Serwaa v The Republic (BON/SYN/HC/F15/016/2025) [2025] GHAHC 175 (22 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 22ND DAY OF JULY 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUITNO. BON/SYN/HC/F15/016/2025 ELLENSERWAA V THEREPUBLIC CRIMINAL APPEAL-SENTENCING BACKGROUNDTOTHEAPPEAL This appeal is against the judgment of His Lordship Charles KwasiAcheampong sitting as Additional Circuit Court Judge at Goaso in the Ahafo Region dated 30th December 2024. The appeal is not against the conviction but the sentence of the trial Court for the offence of Causing Harm contrary to Section 69 of the Criminal Offences Act, 1960 (Act 29). The sole ground of appeal is that the sentence is harsh and excessive having regards to the circumstances of the case. The relief being sought is for a reduction ofthe sentence. In sentencing theAppellant, the trial Judge stated at page 9 of thejudgment and also onthe last twopagesoftherecord ofproceedings asfollows; 1 Counsel’s erudite submissions has raised a number of mitigating factors which certainly inures to the benefit of the accused person. These include the fact that he (sic) is a first time offender, a mother of two young children and a professional teacher. The Court is not oblivious of the effecta custodial sentence would have on the life of the accused person as well as her immediate family. Nevertheless, this Court cannot gloss over the fact that the victim has been scarred for life and no amount of money or apology would indemnify her. One can just imagine the pain this young nineyear old girl feltas accused person committed the offence. Therefore, having taking (sic) into consideration all the mitigation (sic) factors and balancing same with the need to ensure that a message is sent to like – minded persons, while reforming accused person, this Court hereby deems it just to sentence accused person to serve a term of four (4) years imprisonment in hard labour. Complainant may sue accused for adequate compensation for injuries sustained by the victim. ADDRESS BY COUNSEL FORTHECONVICT / APPELLANT In her address in favour of the appeal, Counsel mentioned factors to be considered in sentencing with reference to the case of Kwashie v. The Republic [1971] Ghana Law Report; the intrinsic seriousness of the offence, the degree of revulsion felt by law abiding citizens of the society for a particular crime, the premeditation with which the criminal plan was executed, the prevalence of the crime within the particular locality 2 the offence took place or in the country generally, the sudden increase in the incidence of the particular crime and the mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. Counsel argued that the above factors need not all be present in every case and that they are to be considered on a case by case basis depending on the circumstances of each case. Concerning mitigating factors, Counsel noted that although the trial Court tooknotice ofmitigating factors, theywerenot exhaustive. He noted that theAppellant is young, 32 yearsold and she is a first offender. Therefore, she needs to be given opportunity to reform and play her role in society as a useful citizen. She should not be mixed up with habitual offenders which may hinder her ability to reform. She has learnt a bitter lesson as intimated by her Counsel. According to Counsel the Appellant apologized to the victim and her family as part of a healing process and restoration of relationships which also demonstrates remorse by the Appellant. The Appellant and her husband also visited the victim while she was in hospital on times without number. They bore the medical bills of the victim and after the appeal was filed they gave Twenty Thousand Ghana Cedis (Ghs 20,000.00) to the victim through the Republic as a form of compensation to the victim although the Appellant was unemployed. All these Counsel argues, should go into mitigation. The Appellant being a co – bread winner, her continued incarceration will create greater hardshipfor herdependents. 3 Another argument of Counsel is that the Appellant, apart from the unborn baby in her womb, she has two children who are three (3) and five (5) years old and therefore ordering her to servethe full four year termwill be unbearable for the children. Counsel cited the case ofAsaah@Asiv.The Republic [1978] Ghana LawReport (GLR)1,where a District Magistrate imposed a sentence of six months imprisonment with hard labour without an option of a fine on a mother of six children, two of whom were minors. On appeal her sentence was substituted with a fine. The Court considered the fact that the Appellant is amother ofsix children with twoofthem being minorswho are dependent on her. Counsel further argued about the effect that a long prison sentence would have on the career of the Appellant as a Mathematics teacher which may lead to her losing her job. For the above reasons Counsel prayed the Court to exercise its discretion by letting theAppellant goand sinno more. ADDRESS BY COUNSEL FORTHEREPUBLIC/ RESPONDENT Afterreferring to applicable authorities, Counsel notedthat sentencing is a matterofthe Court’s discretion and usually an appellate Court must not interfere in the sentence of the trial Court unless the sentence is manifestly excessive having regard to the circumstances of the case. Counsel made reference to the factors to be considered in sentencing with reference to the