IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
THE REPUBLIC- (Respondent)
WAHAB AMIDU AND 2 OTHERS - (Appellants)
DATE: 23RD MAY, 2018
CRIMINAL APPEAL NO: H2/2/18
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LAWYERS: HARRY HALIFAX HAYFORD FOR THE APPELLANT PATIENCE KLINOGO FOR THE RESPONDENT
A.M. DOMAKYAAREH (MRS), J.A
1. The appellant in this case, the 1st convict, was charged, tried and convicted for robbery contrary to Section 149 of Act 29 of 1960 as amended by Act 646 of 2003 at the High Court, Sekondi on
18th November 2004 together with the 2nd and 3rd convicts.
2. The facts are that on 29th August 2004 at about 1.00am the appellant together with the 2nd and 3rd convicts and others, who are on the run, mounted an illegal road block on the Takoradi-Tarkwa motor road at a spot between Nsuaem and Essam. They blocked the Road on both sides so that no one could drive through. The Appellant and his gang stopped a total of about 14 vehicles and escorted those on board out of their vehicles on knife and cutlass points. In all, about 40 passengers fell victim to the unlawful acts of the appellant and his gang. Under the actual acts of assault and battery, the appellant and his gang dispossessed their victims of all their monies and mobile phones. One of the victims was PW1 Anthony Nyameke Adolley alias P.K. who was driving his Urvan bus with Registration Number WR 1181 S from Tarkwa direction to Takoradi. On reaching the road block mounted by the appellant and his gang, he was ordered at gun point to get down with the other inmates of the vehicle. He was threatened with assault and in the process, they managed to collect his money, his vehicle key and the vehicle as well. They loaded the vehicle with all their booty and drove away. After they left Mr. P.K. managed to get to the Police Barrier at Apremdo and made a report. He later continued to Kwesimintsim Police Station to lodge a report. The Policemen at the Apremdo Barrier started checking all passengers from Tarkwa direction entering Takoradi. The appellant and his two fellow 2nd and 3rd convicts were searched on some of the vehicles and monies and mobile phones of Anthony Adolley alias P.K. were found on them. They were accordingly arrested. Later that morning P.K. and the occupants of his vehicle went to the Police Station to continue with the formalities of writing their Statements and saw the appellant and his fellow 2nd and 3rd convicts. P. K. and his team spontaneously identified them as the ones who robbed them of their monies, mobile phones as well as the bus. After Police investigations, they were charged before the High Court Sekondi, tried and convicted. The 1st convict/appellant was sentenced to 35 years Imprisonment with Hard Labour. The 2nd convict was sentenced to 20 years Imprisonment with Hard Labour and the 3rd convict sentenced to 35 years Imprisonment with Hard Labour.
3. We have noticed that at page 82 of the Record of appeal, there is a Notice of Appeal filed on 17th May, 2016 on behalf of the 3rd convict. Verification from the Mother Docket has revealed that the appeal of the 3rd convict was determined by this court differently constituted. This Notice of Appeal is therefore ignored as it has no bearing on the current appeal by the 1st convict/appellant.
4. On June 13, 2017, the 1st convict/appellant filed an application under Section 11(6) of the Courts Act, 1993 (Act 459) before the High Court, Sekondi for leave to file appeal out of time. Same was granted on 28th June 2017 and the 1st convict accordingly filed his Petition of Appeal on 4th July 2017. Counsel based the appeal on two grounds, namely:
1) Though the law requires the minimum sentence of 10 years and if offensive weapon is used then 15 years yet the sentence of 35 years imposed on the appellant is too harsh and excessive having regards to the following factors:
a) Appellant is a young offender and his first brush with the law is this very case in point
b) All items involved in the crime were retrieved and handed over to their respective owners
c) Appellant not represented at the trial though robbery is a first degree felony and therefore he was disadvantaged
d) The trial judge should have considered mitigating factors instead of aggravating factors
e) That the Appellant has spent a little over thirteen (13) years IHL since 2004 and a window has opened for him to be considered in terms of reduction of his sentence.
f) That times are hard as stated by Justice Taylor in HARUNA VRS THE REPUBLIC
g) That Prisons are congested and in some areas prison inmates sleep in turns
h) The role of Justice for All Mission comes to mind in any appeal like this
i) The Appellant has learnt his lesson with thirteen (13) years in prison and has vowed to lead a strait jacket life if released
2. At the hearing of this appeal, Counsel will ask leave to file written submission
Essentially, the appellant also has one ground of appeal as the second ground is indeed not a ground of appeal.
