IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
SOLOMON MENSAH - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 14 TH FEBRUARY 2018
CIVIL APPEAL NO: H1/16/2018
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA M. DOMAKYAAREH (MRS) J.A.
NANA E. A. KONDUA FOR APPELLANT
PATIENCE KLINOGO (CSA) FOR THE RESPONDENT
L. L. MENSAH, J.A.
This is an appeal against the decision of the High Court, Tarkwa sitting as an appellate court dated the 24th day of February 2016.
The facts on which rest this appeal are as follows:- The Appellant was an excavator operator of a Chinese small scale mining company at Oda-Krofrom near Asankragwa. On 15th January 2015, the Appellant agreed with a former casual worker of the company and four other persons, all of whom are at large, to rob the complainant.
On the agreed date the 25th January 2015, they laid ambush for the complainant and when the complainant and his son were travelling with gold valued at GH¢859,586.00 plus cash of GH¢60,000.00, the Appellant quickly informed his accomplices who had armed themselves with guns and dressed in military uniforms. They stopped the complainant’s vehicle, stripped him naked and snatched the vehicle containing the gold and cash and sped with same. A report was made to the police and the culprits were persued. During investigation, the complainant’s vehicle was found abandoned without the gold and the money.
On 1st February 2015, the Appellant gave his luggage to a taxi driver to be given to a friend, but when out of curiosity the luggage was opened by the friend, it was found to contain two locally manufactured pistols with eight rounds of ammunition, automatic pistol and a set of military uniform. When the Appellant was confronted, he confessed the arrangement made with his colleagues to rob the complainant. The Appellant’s accomplices are still at large.
After investigations, the Appellant was charged with conspiracy, abetment of robbery and possession of arms and communication without authority. He pleaded guilty after the charges were read and explained to him in Twi. The charge of conspiracy was however later dropped by the prosecution.
The Circuit Judge before whom Appellant was arraigned, sentenced him to 40 years imprisonment. Dissatisfied, the Appellant appealed to the High Court, Tarkwa. The learned Appellate High Court Judge upon reviewing the appeal reduced the sentence from the 40 years to 30 years IHL. It is against the 30 years sentence that the Appellant appealed to this court.
Grounds of Appeal:
The following are the grounds of appeal:-
(1) The appellate High Court, Tarkwa in looking at the harsh and excessive sentence imposed by the trial Circuit Court, Tarkwa, ought to have considered the non-compliance with statutory requirement of imposing sentence by the trial Circuit Court, when it imposed one sentence on the two counts the Appellant was charged with.
(2) That the appellate High Court, Tarkwa, after it had set aside the sentence of the trial Circuit Court ought to have taken into account the decision in the case of Kwadu vs. The Republic (1971) 1 GLR 272 holding 3, before arriving at the substituted sentence of 30 years.
(3) The failure of the appellate High Court, Tarkwa, to comply with the statutory mode of imposing different sentences on the two counts charged the Appellant and to run concurrently or consecutively but rather imposed one sentence on the two counts misled the High Court Tarkwa, into imposing a sentence which had the effect of crushing a 19 years Appellant in prison and making the sentence manifestly excessive.
(4) As a first offender and having regard to the age of the Appellant the reformative principles of our criminal system ought to have been applied by the Appellate High Court, Tarkwa, but this was not done.
(5) Additional grounds will be filed upon receipt of the record of proceedings.
No additional grounds of appeal was however filed by Appellant.
In arguing the appeal, the learned Appellant’s counsel considered grounds, 1 and 3 together as hereinbefore stated. Counsel submitted that under section 149 of the Criminal Offences Act, 1960 (Act as amended by Act 646 provides that whoever commits robbery with offensive weapon shall upon conviction be liable to imprisonment for a term not less than 15 years.
Counsel further submitted that under section 11 of the Arms and Ammunition Act, 1972 NRCD 9 upon which count 3 of the charges brought against the Appellant, provides that anyone found guilty shall be liable to a fine not exceeding ¢5m (old cedis) or to imprisonment not exceeding 5 years or to both. In his further submission on these grounds of the appeal, Appellant’s counsel referred to the case of Republic vs. Kwadwo II (1991) 1 GLR 1 CA.
