IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
GODWIN BOTER AND MUSTAPHA ABDULAI - (Appellants)
THE REPUBLIC - (Respondent)
DATE: 27TH JUNE, 2017
CRIMINAL APPEAL NO: H2/12/2016
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS) J.A.
EMMANUEL AMOAH FOR THE APPELLANTS
NANA AMA ADINKRAH FOR RESPONDENT
A. M. DOMAKYAAREH (MRS), J.A
1. This is an appeal against the judgment of the High Court, Kumasi sitting in its appellate capacity dated 30th July, 2014. The facts leading to this appeal are that the complainant in the case, one George Arkon, who is a shoe seller stays at Breman while A1 and A2 the appellants herein are both auto mechanics and stay at Breman and Tarkwa Markro respectively. A third suspect in the case known as Kowah is at large. On 2/12/12 about 4:00am, the Complainant went to the Breman lorry station to board a vehicle to Kejetia. Whilst the complainant was standing there he saw the appellants and the third suspect approaching him with a knife and clubs. The complainant on seeing them took to his heels but he was chased by the appellants and the third suspect who got a hold of him. The complainant was then stabbed with a knife beside the left armpit by one of them whom he could not identify among the three. The three then forcibly took from the complainant a cash amount of GH₡800.00, a Samsung mobile phone valued at GH₡120.00, four pairs of men’s shoes valued at GH₡28.00 and a leather bag valued at GH₡25.00, all to the total value of GH₡973.00. The three of them then fled and shared the items.
2. On 28/12/12 about 4:00 pm, the complainant was at Kejetia when he spotted Godwin Boter with the leather bag and identified it as his. The complainant arrested Godwin Boter and sent him to the Police Station where a report was made. The complainant was issued with a medical form to attend the hospital. Godwin Boter later led the Police to Tarkwa Maakro and identified Mustapha Abdulai the second appellant herein as one of his accomplices. The appellants herein admitted the offence in their investigation caution statements. The three accused persons were arraigned before the Circuit
Court, KMA, Kumasi on 31st December 2012, Kumasi and charged with three counts of offence, namely: -
· Conspiracy to commit crime contrary to section 23(1) of Act 29,
· Robbery contrary to section 149 of Act 29 and
· Causing harm contrary to section 69 of Act 29.
1. The appellants herein pleaded guilty to all the three counts. Before accepting their plea, the court explained the nature of offence and the procedure that takes place after the plea of Guilty on the three counts is accepted. The appellants, thereafter, maintained their plea of Guilty on all the three counts. The appellants were therefore convicted on their own plea on all the three counts by the Circuit Court on the said 31st December, 2012 and sentenced to 60 years I.H.L on each of the three counts with the sentences to run concurrently.
2. Being aggrieved by the said conviction and sentence by the trial judge, the appellants filed a Notice of Appeal to the High Court on 26/3/2014 pursuant to the leave granted by the court on 19th March 2014. They sought two reliefs from the High Court namely, that the Court: -
· Quash the conviction and sentences and enter a plea of not guilty, acquit and discharge the appellants; and
· Order a retrial.
Their grounds of appeal were that:
1. The learned judge failed to examine the plea of the appellants.
2. The convictions were wrong in law.
3. The facts do not support the charge preferred against the appellants.
4. The sentence of sixty (60) years is too harsh for youthful first time offenders, and
5. Further grounds may be filed upon receipt of the record of proceedings.
3. During the appeal proceedings at the High Court on 16th July 2014, counsel for the appellants argued only the appeal against the sentence having informed the court that they had abandoned the appeal against the conviction. Counsel for the respondent though she condemned the manner in which the offences were committed, conceded that the 60 years IHL was harsh. On 30th July 2014, His Lordship Edward K.B. Apenkwah sitting as a Justice of the High Court, Kumasi delivered a judgment on the appeal. The Learned Judge held that the sixty years’ IHL imposed on each of the appellants was harsh. He therefore set aside the said sentences on all the three counts. He substituted a sentence of seventeen years IHL on counts one and two on each of the appellants and four years’ imprisonment on count three on each of them to run concurrently.
4. The appellants further instituted the current appeal per their Petition of Appeal filed on
6/6/2016 pursuant to leave granted on 17th May, 2016 for a further reduction of the sentence imposed on them by the High Court on the following grounds.
GROUNDS OF APPEAL:
a) The appellants at the time the offences were committed were young offenders aged 20 years and 21 years respectively and also first offenders and plead for another reduction in sentence.
b) The appellants are first offenders and young offenders have already spent 4 years and plead that they have reformed and plead with the court to drastically further reduce the sentence so they can come out and turn over a new leaf.
c) The sentence of the High Court is excessive having regard to the fact that the robbery was not aggravated and there was no loss of life and the items taken would be less than One Thousand Ghana Cedis. (GH₡1000)
5. GROUNDS (a) AND (b) OF THE GROUNDS OF APPEAL:
(a) The appellants at the time the offences were committed were young offenders aged 20years and 21 years respectively and also first offenders and plead for another reduction in sentence.
