IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ISSAKA SALIFU -(Appellant) vs.
THE REPUBLIC - (Respondent)
DATE: 25 TH OCTOBER, 2018
SUIT NO: H2/12/2017
JUDGES: MARIAMA OWUSU J.A (PRESIDING), AVRIL LOVELACE-JOHNSON J.A, HENRY A. KWOFIE J.A
MR. MUNIRU KASSIM FOR THE APPELLANT
MR. SETH AWERE OPANYINYENA (SSA) FOR THE REPUBLIC/RESPONDENT
HENRY KWOFIE J.A:
This is an appeal against the judgment of the High Court, Accra dated the 27th day of September 2013 in which the High Court convicted the accused person of the offences of conspiracy to commit a crime namely robbery and Robbery and sentenced him to 15 years imprisonment on both counts to run concurrently.
The brief facts of the case are that on the 28th of April 2003, the appellant and his accomplices attacked and robbed the complainant and his family at about 3am in their house at Mempeasem near East Legon. The appellant and his accomplices in the course of the robbery made away with GH¢40.00 and the following items:
1. 1 Sanyo TV Set
2. 1 Toshiba video deck
3. 2 Nokia Mobile phones
4. 2 Suit cases
5. 1 travelling bag
6. 1 Fida Carpet Cleaner
7. 1 Sound System
As the armed robbers were leaving the house, an alarm was raised and people in the neighbourhood were awakened by the alarm. An unidentified neighbour shot the appellant in the leg but he managed to run into a nearby bush where he was arrested by a police patrol team. Searches conducted on him revealed one locally manufactured pistol and four small cartridges. Based on these facts, the appellant and his accomplice were charged with the offence of conspiracy to commit a crime namely robbery contrary to section 23(1) and 149(1) of the Criminal and Other Offences Act 1960 as amended by the Criminal Code (Amendment) Act 2003 Act 646 and Robbery contrary to Section 149 of the Criminal and Other Offences Act 1960 as amended.
The appellant was convicted on both counts and sentenced to 15 years imprisonment with hard labour on each count with the sentences to run concurrently.
Dissatisfied with the 15 years sentence impose on him the appellant on the 4th of July 2016 filed a
Notice of Appeal pursuant to leave granted by the High Court on 28th June 2016. The 2 grounds of appeal set out in the petition of appeal are:
a. The judge erred where he failed to take into consideration the period the convict had spent in custody in respect of the offence.
b. That the sentence is excessive and too harsh in the circumstances of the case.
In respect of the 2 grounds of appeal counsel for the appellant submitted that the appellant was arrested on the 28th of April 2003 the day of the robbery and judgment was delivered on the 27th of September 2013. From the date of his arrest to the day of judgment the appellant remained in custody and was never granted bail. He submitted that the appellant in effect was in custody for more than 10 years before judgment was delivered.
Counsel observed that it has been held in a long line of cases that in passing sentence in a criminal case, the Court is bound to consider the period an accused has spent in lawful custody. Counsel referred to Article 14(6) of the Constitution 1992 and submitted that in sentencing the appellant to 15 years imprisonment on both counts to run concurrently, the trial judge did not state that he had taken into consideration the number of years the appellant had spent in custody. He asserted that in the event, the appellant would spend a total of 25 years in prison on each count as a result of the trial judge’s failure to take the constitutional injunction in Article 14 (6) into consideration in passing sentence on the appellant.
Counsel further observes that in any event the sentence of fifteen years I.H.L imposed on the appellant was excessive. He referred to the case of Robertson Vrs. The Republic (2015) 80 GMJ 33 and submitted that a sentence of imprisonment even through intended specifically as a general deterrence must not be excessive in relation to the facts of the case. He therefore prayed for a reduction in the sentence of the appellant.
Counsel for the respondent however thinks otherwise. He contended that the minimum sentence for the offence that the appellant was charged with that is conspiracy to rob and robbery when he used an offensive weapon is unambiguously stated in the law and therefore the trial judge had no option but to impose the 15 year sentence which was the statutory minimum on the appellant. With regard to the contention by the appellant that the sentence of 15 years was harsh, counsel for the respondent submitted that the record of appeal shows that the appellant and his accomplices forcibly entered the complainant’s home wielding guns and knives, attacked the complainant and his family and inflicted knife wounds on him. He submitted that the sentence imposed on the appellant should have been enhanced instead of the statutory minimum of 15 years imposed by the trial Court.