5. We have observed that in the judgment of the High Court at page 78 of the Record of Appeal, the appellant was sentenced to “`thirty-five (35) years I. H. L.” while the Court Notes in respect of same at page 80 of the Record of Appeal states that the appellant was sentenced to 25 years IHL. The sentence stated in the body of the judgment takes priority over that stated in the Court Notes especially since the sentence in the judgment is written both in words and in figures which tally. The appellant is thus right to file his appeal against the sentence of 35 years IHL as being harsh and excessive.
The gravamen of the appellant’s complaint in this appeal is that the 35 years’ IHL imposed on him is harsh and excessive having regard to the circumstances.
6. By way of preliminary remarks, the annexure to the written submission of the appellant being a photocopy of page 29 of the Mirror, Sunday May 11, 2013 is hereby struck out as incompetent. No annexures and or exhibits are permitted to the attached to written submissions as they are extraneous to the Record of Appeal.
1 (a) of the Grounds of Appeal:
7. In support of the petition of appeal for reduction of sentence, Counsel for the appellant pointed out that the appellant is a young offender and that the instant case was his first brush with the law. Counsel cited the now celebrated case of FRIMPONG alias IBOMAN V THE REPUBLIC (2012) 1 SCGLR 297 case where the Supreme Court, speaking through Dotse JSC posited that 1st offenders must normally be given a second opportunity to reform and play his or her role in society as useful and law-abiding citizens. For that matter, Counsel submitted that the sentence should be reduced to the minimum prescribed by law.
8. Counsel for the respondent resisted the plea for mitigation of sentence contending instead that the sentence of 35 years imposed on the appellant is lenient considering the manner in which the robbery was committed. Relying on the same IBOMAN’S CASE, Counsel for the respondent submitted that, the same case also stated that the court should also consider whether the first offender acted as a first offender and that where, as in this case, the first-time offender has committed a serious crime like robbery, a first degree felony, then it would be presumed that the first offender had divested himself of any lenient consideration. Counsel continued further based on the authority of the said IBOMAN’S CASE, that where the court found an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Once the court has decided to impose a deterrent sentence, the good record of the accused would be irrelevant. Counsel submitted that robbery, being a first-degree felony, carries a maximum sentence of life imprisonment as per Section 296(1) of the Criminal Offences (Procedure) Act, 1960 (Act 30). Counsel referred to the fact that the appellant and his gang used violence and the offensive weapons of cutlasses, knives and a gun shows that by law the minimum sentence that they could get is 15 years and therefore a sentence of 35 for the appellant falling between 15 years and life imprisonment was appropriate.
9. The assertion that the appellant is a young offender cannot be exactly determined from the Record of Appeal. Nowhere in the Record of Appeal, from the charge sheet, facts, evidence and the judgment was the age of the 1st appellant mentioned. The nearest clue to the age of the appellant can be found at pages 78, 51 and 47 of the Record of Appeal. At page 78, the Learned Trial Judge said he would consider the sentence of the 2nd accused who is the youngest among the accused persons. At page 51 of the Record of Appeal the 3rd convict admitted under cross-examination that he was 25 years old. At page 47 of the Record of Appeal, under cross-examination, the Prosecution put it to the second convict thus: “I am putting it to you that PW1, PW2 and about 15 other victims identified you as the small boy who robbed them.” (Emphasis added). This confirms the fact that the 2nd convict was the youngest among them. For the appellant therefore, he could either be older than 25 years or younger than 25 years but in any event, older than the 2nd convict. If he was younger than 25 years, his youthful age would be confirmed but if he was older than 25 years (and we don’t know by how many years), then it is possible that he could not be described as a youth. Under these circumstances of doubt, the benefit would be given to the appellant that he is a youth. Meanwhile, hear what the Learned Trial Judge who saw the appellant in person said of him in his judgment at page 76 of the Record of Appeal.
“… The defence of the first accused is not reasonable and probable. His statement Exhibit C smacks of a confession statement. … His demeanour shows how he could tell clever lies and he is not one to be believed and therefore I reject his defence.”
