ACCRA - A.D 2017
THE REPUBLIC- (Respondent)

DATE:  6THJULY, 2017


The appellant was charged with Murder contrary to section 46 of the Criminal Code 1960, Act 29. He entered a plea of ‘Not Guilty’, and taking advantage of section 239 of the Criminal (Procedure) Code 1960, Act 30 entered a plea of “Guilty” to the lesser offence of Manslaughter. Consequently he was summarily convicted for Manslaughter by the trial High Court, Ho on 12th May 2008.


The facts as presented to the trial court were that there was a long standing dispute between the parents of the deceased and the appellant over family land. On 13th December 2002, the appellant was at the farm with two other persons to gather sweet berries. He was confronted by the deceased who insisted that he would not permit the appellant to carry the berries to the market. A struggle/fight ensued and the deceased picked a stone to hit the appellant whereupon the appellant also picked the deceased’s cutlass and brandished it to prevent the deceased from getting to him. The cutlass cut the stomach of the deceased who died as a result.


A lengthy submission in mitigation of sentence was made on behalf of the appellant who was represented by counsel. The prosecution did not oppose the plea of mitigation as it conceded that the deceased had been the aggressor all along.


The trial judge sentenced the appellant to 15 years imprisonment with hard labour with effect from the date of conviction, that is 12th May 2008, having, he said, taken into consideration the plea in mitigation as well as the fact that the appellant had been on bail for some time during the period prior to the trial.


On 15th December 2015, the appellant was granted leave by this court to file his petition of appeal.

The pursuant Notice of Appeal filed on 8th January 2016 is for mitigation of sentence and has the following grounds of appeal:


That the trial court’s ought to have taken the circumstances of the case into account, particularly, that the victim in the case was the aggressor and had first attacked the appellant, whose purported self-defence eventually resulted in the victim’s demise


The trial court should have also taken into account that the appellant had shown tremendous remorse from the onset and had pleaded guilty to the charge of manslaughter.


The victim and appellant were first cousins and the family had long mended their differences and wish to seek the Courts support to make their reconciliation total and complete.


Appellant has served more than half of his sentence and has been of good behavior at the prison facility and is seeking opportunity to re-start his life


In the written submissions filed by the appellants counsel however, he neglected to argue the appeal under the stated grounds but rather argued it under the following heads:

1. First time offender;

2. Good character;

3. Age and physical condition.

4. Reconciliation and unity of family.


In his conclusion, counsel submitted that “the Presidential Pardon from which appellant has benefited must not be a bar to the Court’s power and authority to hear our argument”.


It is noted that this terse reference to a presidential pardon is the only indication that the appellant has received presidential pardon.


Counsel for the Republic/Respondent did not file any submissions in response, and the written submissions of appellants counsel do not disclose further details of the terms or extent of the Presidential pardon to the appellant, hence this Court which is being called upon to exercise discretion in mitigating sentence does not know whether or not the appellant is at the moment in prison.


Under Article 72 (1) of the 1992 Constitution, the President, acting in consultation with the Council of

State, has the power to do any of the following:

(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or

(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or

(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or

(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence.


In the light of the present appeal and appellants lawyers statement that the appellant has benefitted from a presidential pardon, but considering that this appeal is not seeking a quashing of the conviction but is for mitigation of the sentence of 15 years imprisonment imposed with effect from 12th May 2008, it can be presumed that the presidential pardon reduced/remitted the number of years the appellant would otherwise have spent in custody.


Nevertheless, the merits of the appeal must be considered since having complied with section 11 (2)(6) of the Courts Act 1993 Act 459, the appellant is exercising a right to appeal the judgment of the High Court by virtue of Article 137 of the 1992 Constitution. We agree with the appellants counsel that the pardon is not a bar to the Court’s power and authority to hear this appeal as a presidential prerogative of pardon and an appeal are not mutually exclusive. In the English case of R. vs. Derek Bentley (deceased) [1998] EWCA Crim 2516, the deceased who had been executed in 1953 after a conviction for murder was given a posthumous royal pardon in 1993 in respect of the sentence of death passed upon him and carried out. However, it was not until 1998 that the Court of Appeal quashed his conviction for murder, holding that pardon and appeal are not mutually exclusive and it is an appeal which clothes the courts with jurisdiction to determine the case on its merits.


The gist of the grounds of this instant appeal is that the learned trial judge failed to give adequate consideration to the issues raised in the plea for mitigation; which if he had, should have resulted in a more lenient sentence.


An examination of the record of proceedings of 12th May 2008, at pages 8 and 9 contain the plea for mitigation made by the appellants counsel before he was sentenced. He reminded the trial court that the appellant and the deceased were cousins. He apologized on behalf of the appellant for the sad incident and the remorse of the appellant, pointing out that even whilst out on bail after two and a half years in custody, the appellant had consistently attended court until his committal for trial. Counsel mentioned that the appellant was a first offender, and had children. He proposed that a minimal sentence be passed and that the trial court should consider asking the appellant to pay compensation as permitted by section 148(1) of Act 30 which would at least help the family that the deceased had left behind.