case of Frimpong @ Iboman v. The Republic [2012] 1 4 Supreme Court of Ghana Law Report (SCGLR) 297 which mentioned the same principles as stated in the case ofKwashie v.The Republic cited supra except to add that a period spent in lawful custody in respect of that offence before the completion of trial per article 14 (6) of the 1992 Constitution must be taken into consideration in sentencing. Counsel also noted that other factors to be considered are mitigating factors such as extreme youth, goodcharacter,remorse, reparation and aggravating circumstances such as violence or the manner in which the crime was committed, in sentencing the convict. The above factors could be applied jointly or severally according to Counsel in determining the appropriate sentence toimpose. Counsel noted that the trial Judge considered mitigating factors such as the Appellant being a first time offender, a professional teacher, the fact that she has young children and he balanced it with the need to send a message to like – minded people. He then imposed a sentence of four years imprisonment which was within the punishment prescribed by law, section 296 (2) of Act 30. Per this section the trial Judge has a discretion to impose a sentence of one day to ten (10) years imprisonment for the offence under which the Appellant was convicted being causing harm under section 69 ofthe Criminal OffencesAct, 1960(Act 29). Itis Counsel’s contention thatthe sentence is neither harsh nor excessive because the trial Judge exercised his discretion judiciously. Counsel prayed the Court to consider the Appellant’s efforts to make amends by compensating the victim with Forty Thousand Ghana Cedis (Ghs 40,000.00) to give 5 the Appellant an option of a fine for her to reintegrate herself into society since she is also pregnant. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW FACTS The facts are that Stephanie Nketiah, a nine (9) year old girl and a class three pupil is the victim. The Accused person, Ellen Serwaa is thirty two (32) years old and a teacher inthe same school the victim attends. The victim is afoster child of the Accused and her husband, and the victim and the Accused live in the same house. The husband of the Accused worksin Berekum and he visits the family at Goaso monthly. One day in April 2022 the victim took the Accused’s Ghs 2.00 to buy snacks at school and the Accused got to know about it. At home, the Accused questioned the victim who admitted taking the money. The Accused got angry and whipped the victim mercilessly. Being dissatisfied, the Accused heated hot water the next day and forcibly dipped the hands of the victim into the hot water for long before releasing the victim. Blisters developed on the victims hands the next day. The Accused kept the victim indoors for three weeks without taking her to the hospital. The condition of the victim worsened. An anonymous person informed the victim’s mother and the victim’s parents lodged a complaint with the police and the Accused was arrested. The victim was referred from 6 Goaso Government Hospital to Komfo Anokye Teaching Hospital. She underwent series ofsurgeries and she spent six (6) months in hospital before she was discharged. A medical report duly endorsed from the Komfo Anokye Teaching Hospital states that; “A conspicuous scar and flexion contracture of the left hand with inability to fully use left hand and also a conspicuous scar on the dorsum of the right hand and two donor site scars on both thighs.” The accused person admitted the offence during investigations and she was charged withtheoffence ofcausing harm. Section 69ofthe Criminal Offences Act, 1960(Act 29)statesthat; 69.Causingharm Aperson whointentionallyand unlawfully causes harm toany other person commitsa second degreefelony. Section 296 (2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) statesthat; (2) 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 offenceis liable toa term of imprisonmentnotexceeding ten years. 7 297.Rules relating to fines (1) Where a person is convicted of a felony or a misdemeanour or of an offence punishable by imprisonment other than an offence for which the sentence is fixed by law, the Court may sentence that person to a fine in addition to or in lieu of any other punishment to which that person isliable. (2) Where the amount of the fine which a person may be sentenced to pay on conviction is not expressly limited, the amount of fine shall, subject to the limitations on the powers of the Court, be inthe discretion of the Court, butshall notbe excessive. (3) Where a person convicted of an offence is sentenced to pay a fine the Court may direct that if that person fails to pay the fine within the time appointed for payment that person shall suffer imprisonmentuntil itis paid. It is trite law that appeal is by way of rehearing and when the appellate Court is considering an appeal it is in the same position as the trial Court as if the rehearing was the original hearing. The Court has painstakingly read the written addresses of both Counsel for theAppellant and Counsel for the Respondent. It is clear from the notice of appeal that the appeal is not against the conviction but the sentence. The sentence being appealed against is four years imprisonment in hard labour cited supra. The Court takesnotice that the trial Judge considered mitigating factorswhich inures tothe benefit 8 of the Appellant