10. Fortunately, the appellant is not appealing against conviction but he appeared to the Learned Trial Judge as an unreliable person. In any event the Learned Trial Judge, observed at page 78 of the Record of Appeal that the appellant and his fellow convicts are from the Techiman area that is noted for serious robberies in Ghana and that considering all the efforts to eradicate this serious canker, it was rather increasing. He therefore said “I shall deal seriously with the accused persons to serve as deterrent to other like-minded persons. However, I shall consider the sentence for the second accused who is the youngest among the accused person.” The learned trial judge then convicted the appellant as already indicated.
11. The Supreme Court has affirmed the principles to abide by in imposing sentences on convicts which include mitigating factors such as the youthful age of the convict and his previous criminal record in the IBOMAN’S CASE cited supra.
Ground 1(b) of the grounds of appeal:
All items involved in the crime were retrieved and handed over to their respective owners.
12. The learned trial judge made the following Restitution Orders found at page 78 of the Record of Appeal.
“All six (6) mobile phones are to be given to Mr. William Kpobi, Principal State Attorney for onward transmission to their respective owners.
The jack knife is confiscated to the State and should be given to the District Officer, Ghana Police, Kwesimintsim.
The various monies tendered as Exhibits ‘P’, ‘O’ and ‘Q’ be kept by the Deputy Chief Registrar for the various owners to identify and collect them. However, PW1 Mr. P.K. Adolley’s money of ¢300,000.00 should be given to him forthwith. The Police Investigator, Mr. Ebow Idan Frowne to assist the Deputy Chief Registrar in the distribution.”
Counsel for the appellant relied on these Restitution Orders to say that the appellant did not benefit from the robbery committed as all the items involved in the crime were retrieved and handed over to their respective owners. Counsel submitted that on the basis of this, the sentence of his client ought to be reduced.
13. As pointed out by Counsel for the Respondent, the Record does not bear out the assertion that all the items involved in the crime were retrieved and handed over to their respective owners. The jack knife for instance was found on the appellant but it was not returned to him as it was confiscated to the State. The booty was loaded in the vehicle of PW1 which they forcefully took from him and driven away. At the time the vehicle was found abandoned, the booty had been taken away by the robbers. About 40 persons were victims. Only a few items were retrieved and ordered to be distributed as per the Restitution Orders.
14. The law is that even if the appellant and his gang had merely attempted to rob but were unsuccessful, an offence would still have been committed and they would be subject to the same sentencing regime. For about 40 victims, retrieval of only 6 mobile phones and sums of money totaling ⊄6,134,000.00 (GHC613.40) (the sum of Exhibits ‘L’, ‘O’ and ‘P’) can legitimately be conjectured to be minute. Exhibit Q was a mobile phone. All the robbery items in the possession of the appellant and the 2nd and 3rd convicts were retrieved from them but that does not mean all the items robbed were retrieved.
Ground 1 (c) of the grounds of appeal:
Appellant not represented at the trial though robbery is a first degree felony and therefore he was disadvantaged.
15. Counsel for the appellant submitted that once his client appeared for the trial and was unrepresented by Counsel, the trial judge should have advised his client to go for Counsel or seek legal assistance from the Legal Aid Scheme to ensure that the playing field was balanced. He did not cite any law imposing this duty on a trial judge or any authority for that matter. Counsel contended that on the basis of this, the sentence of his client ought to be reduced as he was thereby disadvantaged by the lack of legal representation.
16. Counsel for the Respondent rightly pointed out that it is only in murder trials that require the accused to be mandatorily represented by Counsel, either of his choice or assigned by the court and therefore it was not mandatory for the appellant to be represented by Counsel for the offence of robbery. There was also no legal obligation on the court to advise the appellant to go for Counsel. We have also perused the entire Record of Appeal and there is no indication that the court prevented the appellant from engaging Counsel. Certainly, no court advised the appellant to go in for counsel to prosecute this appeal on his behalf. This is not a valid ground for reduction of sentence.
Ground 1 (d) of the grounds of appeal:
The trial judge should have considered mitigating factors instead of aggravating factors.
17. This is a rehash of grounds 1(a) and (b), couched in different words. The truth of the matter is that the trial judge has a duty to consider both the mitigating and aggravating factors of the case and not one to the exclusion of the other as Counsel for the appellant is urging on this court. The trial judge amply considered both and found that the aggravating circumstances of the use of cutlasses, knives and gun with intent to prevent or overcome the resistance of the victims with threats of assault and death as well as the increase in the prevalence of armed robbery in Ghana outweighed the mitigating factors of the youthful age of the appellant, the fact that no one was injured or harmed and a few of the items retrieved.
