IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
DATE: 16TH NOVEMBER, 2015
CASE NO: D15/177/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
BEN ABDALLAH BANDA FOR THE APPELLANT
NO REPRESENTATION FOR THE RESPONDENT
This is an appeal against the Judgment of the District Magistrate, Nyinahin, Ashanti Region. The appellant was arraigned before the Nyinahin Distrcit Court on a charge of stealing, contrary to section 124(1) of the Crminal Offences Act, 1960, Act 29.
On his maiden appearance before the court, his plea was not taken because the prosecution indicated to the Magistrate that investigations were ongoing and did not want any interference with their investigations. Their request was accepted by the court and the appellant was kept in police custody.
Subsequently, his plea was taken and he pleaded guilty. The trial Magistrate proceeded to convict and sentence him to 270 days imprisonment with hard labour. It is against this sentence that the instant appeal has been brought.
The facts which led to the conviction and sentence are as follows: The Appellant is a caretaker to one Alhaf Issufu, who rents out excavators. On 13/09/2015, a customer rented or hired an excavator from the Appellant after the two had negotiated and agreed on GH¢16,000.00. The Appellant collected the money from the hirer, but failed to account for same to his master. Following a report made to the police, the appellant was arrested.
GROUND OF APPEAL
The sentence is too harsh taking the circumstances of the case into consideration.
In arguing the appeal, Learned Counsel for the Appellant contended that the Appellant is a first and young offender, aged 41 years; he has a family with three children and is the sole bread winner of the family. Continuing, Counsel argued that the incarceration of the Appellant will jeopardize the maintenance of his family and the future of the children. Concluding, counsel submitted that the Appellant had already refunded the money at the time of his conviction and sentence, and prayed the court to spare him the ordeal of custodial sentence.
The record of proceedings, which also contained the petition and ground of appeal, were served on the Chief State Attorney, Kumasi on 20/10/2015 together with a hearing notice. However, at the time of hearing the appeal, the Republic was not represented, an indication that they were not contesting the Appeal.
The grounds upon which an appellate court can interfere with the sentence given by the court below was adequately discussed in the case of APALOOV THE REPUBLIC (1975) 1 GLR 156, CA. The Court of Appeal held thus (holding 11):
The principles upon which the court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. 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. Kwashie v. The Republic  1 G.L.R 488 at pp. 493 and 494, C.A. considered.
Again, in ASAAH alias Asi v THE REPUBLIC (1978) GLR 1, Apatu-Plange Ag. J. made very useful observations which this court also endorses. His Lord stated:
...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).
I have perused the record of appeal. From the proceedings of the court below, the Magistrate made some comments prior to sentencing the Appellant as captured below:
The convict pleads for leniency. The offence of stealing means dishonest appropriation. It is a fact that money belonging to another was received by the convict. It is also a fact that the convict dealt with it in a manner to deny the owner the use or its benefits thereof and that is clearly dishonest. The convict is not known to the prosecution. The refund of the entire sum he had appropriated does not nullify the offence. That only becomes a mitigating factor.
It is apparent on the face of the record that the magistrate took into consideration the fact that the accused had no previous criminal record and had also refunded the full amount he had dishonestly appropriated, before exercising his discretion.
However, it must be borne in mind that the Appellant had no legal representation at the court below. Therefore, it was the duty of the magistrate to inquire into the personal circumstances of the appellant, to see if any other mitigating factors existed, in accordance with the Ghana Sentencing Guidelines. See also ASAAH alias Asi v THE REPUBLIC, referred to supra. That is not borne out by the record. It appears the magistrate relied solely on the information provided by the prosecution in passing sentence.
In the peculiar circumstances of this case, if the magistrate had made inquiries from the Appellant, subject to verification by the prosecution, and had taken into account the fact that the Appellant is a family man, and the sole bread winner, perhaps, those considerations, coupled with the restitution which had already taken place, he would have been guided in passing sentence.
Although the Magistrate did not exercise his discretion capriciously, there are many mitigating factors, as indicated above, which he failed to consider in passing sentence.
For these reasons, I will, therefore, allow the appeal against the sentence and I hereby set aside the 270 days sentence.
The appellant has already served about seven weeks of the prison term and it seems to me that he must have learnt his lesson by now. That period must have been long enough to punish him, and short enough to reform him! In place thereof, I sentence the appellant to a fine of GH¢ 100 penalty units or in default two months imprisonment with hard labour.