including the fact that she is a first offender, a teacher by profession and a mother of two young children. The trial Judge balanced the mitigating factors against sentence that would deter like - minded people from committing such an offence as well as the injury sustained by the victim. It is useful to add that the trial Judge failed to consider a mandatory requirement of the law for pregnancy test to be conducted on women who appear to be of child bearing age before giving them custodial sentence. It is useful to note that this test takes a few minutes to do and it is unfortunatethat it escaped the trialJudge. Section 313A (1), (2) and (3) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30)statesasfollows; 313A. Pregnant womanconvicted ofa non-capitaloffence (1) Where a woman is convicted of a non-capital, offence, the Court shall order that the woman be tested for pregnancy unless the Court has reasonable grounds to believe that the woman is post-menopausal. (2) Where the woman tests positive for pregnancy, the Court shall pass on her a non-custodial sentence or may suspend the sentence for aperiod that itmay determine. 9 (3) Where the sentence is suspended, the Court shall explain to the offender in ordinary language that if another offence is committed during the period of the suspension she will be liable to serve the sentence for the original offenceinaddition tothe sentence for the newoffence. On 10th April 2025, Counsel for the Appellant filed an application for bail pending appeal which was not opposed by the Respondent. Upon being satisfied by pregnancy reports on the Appellant produced by Counsel for the Appellant and the Respondent dated 9th April 2025 which showed that the Appellant was as at 9th April 2025, eighteen (18) weeks and two days pregnant which also showed that at the time she was convicted and sentenced on 30th December 2024 theAppellant was five weeks pregnant, and upon noticing that the Appellant was palpably pregnant, the Court admitted the Appellant tobailpending appeal. Counsel for the Appellant argued that although the trial Judge considered mitigating factors, theywere notexhaustive. Counselprayedthe Courtby virtue ofthe Appellant’s two young children, her pregnancy among others to set her free. Counsel for the Respondent was of the view that the trial Judge considered mitigating factors, however the Court should take notice of reparation the Appellant made by paying Forty Thousand Ghana Cedis Ghs 40,000.00 to the victim and to hand her a fine. The Court has taken notice of the mitigating factors that inure to the benefit of the Appellant namely; 10 1. Sheis afirst offenderand thereforeshe should not be treatedas ahardened criminal. She should be givenasecond chance. 2. She is a mother of two young children aged five (5) and three (3) years old according to the record ofproceedings, and with a budding foetus growing up in her. 3. She is a professional teacher and a Mathematics teacher as such, a Junior High School (JHS) teacher. For that matter a useful citizen to the Republic of Ghana and thereforeif she is incarceratedfor longthe Republic would lose alot. 4. She has exhibited great remorse by her show of support for the victim together with her husband in the victim’s recovery process by visiting the victim in hospital among others which was admitted by the victim’s parents in Court at thelast sitting. 5. She and her husband have contributed a total of Forty Thousand Ghana Cedis (Ghs 40,000.00) by way of compensation to the victim through her parents who admittedsame inCourtat thelast sitting. 11 6. She is a co-bread winner of her family and her absence in the family for a long time would create hardship for the family especially the two minor children who atthis stageoftheir life need motherlycareand protection. 7. She has served over three months of her sentence in prison with her pregnancy since 30th December 2024 that she was sentenced by the trial Court until 10thApril 2025thatshe wasadmitted tobail The aggravating factors are that the offence she committed is a second degree felony which attracts between one day imprisonment to ten years imprisonment. The injury caused to the victim has marred her for life and that no amount of compensation would be sufficient although the Court had not seen the victim, the trial Judge saw the victim and that informed his sentence. The victim was in Court at the last sitting but the Court declined to see her as it was the Court’s view that it would be prejudiced by doing so. The Court takes into consideration that although the victim is a minor and the trial Judge properly exercised his discretion within the confines of the law regarding the sentence imposed on the Appellant, the trial Court, apart from failing to order for a pregnancy test to be conducted on the Appellant also failed to consider the best interest ofthe two youngchildren oftheAppellant which should override every consideration. 