Counsel said both the trial Circuit Court and Appellate High Court went ahead to impose their respective sentences without indicating the sentence of each count and whether or not the sentences were to run concurrently or consecutively. A further submission is that by lumping up the sentence of the two counts together both the trial court and Appellate High Court had imposed manifestly excessive sentences on the Appellant. These sentences are against the prescribed sentences of 15 years minimum for robbery and 5 years maximum for the count 3 which is possessing arms and ammunition without authority.
The final submission of learned Appellant’s counsel on these grounds of the appeal is that the court ought to have imposed the minimum sentence of 15 years on count 2 and the maximum 5 years for count 3 and order the sentences to run concurrently. That by failing to impose different sentences on the two counts charged, the Appellate High Court misled itself by erroneously imposing a single sentence of 30 years on the 2 counts.
In response to the above arguments on the two grounds of the appeal, the learned counsel for the Republic referred to the same case which is Republic v. Kwadwo II (supra) and contended that where a trial court sentenced an accused person without indicating which counts and pronounce sentence to cover the undisclosed counts, that court would have erred. However where there is evidence on record to indicate on which count the accused could be convicted, as in the instant case, the Appellate court is to dismiss the appeal and substitute the appropriate convictions and sentences in so far as the trial court’s action did not cause a substantial miscarriage of justice. The Respondent’s counsel also referred to holding 3 of Ofori Boateng JA’s judgment in Republic vs Kwadwo II (supra) to confirm her submission for the need to ensure that the criminal justice system does not veer off into the domain of technicalities.
Respondent’s counsel contended that the failure of the trial court to impose separate sentences on each count on which the Appellant was convicted was a mere error and this did not cause a substantial miscarriage of justice. Counsel also referred to section 406(1) of Act 30 and section 31(2) of the Courts Act 1993 Act 459 which repealed Act 372 of 1971. Counsel also disagreed with the Appellant’s contention on the minimum sentence of 15 years for abetment of robbery and the maximum sentence of 5 years for count 3. She contended that the sentences imposed by the Circuit Court and the High Court were appropriate and same should not be disturbed.
We have looked at the entire record of appeal and the submissions of the learned counsel for the Appellant and the Respondent, coupled with a look at the decided cases and statutes which each used to back their argument.
The first ground we want to consider is the argument of Appellant that both the trial Circuit Court and the Appellate High Court committed an error in imposing the sentences without apportioning the respective sentence and its appropriate count. We admit that the Appellate High Court committed an error of law in that regard. However it would be irresponsibilities on the part of the courts to use errors that are technical in nature to defeat the end of justice, to put it bluntly. It is admitted that the Appellant pleaded simpliciter and he was convicted on his own plea and dealt with by the learned trial Circuit Court Judge. We also admit that the Appellate High Court Judge also failed to separate the counts and their corresponding sentences. It is interesting to mention that the counsel for the Appellant tried to fall on the case of Republic vs. Kwadwo II (supra) to vindicate his appeal. Unfortunately he used a text book case of quoting out of context in that the Court of Appeal per Ofori Boateng JA (as he then was) in holding 3 of that case rather vindicated the position of the Respondent in this instant appeal. We receive with approval, the dictum of the learned justice of Appeal which the learned Chief State Attorney for the Republic quoted in extenso as follows:-
To my mind to acquit on appeal, a person against whom there is undoubted evidence beyond reasonable doubt, because before sentencing him the trial court forgot to announce the incantation of “you are hereby convicted on count one, two and three etc., and sentenced to a fine or imprisonment on each count concurrently” is being unduly technical without paying sufficient attention to the real question to do justice. The holding of the balance of justice between the accused and the public by the Appellate courts and the veering of criminal justice from technicalities to the real essence of justice is to my mind, the policy behind the Courts Decree 1966 (NLCD 84), section 13 which eventually became the Courts Act, 1971 (Act 372) section 26 (2).
