Adjei v The Republic (SYN/HC/F15/025/2025) [2025] GHAHC 170 (15 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 15TH DAY OF JULY 2025 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURTJUDGE SUITNO. SYN/HC/F15/025/2025 ADJEIRICHARD V THEREPUBLIC CRIMINAL APPEAL-JUDGMENT ConvictAppellant present Glenna –Lois Boakye–Yiadomfor theConvictAppellant present Rose Mmabila Anafo (Assistant State Attorney) being led by Derrick Asante Obeng (StateAttorney)for theRepublic 1 BACKGROUNDTOAPPEAL This is an appeal lodged by the Accused Convict Appellant hereinafter called the Appellant on 26th May, 2025 against his conviction and sentence by the Circuit Court Berekum presided over by His Honour A. Y. Asibey on Wednesday the 31st day of March 2014. The sole ground of appeal is that; the sentence is harsh and excessive in the circumstance. The relief is for a reduction of the sentence. From the record of appeal, the Appellant was charged with three counts namely; Count (1) – Unlawful Entry,Count (2) – Causing unlawful damage and Count (3) stealing contrary to sections 152, 172 and 124 (1)respectivelyofthe CriminalOffencesAct, 1960(Act 29). THEFACTS The facts are that the Complainant, a driver and the accused person unemployed both live at Senase. The Complainant returned home from Sunyani on 17th March 2014 and found that the door lock to his bedroom and the ceiling of his room were damaged, his strong decoder valued at Ghs 220.00 and cash of Ghs 350.00 were stolen. Awitness in the case informed the Complainant that the accused person was seen jumping from the ceiling of his room. The Complainant reported the matter to the police, the accused person was arrested and he admitted to committing the offence in his investigation cautioned statement and he led the police to retrieve the decoder butsaid he had spentthe money. 2 CONVICTION ANDSENTENCE On 31st March, 2014 the Appellant pleaded guilty simpliciter to all the three charges levelled against him. The trial Judge convicted himas follows; 1. Count (1) – Unlawful Entry contrary to section 152 of the Criminal Offences Act, 1960(Act 29)–five(5) yearsimprisonment inhard labour 2. Count (2) – Causing unlawful damage contrary to section 172 of the Criminal OffencesAct, 1960(Act 29)–five(5) yearsimprisonment inhardlabour 3. Count (3) – Stealing contrary to section 124 of the Criminal Offences Act, 1960 (Act 29)–Fifteen(15)yearsimprisonment in hardlabour The trialJudge statedas follows; The accused is given a harsh sentence because he was convicted months ago in a similar offence. The decoder retrievedfromthe accused be given backto the owner,Alhassan Mohammed. The Republic is not opposed to the appeal. Therefore, this appeal is being heard based onthe writtenaddressofonly CounselfortheAppellant. 3 WRITTENADDRESS OF COUNSELFOR THE APPELLANT In her written address filed on behalf of theAppellant on 5th June, 2025, Counsel for the Appellant made reference to the charges against the Appellant, the facts, conviction of the Appellant and several authorities to support her arguments. According to Counsel the cumulative sentence of twenty five (25) years handed down to the Appellant by the trial Circuit Court Judge is harsh and excessive considering the circumstances of the offences. According to Counsel, the record shows that the offences the Appellant committed were not premeditated but were on the spur of the moment. Counsel argued that the trial Judge made reference to previous conviction of the Appellant which was not borne out of the record because prosecution did not mention any previous conviction of theAppellant and theAppellant did not admit toany previous conviction. The said non - existent previous conviction on record informed the harsh sentence the trialJudge imposed ontheAppellant. Counsel argued that apart from the mystery surrounding the trial Judge’s consideration of a previous conviction of the Appellant to a similar offence which was not borne out of the record, the trial Judge failed to consider the following mitigating factors in sentencing the Appellant; that the offences committed by the Appellant were not pre meditated but on the spur of the moment; that the Appellant was twenty (20) years old when he committed the offences and for that matter he was young; that the Appellant pleaded guilty simpliciter to all the charges without wasting the Court’s time and its 4 limited resources; that the decoder that was stolen by the Appellant was retrieved and restored to the Complainant and that the Appellant showed remorse by pleading for leniency as follows “I pray to the Court to have mercy on me. I will not commit that offence again”. However, the trial Judge did not take the above mitigating factors into consideration and handed down a harsh sentence to the Appellant. Counsel submitted that if the aim of the sentence imposed on the Appellant was to reform him, the Appellant having already served over eleven (11) years out of a sentence of twenty five (25) years should be enough deterrence to him. Counsel therefore prayed the Court for a reduction of the sentence since the Appellant had already served over eleven (11) yearsout ofthesentence. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW Section 30 sub section (a) (i), (ii) and (iii) of the Courts Act 1993 (Act 459) as Amended statesthat; Section 30—Ordersavailable to Superior Courtsoverappeals. “Subjecttothe provisions of this Sub-Part, an appellate courtmay inacriminal case— (a) on an appeal from a conviction or acquittal— (i) reverse the finding and sentence and acquit and discharge or convict the accused as the case may be or order himto be retried byacourtof competentjurisdiction, or commithim for trial; or 5 (ii) alter the finding, maintaining the sentence or with or without altering the finding, reduce or increase the sentence; or (iii) with or without such reduction or increase and with or without altering the finding alter the nature of the sentence; …” In the case of Nkrumah v. Ataa [1972] 2 Ghana Law Report, page 13 holding (4), the Courtheld that; “(4) Whenever an appeal is said to be "by way of re-hearing" it means no more than that the appellate court is in the same position as if the rehearing were the original hearing, and the appellate court may receive evidence in addition to that before the court below and may review the whole case and not merely the points as to which the appeal is brought, but evidence that was not given before the court below is not generally received. The appellate court may also consider what facts have occurredsince the trial, and what relevantchange has been made in the law. But in the exercise of its power to consider changes in the law since the trial, the court will apply legislation, since enacted, which is sufficiently retrospective and extends to pending proceedings or gives new remedies. It cannot, however, determine the substantive rights of the parties by applyingsubsequentlegislation which is notretrospective.” The Court has apprised itself with the charges levelled against the Appellant, the facts, conviction and the sentence imposed on the Appellant by the trial Circuit Judge. The 6 Court has also taken conspicuous notice of the trial Judge’s comment that; “The accused is given such harsh sentence because he was convicted months ago in a similar offence” which is not borne out of the record. The Court has considered the written address of Counsel for the Appellant and taken notice of her submission in favour of reduction of the sentence relying heavily on mitigating factors which would have inured to the benefit of theAppellant if the trial Judge had considered them before sentencing theAppellant. The record shows;  That the Appellant was young at twenty (20) years when he committed the offence. He might have therefore been influenced by his youthful exuberance to climb intothe Complainant’s ceiling toenter theComplainant’s roomto steal.  The offences werenot premeditated.  He readily pleaded guilty simpliciter to all the three charges without wasting the Court’stime and resources. He must thereforebe givencredit for that.  The stolenitem, adecoder wasretrieved and restored to itsowner except that the Appellant admitted that he spent the cash sum of Three Hundred and Fifty Ghana Cedis (Ghs 350.00)and so it wasnot retrieved. 7  The Appellant is a first offender since there was no evidence on record of him having been convicted and sentenced to same or similar offences although the trial Judge stated on record that the Appellant was given a harsh sentence because he was convicted months ago in a similar offence. The said previous conviction was not mentioned by prosecution neither did theAppellant admit to any previous conviction. Therefore, it cannot be used against theAppellant.  TheAppellantshowed remorse and pleaded forleniency The only aggravated factor perceived by the Court is that the Appellant entered the Complainant’s room through the ceiling.Apart from that, all the above listed factors are mitigating factorswhich inure tothe benefit oftheAppellant. TheCriminal and Other Offences (Procedure) Act, 1960(Act30) section300statesthat; 300.Previousconvictions “(1) Where a person, having been convicted of a criminal offence, is again convicted of a criminal offence that person is liable to increased punishment provided in the Table annexed to this section and the notes to it or to a period of detention in this Act called “preventive custody” underPart Thirteen”. 