KUMASI - A.D 2015
THE REPUBLIC - (Defendant)

CASE NO:  D15/121/15

The Appellant, a young man of 18 years and three others ( who have not appealed), were arraigned before the Circuit Court at Juaso on various charges under the Criminal and Other Offences Act, 1960, Act 29 as set out below :

1. Conspiracy, to steal contrary to section 23(1) and 124(1)

2. Causing unlawful damage, contrary to section 172(1) B

3. Unlawful Entry, contrary to section 152

4. Stealing, contrary to section 124(1)


However, the prosecution withdrew the 4th Count on stealing and the same was accordingly struck out by the trial court. The appellant, just like the other co-accused persons, pleaded guilty to the three counts and was convicted on his own plea, and was sentenced to 24 months imprisonment with hard labour. The other accused persons were also given the same sentence.


Aggrieved by this sentence, the Appellant filed a petition on 21/10/15, and the sole ground of appeal is that the sentence is excessive in the circumstances.


Briefly, the facts which brought about the prosecution are that the Appellant, an 18 year old student, together with another 18 year old student and a 21 year old mason, broke into the provisions store of the Complainant at Okyerekrom at about 1:30am on 30/09/2015. An eye witness who was alerted by the unusual noise peeped through his window and saw that the three young men had packed their booty into a hand bag ready to leave. The witness came out and on seeing him, these young men took to their heels. The 1st Convict was arrested and he mentioned the appellant and one other as his accomplices. These three young men admitted the offences in their cautioned statement to the police. The complainant alleged that there had been series of theft of provisions from her store but all efforts to arrest the culprits proved futile.


In arguing this appeal, counsel for the appellant described the circumstances under which the appellant got involved in the Act. That is, the Appellant who is a Form 2 SHS student and a boarder came home to pick up his reading glasses. It was very late and so he decided to sleep. In the process, he got involved with the other convicts. Counsel's plea was that being an SHS student, the custodial sentence may jeopardize his future. If prayed the court to impose a punishment that will correct the appellant, and not otherwise, especially, when he is a young and first offender.


On the contrary, the Learned Assistant State Attorney for The Republic was of the view that the 12 months sentence is not harsh and excessive. She argued that the court below in sentencing the Appellant, took into consideration all the mitigating factors that counsel has mentioned, before passing the deterrent sentence.


In criticizing a sentence as too severe, the concern is not so much that the trial court has exceeded its jurisdictional range, but rather that there were mitigating factors which were ignored or were not comprehended by the trial court. In imposing a sentence, a trial court must take all the circumstances of the case into account i.e. mitigating or aggravating factors.


In Asaah alias Asi v The Republic (1978) GLR 1, Apatu-Plange Ag. J. made very useful observations which this court also approves. His Lordship said thus:


...in dealing with an appeal of this nature the court has to find out whether there were any mitigating factors which the trial magistrate took or failed to take into consideration. If the record reveals that he took all the said mitigating factors into consideration before imposing the sentence, then his discretion can be said to have been properly exercised, and in the absence of any special circumstances, an appellate court will be slow to interfere with such a sentence. If, however, the record does not reveal that the trial magistrate took any such mitigating circumstances into consideration, then the appellate court will find out whether the said mitigating factors were such that if the trial magistrate had adverted his mind to them, he would probably not have imposed the said severe sentence.( The emphasis is mine).


From the record of appeal, the court below took into consideration the age of the appellant before passing sentence. At page 4 of the record of proceedings, the judge stated:


Having regard to the impunity with which the accused persons executed their action as well as the fact that , these offences have become alarming within the Ejisu-Juaben Municipality, I as a result, and in spite of the ages of the accused persons which are 18, 18 and 19 years respectively, am minded to give a deterrent sentence to send a signal to like-minded persons that the court will not deal leniently with them. In the circumstances, each of the accused person is sentenced to 24 months IHL on each count. The sentences are to run concurrently. Accused persons are to further sign a bond to be of good behavior for 12 months or in default 12 months IHL. Let the exhibits so far retrieved be returned to the Complainant.


It would appear from the face of the record that the court below took into consideration the age of the appellant, and indicated the purpose of the punishment so imposed. That notwithstanding, an appellate court can intervene if it is of the opinion that even though the sentence is meant to be deterrent, it is still excessive under the circumstances of a particular case.


When it comes to young offenders, the practice has been that custodial sentence is to be avoided, except in mandatory situations. Thus, in the case of Haruna v. The Republic [1980] G.L.R. 189 the court stated (holding 1):


When young men . . . 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.”


In a more recent case, Frimpong alias Iboman v The Republic (2012) SCGLR 297, the Supreme Court reiterated the view that generally, first offenders are treated differently. The Court observed in holding (7) thus:


It was generally accepted that, a first offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law-abiding citizen. It was therefore desirable for a first offender to be treated differently when a court had to consider the sentence to be imposed on a first offender vis-avis as second or habitual offender. However, notwithstanding the general principle that first offenders should be treated leniently, when sentence was being imposed, the measuring rod or standard in any given circumstance was the offence creating statute and the punishment provided therein...


The charges upon which the appellant was convicted are second degree felonies. In respect of the charges under sections 124 and 152 of Act 29, section 296(5) of Act 30 prescribes a sentence of a term of imprisonment not exceeding 25 years. Even though the charge under section 172 of Act 29 is also a second degree felony, the punishment is a term of imprisonment not exceeding 10 years, under section 296(2) of Act 30. In the case of conspiracy to commit a crime, the culprit, if proven guilty, can be punished as if the crime had actually been committed. In the instant case, the prosecution withdrew the stealing charge against the appellant and that diminishes the gravity of the conspiracy charge. More so, the items said to have been stolen were retrieved from the offenders and the trial judge made a restitution order. The value of the items stolen was suppressed, but they were said to be contained in a hand bag. I do not think groceries which can fit into a hand bag will cost a colossal amount"


There is no record of past conviction(s) for a similar offence by the appellant. In my opinion, no useful purpose will be served in keeping a first, young offender who is also a student, in prison for 24 months. He was incarcerated just at the beginning of a new academic year and has almost lost one term! Will that be the end of his education? What will be the social cost if his education is truncated? The trial judge could have still passed a reasonable deterrent sentence, bearing in mind all these mitigating factors.


As indicated above, there are many mitigating factors which justify the intervention of this court on behalf of the appellant. I think a sentence of three months will be adequate to register society's disapproval and also indicate to the appellant that criminal life is risky and ought to be avoided at all cost. The Appellant has been in prison since 30/09/2015. It is my hope that the three months sentence will be short enough to punish him, and long enough to reform him!


The appeal against Sentence is allowed. The sentence of 24 months imprisonment is reduced to 3 months imprisonment without hard labour on each count to run concurrently. However, I affirm the signing of a bond to be of good behaviour for 12 months or in default 12 months imprisonment with hard labour.