We fully endorse the relevant pronouncement of Ofori Boateng JA of blessed memory that there must be a careful balance to be struck between protecting the innocent public and using technicalities to defeat the end of justice.
We also agree with the Respondent’s counsel that the omission to impose separate sentences on each of the counts on which the Appellant was convicted, was a mere error and did not occasion a substantial miscarriage of justice. Indeed the position of the learned Respondent’s counsel has been confirmed by two statutory provisions which make the Appellant’s submission pale into a mere shadow. For instance under section 406(1) of the Criminal and Other Offences Procedure Act 1960 (Act 30) we have the following provision:
Subject to this Part, a finding, sentence or order passed by a court of competent jurisdiction shall not be reversed or altered on appeal or review on account that
(a) An error, omission, irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or any other proceedings before or during the trial, or in an enquiry or any other proceedings under this Act .... unless such error, omissions, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice.
Section 406 (1) of the same Act has been reproduced mutatis mutandis under section 31(2) of the Courts Act, 1993 (Act 459) as follows:-
The Appellate court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually 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.
From the two important statutory provisions as aforementioned, this court would have no jurisdiction to overturn the decision of both the trial Circuit Court and the Appellate High Court. This is because the commission and omission by the two courts if anything, are mere procedural errors bordering on technicalities. Indeed the question to ask is whether the omission to pass two separate sentences for the corresponding offences with which the Appellant had unmistakably pleaded guilty should be set aside in preference to the serious crime of robbery which the Appellant impeccably facilitated by being an inglorious informer?
Coming to the submission of the Appellant on the specific issue of the sentencing, while the Appellant was charged under section 11 of NRCD 9, it is section 26 that created the punishment of 5 years. On the other hand the offence of robbery is a first degree felony within the purview of section 296(1) of Act 30 as amended by section 5 of Act 261 as submitted by the Respondent’s counsel. Indeed as a first degree felony, the punishment for a first degree felony is life imprisonment with the minimum term provided under Act 646 which amended section 149 of the Criminal Offences Act.
We do not find the 40 years imprisonment imposed by the learned Circuit trial judge which was benevolently reduced to 30 years IHL inordinately high. As aforementioned, the sentencing of the two courts below are of no substance but mere errors which are curable under sections 406(1) of Act 30 and 31(2) of Act 459. There is no merit in these grounds of the appeal.
We now want to consider grounds 2 and 4 of the appeal. These, as aforementioned are:
2. That the Appellate High Court, Tarkwa after it had set aside the sentence of the trial Circuit Court, Tarkwa, ought to have taken into account the decision in the case of Kwadu vs. the Republic (1971) 1 GLR 272 holding 3 before arriving at the substituted sentence of 30 years.
4. As a first offender and having regard to the age of the Appellant the reformative principles of our criminal justice system ought to have been applied by the Appellate High Court, Tarkwa, but this was not done.
In his submission on this ground of the appeal, the learned Appellant’s counsel referred to the case of Kwadu v. The Republic (supra) and also Haruna v. The Republic (1980) GLR 189.
Counsel contended that the two courts below ought to have taken into consideration the reformative element in the criminal justice in the light of the two cases above when in particular, the Appellant was just 19 years old at the time of his conviction and sentence as a first offender. It is the prayer of counsel for reduction of the sentence. This is because the prison sentence of 30 years would have a deleterious effect on Appellant.
The learned counsel for the Republic however dismissed the above argument of the Appellant. She submitted that granted that first offenders such as the Appellant in the instant case should be treated leniently when sentence was being imposed, the measuring rod or standard in the circumstances was the statute creating the offence and the punishment provided therein. She confirms her submission with the case of Frimpong alias Iboman vs. The Republic (2012) 1 SCGLR 297 where the above principle was enunciated per Dotse JSC.
The learned Chief State Attorney submitted that when about to impose sentence, the court should consider as to whether or not the first offender had acted as a first offender. This can be deduced from the type of crime that has been committed, the circumstances and the casualties if any. That where as in this instant case, the firs offender, had abetted a serious crime as robbery which is a first degree felony, then the first offender has divested himself of any lenient consideration.