12 Section 2(1)and (2) ofthe Children’sAct, 1998(Act560) statesas follows; Welfare principle (1)The best interestof the child shall be paramount inamatter concerningachild. (2) The best interest of the child shall be the primary consideration by a Court, person, an institutionor any other body in amatter concerned with achild. The proceedings show that theAppellant has two young children who are 5 and 3 years old. The facts further show that the Appellant’s husband works in Berekum and he visits the family at the end of the month. This means that the children are virtually in the custody of the Appellant. Considering the ages of the children and the fact that the Appellant had tobe awayfromthemin prison foroverthree monthsis notprudent. The principles governing the best interest of children in the Children’s Act are that it is desirable for young children to be in the custody of their mother to enjoy the natural and emotional care associated with motherhood.Another principle of the children’sAct is that it is desirable for siblings to growtogether and bond together.The best interest of the child in the womb and the children who have already been born would not be achieved if the two children live in the house without their mother while the unborn child lavishes with his or her mother in prison. The prudent thing to do in the circumstance is to ensure that all the minor children live together with their mother, 13 bond with her and grow together. This is the best interest of the children which should override any other consideration that has been enumerated above because the innocent children should not suffer for the offence committed by their mother. The Court therefore holds a fervent view that the appeal should succeed even on the best interest principle ofthe childrenalone. The trial Judge’s intention was to balance the mitigating factors with the need to ensure that a message is sent to like - minded persons while reforming the Appellant. It is the Court’s view that the Appellant having served over three months of her sentence in prison with her pregnancy, a message has already been sent out to her peers and like – minded persons to deter them from committing such offences. The negative effects of the imprisonment on the unborn child and nutrition of that child is enough trauma for the Appellant to reform her. The money the Appellant and her husband have spent as teachers, over Forty Thousand Ghana Cedis (Ghs 40,000.00) as reparation to the victim is enough lesson to her and her peers. She has missed school for a while which puts her profession at stake and her peers are well informed about her predicament. The stress she had to go through seeing a herbalist and going to and from hospital to see to it that the victim recovers is enough to reform and to deter her and her peers. If the above experiences donot reformtheAppellant, thenthe Court doesnot knowwhat would. The Court is convinced that in the light of the circumstances of the Appellant, a pregnant woman, society is appeased with the punishment she has served so far, that is 14 over three months imprisonment. The law has also been complied with. Regarding compensation to the victim, notwithstanding the Forty Thousand Ghana Cedis (Ghs 40,000.00) they have received from the Appellant, they are not precluded from mounting a civil action against the Appellant for further claims in the light of the medical reportwhich statesthat; “A conspicuous scar and flexion contracture of the left hand with inability to fully use left hand and also a conspicuous scar on the dorsum of the right hand and two donor site scarson both thighs.” The effect of the medical report as found from Mayoclinic.org is that the victim has; A bent finger at the middle jointof the fingerwhich she cannot straighten by using her own muscle power or with the help of the opposite hand. The finger has become bent or stuck in that position. Shecan make a fistbut is notable to straighten the finger. In the light of the foregoing, the Court is of a maximum conviction that the sentence of four (4) year imprisonment in hard labour imposed on the Appellant who was later found to be pregnant at the time she was sentenced is not only contrary to law but is also harsh and excessive having regard to the circumstances of the case. Consequently, the Court hereby sets aside the sentence oftheAppellant to four (4) years imprisonment in hard labour imposed on the Appellant by His Lordship Charles Kwasi Acheampong sitting as Additional Circuit Court Judge at Goaso in the Ahafo Region dated 30th 15 December, 2024. Accordingly, the said sentence is substituted with a fine of Two Thousand Penalty Units which is equivalent to Twenty Four Thousand Ghana Cedis (Ghs 24,000.00). The Appellant is hereby ordered to pay the said fine within one week from today, 29th July 2025. The Appellant should remain on the bail granted to her previously by the Court on 10thApril, 2025. Notwithstanding the fact that theAppellant had paid Forty Thousand Ghana Cedis (Ghs 40,000.00) as mitigation / compensation to the victim, the Court in addition orders the Appellant to pay compensation of Five Hundred (500) Penalty Units that is Six Thousand Ghana Cedis (Ghs 6,000.00) to the victim in accordance with section 148 of the Criminal and Other Offences (Procedure) Act1960,(Act 30)whichprovides that; 148.Offender to make compensation (1)A personwho is convicted offelony ormisdemeanour maybe orderedby the Court tomake compensationtoany otherpersoninjuredby that offence. (2)A personwho is convicted ofan offence onsummary conviction may be ordered by theCourtto makecompensation, notexceeding anamount ofmoney equivalent to five hundred penalty units, to anyotherpersoninjuredby thatoffence. Inthecircumstance, theappeal herebysucceeds initsentirety. 16 (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 22NDJULY2025 17