(b) The appellants are first offenders and young offenders have already spent 4 years and plead that they have reformed and plead with the court to drastically further reduce the sentence so they can come out and turn over a new leaf.
Counsel for the appellants argued Grounds (a) and (b) together. He submitted that there was no record at the trial court or at the appellate court that the appellants are known to the law and therefore the presumption is that they are first offenders. Moreover, the fact that the High Court took into consideration the fact that the appellants are young offenders and have no bad antecedents in the judgment should be a reason for the further reduction in the sentence of the appellants. He relied on the following cases:
FRIMPONG VRS. REPUBLIC (2013) 43 MLRG 1
KAMIL VRS. REPUBLIC (2011) 30 GMJ 1
HARUNA VRS. THE REPUBLIC (1980) GLR 189
MANU VRS. THE REPUBLIC (2013) 55 GMJ 176
In all these cases, the common thread is that though sentencing is entirely within the discretion of the trial judge or the appellate court, yet two factors to be considered in determining the length of sentence include aggravating or mitigating circumstances such as extreme youth and good character.
8. GROUND (c) OF THE GROUNDS OF APPEAL:
(c) The sentence of the High Court is excessive having regard to the fact that the robbery was not aggravated and there was no loss of life and the items taken would be less than One Thousand Ghana Cedis. (GH₡1000)
In respect of this ground of appeal counsel for the appellant submitted that the sentence by the High Court is harsh and excessive taking into account the gravity of the act and the value of the items involved being only GH₵973.00
9. In her response to the submissions of Counsel for the appellants, counsel for the respondent submitted that the High Court judge took into consideration the youthfulness of the appellants as well as the fact that they are first offenders before varying the sentence imposed by the trial Circuit Court Judge. She submitted that the reduction in sentence from 60 years IHL to 17 years IHL on counts one and two and 4 years IHL on count 3 was a generous reduction which should not be disturbed. She further submitted that per the facts of the case, the appellants did not act as if they were first offenders. Also, that the harm caused during the robbery and the act of robbery itself should be the ultimate consideration in sentencing the appellants and not the value the items stolen per se.
10. This whole appeal can be comprehensively disposed of by considering one central issue, which is:
Whether or not the appellants are entitled to a further reduction of their sentence.
Article 19(11) of the 1992 Constitution of Ghana provides as follows: “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” Thus every offence for which a criminal is convicted has its sentence spelt out in the offence creating statute. In Ghana, the statute which provides for every crime and its punishment is the Criminal Offences Act, 1960 (Act 29) as amended. The rudiments on how criminal justice is to be dealt with is governed by the Criminal and Other Offences (Procedure) Act of 1960 (Act 30) also as amended. In situations where there is no specific sentence for a crime but the minimum and maximum sentence is prescribed, the judge needs to exercise discretion in meting out the sentence.
11. The essence of exercising discretion in meting out sentences is seen in holding 1 of the case of KOMEGBE &ORS V. THE REPUBLIC  2 GLR 170 where it was held as follows:
“In passing sentence, the trial circuit judge ought to have considered the following mitigating factors: (a) the fact that the offences were committed on New Year’s Day (usually declared a public holiday and celebrated with many festivities), (b) the extent of the damage caused which was unsubstantial and (c) the youthful age of the appellants and their hitherto clean record. The sentence must also depend upon the jurisdiction and discretion of the court. Such discretion was to be exercised in relation to the nature of the crime, its gravity or triviality, the frequency with which such crimes were committed and all the other surrounding circumstances.”
In HARUNA V. THE REPUBLIC cited supra, it was held that “the question of sentence was a matter of discretion with all courts of justice”. It was further held in holding 1 that:
“when young men (such as the appellant) have had their first brush with the law, it was essential in the interest of the reformative element in criminal justice that they be not sent to prison unless a prison sentence was a mandatory legal requirement. If a prison sentence was not mandatory, then as a general proposition, unless there were special circumstances calling for a custodial sentence, the courts must avoid incarcerating young offenders.”
12. Therefore, in sentencing as already noted, there are mitigating factors such as previous conviction, age and first offender, which are considered by the court. Hence in sentencing the mitigating factors relating to the crime, the criminal and the law on the sentence must be considered by the judge before meting out the sentence.