Counsel contended that the record shows at page 19 of the record of appeal that the use of violence was involved in the case. That the Appellant belongs to the category of new band of criminal elements who do reconnaissance job to pass intelligence to others to attack and rob their victims. That if a court found an offence to be grave, it must not impose only a punitive sentence, but also a deterrent or exemplary one to show its disapproval of the society of that offence.
That in the instant case, the Appellant has betrayed the complainant who was his benefactor and employer. Counsel argued that a court’s sentence must be seen in the light of the court’s discretion as enunciated in such cases as Banda v. The Republic (1975) 1 GLR 52; Republic vs. Bofah and Another (1968) GLR 620.
We have rehearsed the valued arguments traded by both counsel on whether or not the learned Appellate High Court’s reduction of the 40 years IHL to 30 years is reasonable given that the Appellant is a first offender and a young man of 19 years at the time of the offence.
As rightly contended by the learned counsel for the Republic, the criteria for imposing sentence has been spelt out in a number of cases, in particular the case of Frimpong alias Iboman v. The Republic (supra). In holding 8 of the said judgment Dotse JSC spelt out the principles of imposing sentences upon a convicted person, namely in determining the length of sentence and the factors which should be considered by the trial judge which 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) the mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.
The above factors have long been enunciated in the case of Kwashie and Another v. the Republic (1971) 1 GLR 488 at 493 CA. See also Adu Boahen v. Republic (2015) 80 GMJ 33 SC.
In the instant case, the two lawyers for the Appellant and Respondent as expected, are at opposite poles as to what circumstances warranted the two lower court judges to refrain from handing to the Appellant a lenient sentence as the Appellant’s counsel has impressed upon us in the region of 15 years IHL minimum for the offence of aiding the commission of robbery. We are aware that the Appellant was a mere abettor, but his role was crucial because as rightly contended by the respondent’s counsel, it was the Appellant who did the reconnaissance and passed the unholy information to the criminal gang who robbed the Chinese of the huge sum of money both in cash and in gold to the tune of GH¢859,586.00.
The offence is more grievious if one considers the fact that the Appellant was in the employment of Mr. Lan Jiangan, the Chinese National. He employed Appellant not as an illegal miner with a miserable daily wage, but as an excavator operator. Instead of reciprocating the foreigner’s kind gesture, the Appellant helped the robbery gang to rob everything except the GH¢10,000.00 retrieved from the Appellant.
Throughout his written submission the constant refrain from the learned Appellant’s counsel is the young age of the Appellant and the fact that he is a first offender. If an accused who is a first offender gets involved in a diabolical and sophisticated offence as robbery and he is caught, the plaintive appeal of his young age would not find a willing ear. As aforementioned, robbery has reached epidemic proportions with the robbers exhibiting bravado and dare –devil tactics to keep the peace-loving citizens of this country in perpetual fear.
We have carefully considered the reformative element in our criminal justice system and in particular the age of the Appellant and he as a first offender herein. However, though we are filled with the milk of human kindness, we feel that those who want to inflict trauma, pain and agony on their fellow citizens should be locked up for some years. From the above, we see no merit in this appeal.
Since one of the main grounds of this appeal is the mode of sentence of the Appellate High Court, we affirm the 30 years I.H.L. imposed on the Appellant on count 2 for abetment of robbery contrary to sections 23(1) and 149 of Act 29/60.
We hereby sentence Appellant to the maximum 5 years IHL on count 3, that is, possessing arms and ammunition without authority contrary to section 11 of NRCD 1972 and we set aside that sentence by the High Court. Both sentences are to run concurrently. Aside this sentence, the appeal has no merit. Same is hereby dismissed.
(SGD). L. L. MENSAH
JUSTICE OF APPEAL
IRENE C. LARBI (MRS), J.A I agree. (SGD).IRENE C. LARBI (MRS)
JUSTICE OF APPEAL
ANGELINA M. DOMAKYAAREH (MRS), J.A. I also agree. (SGD). ANGELINA M. DOMAKYAAREH (MRS)
JUSTICE OF APPEAL