In response, the trial judge said in passing sentence:


“I have taken the plea of mitigation for the accused by counsel for the accused. I am however of the view that having regards to the seriousness of the offence a mere compensation may not do justice in this case. The accused therefore is sentenced to 15 years in hard labour to take effect from today, i.e. the date of his conviction since he was on bail for sometime during the period to the trial. The victim’s estate may take steps to seek compensation from the accused.”


Therefore, on the face of the Record, the trial judge duly considered all the matters raised in the plea for mitigation before passing sentence. He was however of the view that the offence of manslaughter was so serious that a custodial sentence had to be passed.


The question is whether the sentence of 15 years imprisonment was reasonable or harsh on the facts and in the special circumstances of this case.


Section 50 of the Criminal (Offences) Act 1960, Act 29 provides that:


‘A person who commits manslaughter commits a first degree felony”


And it is provided by Section 296(1) of the Criminal and Other Offences (Procedure) Act 1960, Act 30 that:


Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or any lesser term.”


These sections thus empowered the trial court to impose any number of years imprisonment up to life imprisonment for the offence to which the appellant pled guilty. The appellant was given 15 years.


The fact that deceased was the aggressor, that the appellant was a first time offender and of good character, as has been urged in this appeal, were all duly considered by the trial judge in passing sentence and rightly so. The age and the fact that a convicted person is a first time offender are always taken into account to mitigate the sentence to be imposed as was held in Abu vs. The Republic [1980] GLR 294, and Haruna vs. The Republic [1980] GLR 189-192. Also, deep remorse and the good character of a convict generally is held to have the effect of inducing leniency during sentencing, especially where there is no previous conviction See Kungua vs. The Republic [1984-86] 2 GLR 489-501.


What is left to consider are the submissions relating to the physical condition of the appellant and the quest for reconciliation and unity of the family. These factors were not existent when the appellant was sentenced, and they don’t appear to be the appellants’ strongest points in this appeal. His counsel says the appellant was 43 years at sentencing and is now 52 years and his “physical condition is not in danger”. Thus, he is not a very old convict in the twilight of his life nor is he in physical danger to merit consideration on compassionate grounds. As to the claim that in the view of the family, the reconciliation process with the family is slow because of the appellant’s incarceration, it is difficult to appreciate how this can be considered a factor in reviewing the sentence. It is indeed sad to note that the appellant and his victim were first cousins. However, a sentencing court does not consider a family’s desire to have a convict re-united with them as a basis in determining the sentence to impose.


The factors and principles to be borne in mind in sentencing have been considered in numerous cases like Kwashie vs. The Republic [1971] 1 GLR 488, Hodgson vs. Republic [2009] SCGLR 642, Kamil vs. Republic [2011] SCGLR 300 and Kwaku Frimpong @ Iboman vs Republic [2012] SCGLR 297.


These include the nature of the offence, the type of punishment that can be imposed for the offences charged, the purpose sought to be achieved by imposing that sentence and a consideration of mitigating and aggravating factors.


The record of appeal shows that the offence was committed by the appellant purportedly in self-defense. He did not intend to kill his cousin but the facts are not in doubt that the deceased died as a result of an unlawful harm. See sections 52 and 76 of the Criminal Offences Act, 1960 Act 29.


However, the comparatively light sentence of 15 years was imposed on the appellant for admitted manslaughter because of the mitigating circumstances and genuine remorse for his actions.


Section 30(a) (ii) of the Courts Act 1998, Act 459, permits an appellate court to reduce or increase a sentence in appropriate cases and on settled principles. One such basic principle is that an appellate court will not interfere with a sentence of a lower court unless the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle. See: Apaloo & ors vs. The Republic [1975] 1GLR 156.


Furthermore, section 406(1) (a) of Criminal and Other Offences (Procedure) Act, 1960 Act 30 states that:


“. . . a finding, sentence, or order passed by a court of competent jurisdiction shall not be reversed or altered on appeal or review on account—

of an error, omission or 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; or . . .

unless the error, omission, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice.


Section 31(2) of the Courts Act 1993, Act 459 requires an appellate court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred.


After a careful evaluation of the record in this present appeal, our considered view is that the sentence cannot be described as harsh considering the maximum term that could have been imposed. It has not been shown that there was any error in the sentencing that has resulted in a substantial miscarriage of justice. We are satisfied that the sentence of 15 years imprisonment IHL was reasonable and commensurate with the offence of manslaughter, and we do not find any present mitigating circumstances justifying a review of the sentence.


The appeal is accordingly dismissed as being without merit.