Article 14(6) of the 1992 Constitution provides as follows:
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment”
Robbery is a first degree felony, and the maximum sentence a court can impose on a convict is life imprisonment. The Criminal Code (Amendment) Act 2003, Act 646 however prescribes a minimum sentence for persons convicted of robbery with or without the use of offensive weapon or offensive missile. Act 646 provides as follows:
“Whoever commits robbery is guilty of an offence and shall be liable upon conviction for a term of imprisonment of not less than ten (10) years and where that offence is committed by the use of an offensive weapon or offensive missile the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years”
Thus, Act 646 prescribes that the minimum sentence a Court could impose on a person convicted of robbery without offensive weapon or missile is ten (10) years and with an offensive weapon or missile is fifteen (15) years.
Counsel for the appellant accused the trial judge of not taking Article 14(6) of the constitution into consideration by referring to page 56(A) of the Record of Appeal where the trial judge in sentencing the appellant stated as follows:
“The accused is convicted on both counts of the charge preferred against him. He is sentenced to 15 years imprisonment on both counts to run concurrently”
In discussing the effect of Article 14(6) of the Constitution 1992 with regard to sentencing in the case of Ojo Vrs. The Republic (1999-2000) 1 GLR 169 the Court of Appeal held per Benin JA (as he then was) as follows:
“Although article 14(6) of the constitution 1992 enjoined a Court before sentencing a convicted person to take into account any period he has spent in lawful custody, since by the provision of Section 315(2) of the Criminal Procedure Code, 1960 (Act 30) a sentence of imprisonment should start from the date it was pronounced, a Court was not entitled to backdate a sentence. Accordingly under the law, the judge had to take the period spent in lawful custody into account before imposing the sentence. Thus, when a Court imposed a term of imprisonment, it should be presumed to have imposed it in the light of Article 14(6) of the Constitution 1992. Accordingly in the instance case, the tribunal could not have imposed the mandatory ten (10) years imprisonment on the appellants with a direction that it should run from the date the appellants were taken into lawful custody since that would be contrary to the provisions of Section 315(2) of Act 30. Section 315 (2) of Act 30 provides:
“A sentence of imprisonment should commence on and include the whole of the day on which it is pronounced” Clearly that provision does not entitle a Court to backdate a sentence. Thus a Court cannot impose a sentence today and say it should take effect from yesterday. Article 14(6) of the Constitution 1992 only enjoins a court before sentencing a convicted person to take into account the period he has spent in lawful custody……………………”
Also, in the recent Supreme Court case of Abdulai Fuseini Vs The Republic (2018) 122 GMJ 236 at page 255 it was held per Dotse J.S.C. with regard to the minimum sentence a Court could impose when the offence of robbery is committed with an offensive weapon as follows:
“Section 149 (1) of Act 29 is clear on the minimum sentence to be imposed when robbery is committed with an offensive weapon, that is: 15 years. From the facts and the evidence at the trial the accused persons were armed with cutlasses and guns”
Clearly it is obvious from the authorities that a court should in sentencing an accused person take Article 14(6) into account but this cannot be used by a Court as a basis to disregard the statutory minimum sentence prescribed by law.
In this instant case the evidence shows that the appellant was sentenced to the statutory minimum of 15 years prescribed by law for the offence of robbery which was committed with offensive weapons.
The evidence on record shows that the appellant and his accomplices attacked the complainant and his family with guns and knives and fired gunshots into their house, broke the door to their living room and ransacked the house. Indeed the evidence of the PW1 Robert Samuel Aryeetey at page 18 to 20 of the Record shows clearly that the appellant was the one who inflicted knife wounds on the arms and buttocks of the PW1 in the course of the robbery and threatened to kill him in the presence of his wife and minor children aged 2 and 5 years respectively.
The trial judge in imposing the 15 year sentence on the appellant had no discretion in the matter having regard to section 149(1) of Act 29/60 as amended.
Indeed, given the violence perpetrated by the appellant and his accomplices, I agree with counsel for the respondent that the trial judge was magnanimous in imposing the statutory minimum sentence of 15 years on the appellant.
In our view the sentence imposed on the appellant was reasonable and cannot be described as harsh and excessive as contended by counsel for the appellant.
Under the circumstances, we find no merit whatsoever in this appeal. The appeal herein against sentence therefore fails and is hereby dismissed.