Ground 1 (e) of the grounds of appeal:
The appellant spent a little over 13 years’ imprisonment with hard labour
18. Counsel submitted that by November 2018, the 1st appellant would have spent 14 years in prison. He considers this term served so far to be enough since long sentences would also mean an extra strain in the scarce resources of the State to cater for him for all the period in question as observed by Dotse JSC in the IBOMAN’S CASE cited supra.
19. The response of Counsel for Respondent is that sentencing is a matter of discretion and in so doing, the trial judge must consider all the factors that go into sentencing as enunciated in the case of HARUNA V THE REPUBLIC (1980) GLR 189 and if all the circumstances have been adequately considered, by the lower court, an appellate court ought not to interfere with the decision of the lower court. Again, as per the decision in BANDA V THE REPUBLIC (1975) 2 GLR 52, once a sentence falls within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that should go into mitigation of sentence, an appellate court should not disturb the sentence only because it would have felt disposed to impose a lighter sentence if it had tried the case at first instance.
20. These are sound propositions of the law as enunciated in those cases. However, the eight years’ IHL deterrent sentence imposed in the HARUNA CASE on the convict for unlawful possession of Indian hemp with a street value of less than fifty pesewas in today’s terms was reduced to five (5) years’ IHL and similarly, the deterrent sentence of 12 years’ IHL imposed in the BANDA CASE also for unlawful possession of Indian hemp was reduced to six (6) years’ IHL.
We have critically examined the judgment of the trial judge and we noted that he did not address the extra strain on the economic resources of the State to cater for prisoners who have been sentenced to lengthy years in prison as pointed out by Dotse JSC in the IBOMAN CASE cited supra.
The submission by Counsel for the appellant that the 14 years already served in prison is enough cannot be tenable as by statute, the minimum sentence for robbery with the use of offensive weapons is 15 years.
Ground 1(f) of the grounds of appeal:
That times are hard as stated by Justice Taylor in HARUNA VRS THE REPUBLIC
21. Counsel for the appellant cited the High Court case of HARUNA V THE REPUBLIC cited supra where Taylor J, (as he then was) relied on the harsh economic conditions in the country at that time and set aside a deterrent sentence of eight years’ IHL imposed on the appellant therein by substituting it with five years as aforementioned. Conceding that this court is not bound by this High Court decision, Counsel nevertheless urged this court to take the current harsh economic circumstances into consideration although ironically, he stated that he himself is not supportive of economic factors being used to commit criminal acts.
22. Counsel for the Respondent had a fitting response when she said that should harsh economic circumstances be accepted as a ground of appeal, then all criminals should be set free as the hard times apply to all of them. In any event the HARUNA CASE is distinguishable from the instant case in that the HARUNA CASE involved possession of Indian hemp with a street value less than ⊄480.00 (Gh⊄0.48) (fourty-eight pesewas) whereas the appellant in the instant case was convicted for highway robbery by the use of offensive weapons. Under the circumstances of this case, hard economic conditions cannot be a legitimate consideration for the reduction of the deterrent sentence in the instant case.
Ground 1 (g) of the grounds of appeal:
Prisons are congested and in some areas prisons inmates sleep in turns.
23. Counsel referred to the Exhibit of the Mirror Publication he attached to his written submission to prove his point that the prisons are indeed congested and the inmates sleep in turns. This Exhibit has already been struck out as not being incompliance with the Rules of Procedure. This argument is not tenable as a ground of appeal for the reduction of sentence. As Counsel for the Respondent pointed out, if this ground is accepted, then no convicted criminal will be sentenced to a term of imprisonment even where the statute creating the offence provides for only a term of imprisonment and no other form of sanction as in the case of robbery. No doubt this is a sound argument but the appellant is not asking for his sentence to be completely set aside but only a reduction in same. Judicial notice can be taken of the fact that Ghana’s prisons are seriously congested and Ghana has even attracted some international flack on account of this. We are therefore of the opinion that this state of unacceptable congestion in Ghana’s prisons could be taken into consideration in imposing lengthy and deterrent sentences.
Ground 1 (h) of the grounds of appeal:
The Role of Justice for All Mission comes to mind in any appeal like this.
