SOWAH J.A.

Background Facts

The appellant in this case, together with four others were convicted by the High Court, Kumasi on 10^th June 2009 with conspiracy under Section 23(1) of the Criminal and Other Offences Act, 1960 (Act 29), and robbery under Section 149 of Act 29. They were each sentenced to various terms of imprisonment as follows:

A1, A3 and A5 were sentenced to twenty (20) years imprisonment with hard labour (IHL) effective from the 19^th day of May 2002 on each of the two counts, both to run concurrently.

A4 admitted the offence. For telling the truth and assisting the Court in this manner, he received a lesser sentence of fifteen (15) years imprisonment with hard labour (IHL) on each of the two counts, both to run concurrently and effective from 19^th day of May 2002.

The appellant in this case, who was A2 at the trial court however received a harsher sentence of thirty years imprisonment with hard labour (IHL) on each of the two counts, both to run concurrently effective from 19^th day of May 2002.

Grounds of Appeal

Pursuant to leave granted, the appellant filed his petition of appeal on 15^th March 2017 in mitigation of sentence. He is praying the court to temper justice with mercy and reduce the sentence to the minimum. His grounds of appeal are:

(1) The appellant regrets his action and is out of deep remorse that he is praying for mitigation of sentence;

(2) The appellant is a first offender who has learnt his lessons the hard way in prison hence his plea for mitigation of sentence;

(3) The appellant vows to turn over a new leaf and to keep away from all forms of crime in the future;

(4) The appellant has a wife and children of school going age, who have dropped out of school because of his incarceration, hence his plea for reduction of sentence.

The offence of robbery under which the appellant was convicted is a first-degree felony with a maximum sentence of life imprisonment. A convict is liable to imprisonment for a minimum term of ten years, or a minimum term of fifteen years if the offence was committed with the use of an offensive weapon. See: Section 149 of the Criminal Offences Act 1960, Criminal Offences Act, 1960 Act 29 and section 296 (1) of the Criminal and Other Offences (Procedure) Act 1960, Criminal and Other Offences (Procedure) Act, 1960 Act 30.

The facts of the case disclose that it was the appellant who organized the attack on the victim/complainant and provided the gun that was used. He pointed the gun at the victims head during the attack and asked the victim to surrender her car keys. He was the first to be arrested and led police to arrest the other accused persons and to retrieve the stolen items.

The minimum sentence the trial court could impose was 15 years due to the offensive weapon he used.

The appellant in his first ground of appeal states that he is a first offender. This cannot be correct because he had admitted a previous conviction for robbery at the trial of the case which is the subject of the instant appeal. Indeed it was during his cross-examination of PW2, the police investigator that the lawyer for the appellant brought up the issue of appellant’s previous conviction for robbery. [See page 16 of the record of appeal] For that earlier offence of robbery, he had been sentenced to seventeen years IHL. He would have succeeded in deceiving this Court, conduct which amounts to perjury, but for truth revealed in the record of appeal. This lie casts doubts on the appellants' “vows to turn over a new leaf and to keep away from all forms of crime in the future” which is his second ground of appeal. This Court cannot believe that the appellant now has a contrite heart.

In any case, the appellant may be remorseful but that in itself is not sufficient ground to reduce a sentence. As was held in the case of Apaloo & ors vs. The Republic [1975] 1GLR:

“The court would interfere only when it was of opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle.”

The trial court imposed the sentence of 30 years IHL after the appellant’s conviction on 10^th June 2009, a little over seven years after the appellants' arrest in May 2002. From the facts on record it can be presumed that the appellant was in custody throughout the period between arrest and conviction.

Article 14 (6) of the 1992 Constitution provides:

‘Where a person is convicted and 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.’

In Bosso vs. The Republic [2009] SCGLR 420, the Supreme Court stated that the fact of compliance with Article 14(6) of the Constitution must either be explicitly or implicitly be clear on the face of the record of appeal. It preferred the explicit approach as the better method than not stating at all whether the period spent by the convict in lawful custody before imposing sentence had been taken into consideration or leaving the appellate court to make inferences.

