IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
AKWASI ANTWI - (Plaintiff)
THE REPUBLIC - (Defendant)
DATE: 7TH DECEMBER, 2015
CASE NO: D15/115/15
JUDGES: HER LADYSHIP ANGELINA MENSAH (MRS.) JUSTICE OF THE HIGH COURT
BISMARK NSIAH ABOAGYE FOR THE APPELLANT
EMMANUEL LAURENCE OTOO BOISON FOR THE REPUBLIC
The Appellant herein, Akwasi Antwi, was convicted and sentenced to an enhanced term of 18 years imprisonment with hard labour by the Circuit Court Juaben, for brutally assaulting his wife.
The charge was as follows:
STATEMENT OF OFFENCE
Causing Unlawful Harm contrary to section 69 of Act 29/60
PARTICULARS OF OFFENCE
AKWASI ANTWI: FARMER; On the 15th day of June, 2009 at about 12:30pm at Afraku near Juaben in the Ashanti Circuit and within the jurisdiction of this Court caused harm to one Abena Sarfowaa by inflicting deep machete wounds on her.
Briefly put, the Appellant who is married to the Complainant attacked her on her farm on 15/06/09, and succeeded in inflicting multiple cutlass wounds on her. He pleaded Not Guilty to this charge and was convicted and sentenced after a full trial on 12/02/2010. Aggrieved by the 18-years sentence imposed on him, the Appellant filed the instant petition .
GROUND OF APPEAL
The sentence was harsh and excessive.
The sole issue before this court is whether or not the 18 years sentence imposed on the Appellant by the trial court is excessive bearing in mind the circumstances of the case.
In arguing the appeal, counsel for the Appellant urged the court to consider the existence of numerous mitigating factors and mitigate the sentence. In particular, Counsel submitted that the Appellant has five children with the Complainant who are all under eight (8) years of age and that the incarceration of the Appellant has truncated their education because he was the bread winner for the family.
Counsel then invited the court to consider the fact that the Appellant has shown remorse during the five years he has been in prison. He prayed the court to have sympathy with the Appellant and mitigate the sentence imposed on him.
The Learned Senior State Attorney who was in court did not contest the Appeal against sentence. He shared the views of Counsel for the Appellant that the 18 years sentence is harsh and that the court should exercise its discretion to reduce the sentence.
It is provided under section 69 of the Criminal and Other Offences Act, 1960, Act 29 as follows:
A person who intentionally and unlawfully causes harm to any other person commits a second degree felony.
Being a second degree felony, the punishment is provided for under section 296 (2) of The Criminal and Other Offences Procedure Act, 1960, Act 30 thus:
Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years.
The offence of causing Unlawful harm under section 69 of Act 29 does not fall within the category of offences to which section 296(5) of Act 30 apply. Apart from the permissible ten years range for imposing punishment under section 69, a judge may also impose an enhanced sentence where the accused person has previous convictions for a similar crime. This can only be taken into consideration after the accused has been convicted. (See section 300 of Act 30).
In perusing the record of appeal, i noticed that the trial judge took several factors into account before sentencing the Appellant. First, he considered the mitigating circumstances, i.e. the fact that the Appellant married the Complainant in the year 1992 in which case all their children were minors at the time of conviction. It is clear from page 33 of the record of proceedings that this mitigating factor weighed on the mind of the trial judge.
After conviction, but prior to sentencing, the Prosecution informed the court that the convict was known for a similar offence. The trial judge then commented on this prior conviction and then decided to impose an enhanced sentence. These can be found at pages 33 and 34 of the record of appeal thus:
I consider the conduct of the accused to be very reprehensible. He does not value human life including his own. He left the prisons not long ago only to commit the same kind of offence that made him a prisoner on the 10/12/08. The accused has the propensity for committing violent crimes.
The accused is a real threat to society. It is clear that a short custodial sentence and even an amnesty mean nothing to him. I am minded to impose a deterrent and an enhanced sentence on the accused who appears to me to be just incorrigible. The offence for which he now stands convicted attracts a maximum custodial sentence of ten years... I am minded to sentence the accused to 9 years but he deserves an enhanced sentence. I therefore sentence him to 18 years I.H.L.
Can it be said on the basis of the record of proceedings that the sentence was wrong in principle? Obviously not! Having considered the applicable principles of sentencing, the trial judge cannot be faulted for imposing a sentence which is within the legally permissible range and where circumstances existed for the enhancement of the sentence. See Frimpong alias Iboman v The Republic,(2012) SCGLR 297, Kwashie v The Republic ( 1971) 1 GLR 488 at 493; Kamil v The Republic (2011) SCGLR 300.
Was the sentence of 18 years excessive, given the circumstances of this case? Put differently, are there factors which call for this court's intervention with the 18 years sentence?
As was held in ODONKOR V THE REPUBLIC ( 1967) GLR 690, CA,
The High Court will not in ordinary circumstances interfere with the discretion exercised by the trial court, unless the trial court has acted upon a wrong principle or overlooked some material facts or factors, or unless the sentence is so manifestly excessive in view of the circumstances of the case as to be unjust.
Also, in BANDA V THE REPUBLIC (1975) 1 GLR 52, the Appellate Court observed in holding 5 thus:
The exercise of the power of sentencing lay entirely within the discretion of the trial court, and provided the sentence fell within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that should go in 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... (See also IMPRAIM V THE REPUBLIC (1991) 2 GLR 39)
These apart, an Appellate Court could still interfere with the Sentence imposed by a trial judge if the circumstances show that the sentence was manifestly excessive. So, in the Banda case, referred to supra, the Appellate Court stated (holding 5):
Even though the appellant had a bad criminal record and had previously been convicted of an offence similar to the one for which he was standing trial, the sentence passed on him was excessive especially since the trial judge failed to consider the fact that the appellant had "gone straight" for the significant period of five years since his last release from prison.
In the instant case, even though the 18 sentence was not wrong in principle, and that the trial judge in exercising his discretion had considered the existing mitigating as well as aggravating factors, I think the enhanced sentence of 18 years is manifestly excessive bearing in mind the marital relationship between the Appellant and the Complainant. This married couple have young children who deserve to be raised by both parents. Besides, it is on record that the Appellant has turned over a new leaf during his five years incarceration.
Accordingly, I will allow the appeal against the sentence. The enhanced sentence of 18 years imprisonment with hard labour is red