8 Criminal Procedure and Practice in Ghana pages306to 307by the renowned jurist and SupremeCourtJudge, Justice Dennis Dominic Adjeistatesasfollows; “In pre –sentencing hearing, the evidence taken by the court to inform itself about the proper sentence to impose does not involve the taking of evidence. The accused normally puts in words of mitigation or the prosecution in some cases may put in words of aggravation such as the accused has a previous conviction, the accused has previously committed a similar or same offence to warrant a sentence under section 300 of Act 30. A prosecutor who informs the court that the convict is “known” shall provide evidence required by section 117 of Act 30 by producing either an extract certified, and personally signed by the Registrar of the court which convicted the accused or a certificate signed by an officer in charge of the prison where the accused served the sentence or part thereof or the production of warrant of commitment under whichthe punishmentwas suffered inaddition to evidence as to the identity of the convict… The court in imposing the appropriate sentence may take into consideration mitigating and aggravating factors. The aggravating factors include the seriousness of the offence of which the accused has been convicted; how the citizenry frown upon that particular offence; the premeditation with which the accused committed the offence; the prevalence of the offence in the country and the need to use punishment to deter and also prevent persons of like mind from committing the offence; the sudden increase in incidence of that crime and the need to curb or prevent its occurrence; and whether the accused has a previous conviction which may confer 9 jurisdiction on the Court to impose increase sentence. The mitigating factors include the accused being a first offender; the guilty plea taken by the accused; the extreme youth of the person; the remorse shown by the person; the fact that the offence is not a serious one; the extreme age of the offender...” Pursuant to his conviction and sentence on 31st March 2014 the Appellant has served a prison term of eleven (11) years and he is now thirty one (31) years old, mature, and has learnt a great lesson from serving eleven (11) years in prison. The Court takes notice that the three offences committed by the Appellant are all second degree felonies. However, the trial Judge had a discretion to sentence the Appellant from one day to twenty five (25) years after considering the aggravating and mitigating factors. In the particular circumstances of the present case, the only aggravated factor in the Court’s view is that the Appellant climbed to the ceiling of the Complainant. Apart from that theotherfactorsaremitigating factorswhich the Courthas listed supra. It is useful to note that upon serving eleven (11) years imprisonment out of the twenty five (25) years imprisonment, the Appellant has now grown from a young offender of twenty (20) years into a fully – fledged adult of thirty one (31) years who is no longer likely to be influenced by youthful exuberance but by common sense and level headedness. The Court is therefore of the view that the Appellant being a first offender must be given a second chance to reform and to make himself useful to society. The 10 Court is also convinced that having spent eleven years in prison if the Appellant goes back to his community, his peers and younger persons will observe his life and would be deterred from committing any offence in the community. The Court is further convinced that the eleven (11) year sentence served by the Appellant would be more than adequate to pacify society and the Complainant for his damaged door lock, ceiling and his Three Hundred and Fifty Ghana Cedis (Ghs 350.00) cash and the incidence would also help the Complainant to beef up security in his house. The Appellant may not even dare to repeat any such offences because now that he is known, he is deemed to know or he ought to know that the consequences of committing any further offence would be dire because section 300ofAct 30wouldbe applied tohim withfull force. Having established that the trial Judge’s reliance on previous conviction of the Appellant which although not supported by the record but largely influenced the sentence imposed on the Appellant, the Court finds as a matter of fact that the cumulative sentence of twenty five (25) years imprisonment imposed on the Appellant is harsh and excessive as prayed by the Appellant and his Counsel. The Court therefore finds it prudent and legally justifiable to reduce the sentence. Having taken into consideration that since he was sentenced on 31st March, 2014 to date the Appellant had served eleven (11) years of his sentence and being informed by section 30 of Act 459 as Amended cited supra, the Court would accordingly substitute a sentence of twelve months (12) months imprisonment on counts (1) and (2) which are Unlawful Entry and 11 Causing Unlawful Damage contrary to sections 152 and 172 of the Criminal Offences Act, 1960 (Act 29) respectively and a sentence of eleven (11) years imprisonment on count (3), stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) in place of five (5) years imprisonment each on counts (1) and (2) and fifteen (15) years imprisonment on count (3). Consequently, the Appellant is to serve a maximum sentence ofeleven(11)yearsforthe threecharges. The sentences torunconcurrently. Inthelight ofthe foregoing, the appealsucceeds in itsentirety. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 15TH JULY2025 12