In this present case on appeal the trial judge failed to explicitly indicate on the face of the Record that he had done so. However, in convicting and sentencing the appellant in June 2009, he made an order that the sentence was to run from May 2002. It appears to me that this was the trial judge’s attempt to comply with the Constitutional provision.

The order for the sentence to be effective from the date of arrest constitutes passing a retroactive sentence. This was a grave error because by law, a sentence of imprisonment ought to commence from the date on which it is pronounced.

Section 315(3) of the Criminal and Other Offences (Procedure) Act, 1960 Act 30 provides:

‘A sentence of imprisonment commence on and includes the day on which it is pronounced.’ See also Ojo & anor vs. The Republic [1999-2000] 1GLR 169 C.A.

The sentence that was imposed on 10^th June 2009 ought properly to have commenced on that date and

 not back-dated to 19^th May 2002 when the appellant was arrested. It was given per incuriam and is an error of law apparent on the face of the Record which must be corrected. To quote Atuguba JSC in

Network Computer System Ltd vs. Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218:

“A court cannot shut its eyes to the violation of a statute as that would be very contrary to its raison d’etre”.

Accordingly the order of the trial judge that: “A.2 is now sentenced to a term of Thirty (30) years imprisonment with Hard Labour (IHL) on each of the two counts both to run concurrently and effective from 19^th day of May 2002” is hereby set aside.

The appellants' co-accused received sentences of 20 and 15 years IHL respectively for each of the two counts to run concurrently. He received 30 years IHL. Considering that the offence is a first degree felony with a maximum sentence of life imprisonment that the trial court could have imposed, the key role the appellant played in the robbery which I have already alluded to as well the fact that this was not the appellants' first brush with the law, it would appear that the harsher sentence was fair. Even though the appellant pleaded for mercy at the trial court, he still received a harsher sentence because he had admitted a previous conviction for robbery for which he had been sentenced to seventeen years imprisonment with hard labour (IHL)

The question however is whether it was proper for the trial judge to take into account the admitted earlier conviction of the appellant in sentencing him to 30 years IHL.

Section 117 of the Criminal and Other Offences (Procedure) Act 1960, Act 30 merely provides for how a previous conviction or acquittal may be proved and is not much of a guide as to when it is proper to do so. The Supreme Court therefore had occasion to give a Practice Direction on the consideration of previous convictions in passing sentence. van Lare, Sarkodee-Adoo and Crabbe, JJ.S.C in the case of Amzat Bello v. Commissioner of Police [1961] GLR 573 in a judgment delivered by van Lare, J.S.C. said:

‘A previous conviction to be taken into consideration in passing sentence is one in which the sentence imposed has been served, and after which the person has been subsequently convicted, but not, as in the instant case, where the appellant is still serving the alleged previous conviction and the offence was not committed after serving the earlier sentence.

In the case of the appellant, it is clear on the Record that he was still serving the earlier sentence at the time the trial judge purported to take it into consideration in passing the harsher sentence. This was not a proper exercise of discretion and the sentence must be set aside as causing substantial miscarriage of justice against the appellant.

Now, having set aside the sentence by reason of the error in considering a purported previous conviction as well as the retrospectivity of the sentence imposed, we are obliged to re-evaluate the entire proceedings in this present appeal and arrive at an appropriate sentence which is commensurate with the offences charged.

We do so bearing in mind the factors and principles enunciated in cases like Hodgson vs. Republic [2009] SCGLR 642, Kamil vs. Republic [2011] SCGLR 300 and Kwaku Frimpong @ Iboman vs Republic [2012] SCGLR 297, such as 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.

Having re-evaluated the entire proceedings in this present appeal bearing in mind the pivotal part played by the appellant, we are of the view that a sentence of 25 years IHL for each of the two counts of conspiracy and robbery to run concurrently, would be reasonable and commensurate with the offences charged.

We are however of the view that after having set aside the retrospective sentence, the appellant will be unfairly prejudiced if we impose a 25 year sentence without taking into consideration the 7 years he spent in lawful custody before his conviction. Accordingly, we shall impose a sentence of 20 years

IHL on each count to run concurrently, and with effect from the date of conviction, which is 10^th June 2009.

The appeal against sentence succeeds in part.