarily seised with the relevant factors that can be utilized in sentencing. But that is not it at all. It would also while seeking to exercise an appellate jurisdiction, providing appellate courts with matters outside the scope of trial courts which can be taken into account in passing sentence and render the nature of appellate jurisdiction, quite unconcerned with the facts and circumstances which might have formed the basis of the sentence imposed on the appellant.”
As we have demonstrated, most of the arguments of counsel for the appellant in this case are rather extraneous to the ground of appeal filed by the appellant. We may not necessarily agree with the sentence imposed by the trial court but as rightly put by the first appellate court:
“An appellate Court will only interfere with a judgment where it is shown that the trial court acted on wrong principles or the ruling, order or judgment has manifestly portrayed a miscarriage of justice.”
Since none of this occurred, we are unable to bypass the decision of the first appellate court to disturb the sentence imposed by the trial judge. We accordingly hereby dismiss the appeal.