24. Counsel for the appellant submitted that due to the congestion in the country’s prisons, the Judicial Service has established the Justice for All Mission to go round prison establishments to hear cases of prisoners on remand and appropriately grant them bail or set them free. Counsel conceded that this project is focused on remand prisoners only but nevertheless urged this court to reduce the sentence of his client to ease the congestion in the prisons. This is a rather tenuous submission as it would open the flood gates for all convicted prisoners who are serving sentences that are above the minimum prescribed by law but within the maximum allowed by law to petition for reduction of sentence based on the objectives of the Justice for All Mission. As Counsel rightly conceded, the Justice of All Mission is not a project to review the sentences of convicted prisoners but only targeted at remand prisoners.
Ground 1 (i) of the grounds of appeal:
The Appellant has learnt his lesson with thirteen (13) years in prison and has vowed to lead a strait jacket life if released
25. Counsel submits that his client has learnt a lesson from the time that he has already served in prison together with the fact that he did not benefit from the robbery and has accordingly vowed to lead a straight jacket life if released. Sentencing is done based on the criminal mental intent at the time the offence was committed and not on a change of heart after conviction. Any remorse of the convict could only have been taken into account at the time of sentencing and not several years after sentencing. Were that to be the case, all prisoners can plead same to avoid rightful and legally imposed sentences.
26. Most of the submissions conversed on behalf of the appellant, although appealing to conscience, are very dangerous as grounds of appeal. Acceptance of same would amount to opening the prison gates for almost all prisoners to get out. We acknowledge that Counsel for the appellant has committed great industry to the appeal. However, in canvassing those unacceptable grounds of appeal, what he did amounts to a drowning person clutching onto any straw hoping to survive. Straws have however, never served any person from drowning.
27. We must however say, that in hanging on any and everything for survival, Counsel and his client the appellant found a plank in the pronouncements of Dotse JSC in the IBOMAN’S CASE cited supra on the futility of sentencing convicts to lengthy prison terms. For a better understanding, it is appropriate to quote in extenso, Holdings (9) and (10) of the IBOMAN’S CASE where the appellant was sentenced to 65 years IHL for robbery.
“(9) It appeared that the sentence of 65 years’ imprisonment imposed on the appellant for the offence of robbery was punitive enough and might deter others who were right-thinking; and that such long sentence would appease society and safeguard them from criminal conduct. However, in the view of the Supreme Court, for such sentences to be really deterrent to others, a different approach must be adopted to the imposition of sentences. The court would therefore advocate a scheme of sentence where the length of the sentence, whilst being commensurate to an extent with the gravity of the crime and revulsion which law-abiding citizens felt towards the crime, would be such that, the peers and younger persons of society would have an opportunity to observe the life of the convict after his release and hopefully be deterred from committing crimes.
(10) On the facts and circumstances of the instant case, there was the need for a reduction in the sentence of 65 years’ imprisonment imposed on the appellant. The remission to be benefited by the appellant ought to be considered in any reduction of sentence. The court would also consider the fact that even though the robbery gang was violent, no one was injured or harmed during the robbery. In addition, most of the items had been retrieved. And long sentences such as was imposed on the appellant, i.e. 65 years’ imprisonment, meant that he was virtually being consigned to a life in prison throughout his active adult life. That would mean an extra strain on the scarce resources of the State to cater for him for all the period in prison. Those factors constituted mitigating circumstances which should have been considered by both the trial High Court and the Court of Appeal.”
29. Based on the foregoing analysis and the above observation by the Apex Court of the Land, this court has seen it fit to vary the sentence of the appellant as follows:
The sentence of 35 years’ imprisonment with hard labour is hereby set aside. In place thereof, the appellant is sentenced to 20 years imprisonment with hard labour, effective the date of his conviction, i.e. 18th November 2004. Pursuant to Article 14 (6) of the 1992 Constitution, this reduced sentence has taken into account the relative short period of less than three months that the appellant spent in lawful custody prior to his conviction. The appeal for reduction of sentence therefore succeeds.
Angelina M. Domakyaareh (Mrs)
(JUSTICE OF APPEAL)
Irene C. Larbi (Mrs) JA I agree Irene C. Larbi (Mrs)
(JUSTICE OF APPEAL)
Lawrence L. Mensah, JA I agree L. L. Mensah
(JUSTICE OF APPEAL)