In the instant case the appellants were first sentenced to sixty years I.H.L to be served concurrently for each of the three counts of offences – namely, conspiracy to commit crime contrary to section 23(1) of Act 29, robbery contrary to section 149 of Act 29 and causing harm contrary to section 69 of Act 29. The High Court on appeal reduced the sentences to seventeen years IHL for counts one and two and four years IHL for count three. The basis for the reduction was that the sentence was harsh and excessive since the trial judge erred in law when he sentenced the appellants to sixty years’ IHL on count three a charge of causing harm which is a second degree felony. Under Section 296 (2) of Act 30, a person convicted for causing unlawful harm cannot be sentenced beyond a maximum ten years’ prison term. The fact that the appellants were young and first offenders, each not more than 21 years was also taken into account by the High Court Judge.
13. The question therefore is what does the law prescribe as the sentence for the offences which the appellants were convicted of?
Section 24(1), 149 and 69 of Act 29 provide as follows:
“24. Punishment for conspiracy
(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence.
A person who commits robbery commits a first degree felony.
69. Causing harm
A person who intentionally and unlawfully causes harm to any other person commits a second degree felony.”
In the instant case, with respect to charge of conspiracy, the offence was actually committed, therefore, following a plea of Guilty the appellants should be given the same sentence as the substantive offence of robbery to which they also pleaded Guilty. The punishment for robbery where an offensive weapon is used as in the instant case is a minimum of fifteen years as provided by the Criminal Code (Amendment) Act, 2003 (Act 646). No upper limit has been provided. The High Court judge could by law not impose a sentence of less than fifteen years for counts one and two. On count three, the High Court could impose a sentence of ten years or less.
14. From the foregoing, it can be seen that the High Court judge was right in holding that the sentence for causing harm was to be a term of imprisonment not exceeding ten years. Hence the discretion was exercised rightly and judiciously when the appellants had a sentence of four years substituted for the offence of causing harm.
The Supreme Court in the case of NAGODE V. THE REPUBLIC  2SCGLR 975 at page 984 per Anin JSC in considering the sentence of a robbery on appeal put it succinctly when he held as follows:
“However, we are of the opinion that what the trial court must first consider in sentencing an accused person, is the law regulating the sentence. A court has no jurisdiction to impose a sentence that is not conferred on the court by the statute creating the offence. In this case, the trial judge could not impose any sentence below the minimum set down by statute. The Criminal Code (Amendment) Act, 2003 (Act 646), makes it clear that when an offensive weapon is used in the commission of robbery, the minimum sentence should be fifteen years. In this case, the learned trial judge found that the use of a pistol in the commission of the offence (which is an offensive weapon by all standards) should attract an enhanced sentence. The trial court may also consider whether there are mitigating factors on record, e.g. the appellant being a first offender, his age and other matters.”
15. In the instant case, a knife and clubs were used by the appellants in committing the offence. The victim was stabbed with a knife which is as an offensive weapon. The trial judge sentenced the appellants to sixty years ‘IHL for counts one and two. However, the appellate High Court judge substituted same with the sentence of seventeen years for the same counts. This was an appropriate exercise of discretion on the part of the High court for which he cannot be faulted. Moreover, both the trial judge and the High Court judge ordered that the sentences be served concurrently which showed that the appellants experienced the leniency of the court in that regard. This is due to the fact that sentences are to be served consecutively and not concurrently except when ordered by the court. This is provided in section 301 of Act 30 as follows:
301. Sentences consecutive unless the Court otherwise directs.
“Where a person after conviction for a criminal offence is convicted of a different criminal offence, before sentence is passed on that person under the first conviction or before the expiration of that sentence, a sentence which is passed on that person under the subsequent conviction, shall be executed after the expiration of the first sentence, unless the Court directs that it shall be executed concurrently with the first sentence or a part of it.”
16. The sentences meted out to the appellants by the High Court fit both the crime and criminal. Therefore, there is no need for a further reduction of the appellants’ sentence since there was no error of law involved in their sentencing.
17. The only area of omission in the judgments of both the trial Circuit Court and the appellate High Court is that nothing was mentioned about the effect of the period which the appellants spent in custody prior to the sentence. Article 14(6) of the 1992 Constitution which considers the right to liberty of criminals provides as follows:
“(6) 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.”
From pages 3 and 4 of the Record of Appeal it is stated that the appellants were arrested on 28th
December 2012 and sentenced on 31st December 2012. The appellants therefore spent three days in lawful custody prior to the sentence. This court is of the considered opinion that even taking Article 14 (6) of the 1992 Constitution into account, the three days are so insignificant that it will not disturb the sentences handed down by the Learned High Court Judge.
18. In conclusion all the three grounds of appeal are dismissed. The appeal itself follows suit as being dismissed in its entirety and the judgment of the High court upheld.