Tweneboah and Another v S (CR/0279/2024) [2025] GHAHC 141 (11 June 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 11TH DAY OF JUNE 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0279/2024 AARON NANA TWENEBOAH APPELLANT VRS REPUBLIC RESPONDENT JUDGMENT The Appellant herein filed a petition of appeal on the 25th of April 2024 against the sentence imposed on him by the Adentan Circuit Court. The appellant and one another James Akwasi Laar were arraigned before the court and charged with the offence of conspiracy to commit the offence of stealing contrary to sections 23(1) and 124(1) of the Criminal Offences Act 1960 (Act 29), the offence of unlawful entry contrary to Section 152 of Act 1 29/60, two counts of stealing contrary to Section 124 of Act 29/60 and causing unlawful damage contrary to Section 172(1) of Act 29/60. The appellant and the co accused pleaded not guilty to the offences charged and after a full trial, they were sentenced as follows: Five years IHL for the offence of conspiracy to steal Five years IHL for the offence of unlawful entry Seven years IHL for the offence of stealing Five years IHL for the offence of causing unlawful damage and also to pay a fine of 250 penalty units in default two years IHL. The A2 was also to pay compensation of 5,000 penalty units to the HVGC which may be recovered through civil proceedings for the damage to the safe. The sentences were to run concurrently. It is against this sentence that the appellant filed the instant appeal. GROUNDS OF APPEAL The sole ground of appeal filed is that i. The sentence is too harsh and thus pray for a drastic reduction. 2 FACTS OF THE CASE According to the prosecution, the complainant is the Manageress of Hill view guest house located at Teiman. First accused James Akwasi Laar is a worker at the facility and Aaron Nana Tweneboah was a former worker of the facility. On 17/05/2021 at about 9:00am the complainant came to work and detected that uninstalled safe containing 2240 US dollars, 9176 euros, GH¢310,000.00, two cheque booklets and personal documents in the office of the executive director was stolen and subsequently, a report was made to Kuottam police. Upon watching the footage of the closed-circuit television (CCTV) installed at the scene, the first and second accused persons were captured in the act of conspiring and stealing of the safe, which they finally hid in the car boot of the second accused and they drove off. On the strength of the footage, both accused persons were arrested and detained. During a search on them, an amount of two hundred and five thousand nine hundred and ten (205,910.00) was found in the room of the second accused concealed in a black bag. However, the second accused confessed that, after breaking the safe, he found the aforementioned amount of money, two cheque booklets and wallet. On 18/05/2021, both accused persons led police to the scene and demonstrated how they got access to 3 the office before stealing the safe. After investigations, they were charged with the respective offences. RESOLUTION OF THE GROUND OF APPEAL The relevant statutory laws on the offences preferred against the appellant herein are as follows: With regards to the offence of conspiracy, Section 23 of the Criminal Offences Act 1960 (Act 29) provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” For the offence of stealing, Section 124(1) of Act 29/60 provides that “A person who steals commits a second degree felony.” Section 152 of the Criminal Offences Act 1960 Act 29 provides that the law on unlawful entry and it provides that: “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony.” Section 172 (b) of Act 29/60 provides for the law on causing unlawful damage. It provides that: 4 “(1) A person who intentionally and unlawfully causes damage to property (a) to a value exceeding one million cedis commits a second degree felony.” Section 24(1) of Act 29/60 provides that: “(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence.” Section 296(5) of the Criminal and other offences Procedure Act 1960 Act 30, “ A person convicted of a criminal offence under any of the following sections of the Criminal Offences Act, 1960 (Act 29), that is to say, sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252, 253, and 260 is liable to a term of imprisonment not exceeding twenty-five” The punishment for stealing and unlawful entry as per Sections 124(1) and 152 of Act 29/60 and Section 296(5) of Act 30/60 is a term of imprisonment not exceeding twenty-five years. With regards to the offence of conspiracy to steal, the law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that criminal offence. 5 With regards to the offence of unlawful damage, the trial judge per Sections 172 of Act 29/60 and 296(2) of Act 30 had the discretion to impose a sentence not exceeding 10 years imprisonment and with the other other counts a sentence not exceeding twenty five years imprisonment. The sentence of 5 years and 7 years imprisonment imposed by the trial judge in this instance to run concurrently was therefore within the confines of the law. That being the case, then for this appellate court to temper with the sentence as prayed for by the appellant, there must be evidence that the trial court did not exercise its discretion properly in the length of sentence imposed. The question of sentence is a matter of discretion with all courts. Thus the decision of the court as to the length of sentence to impose from within the statutory limits is an exercise of the court’s discretion. Andoh J in Komegbe and Others v The Republic (1975) 2 GLR 170 referring to the statement of Lord Halsbury L.C. in Sharp v Wakefield (1891) A.C. 173 at 179 defined judicial discretion as: " ... Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ... according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And 6 it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself" Thus where a court has to exercise its discretion, same must not be arbitrary but fair. The constitution has provided a guide as to the exercise of that discretion. Article 296 of the 1992 Constitution enjoins that the discretionary power shall be deemed to imply a duty to be fair and candid and shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law. In complying with due process of the law, our courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. The appropriate sentence to be imposed should depend on the nature of the offence, the offender that is the convict and the entire circumstances of the case. The court therefore is to consider both mitigating and aggravating factors. In the instant case, the trial judge in exercising her discretion considered both mitigating and aggravating factors. The trial judge considered the fact that the offence was premeditated, the accused persons especially the A1 was in a position of trust with the hotel, the value of the items and that majority of the cash stolen was not recovered. The trial judge added that mitigating factors are the fact that the accused persons are not known and the fact that some of the cash stolen was retrieved. 7 The trial judge however stated that the appellant herein was the instigator of the offence because he had the stolen items within his possession. It seems to me that the trial judge with that view in mind and also the fact that the A2 was charged with four counts proceeded to impose a sentence of seven years imprisonment on the A2/appellant herein even though the evidence on record shows the A1 and A2 together in the commission of the offence. The fact that the A2 was found in possession of the money does not in anyway show that he is the instigator of the offence and that the A1 aided him to commit the offence. A co accused can be found in possession of the stolen items due to a number of reasons and not because he is the instigator of the offence. In sentencing an accused person who has been convicted with others, the role played by each convict is to be taken into account. In the case of Dabla vrs The Republic [1980] GLR 501 the court held that in imposing sentences on persons jointly convicted, the sentences should reflect the role each party played; if one person’s role is minor and the other is say the architect, then the sentences should reflect these roles, the architect as a general rule receiving more than the one who played a minor role. From the record and as stated supra, there is compelling evidence that the A1 and the A2 appellant herein were seen both carrying the security safe away. There is 8 no evidence on record that any of them had limited involvement in the modus operandi of the crime or that any of them was passive in the commission of the crime. As such the sentences meted out to them should have been even and not one receiving more punishment than the other. The reason given by the trial judge that the A2 was the instigator is not born out by the record. Flowing from the above, I set aside the sentence of seven years imprisonment on count 3 that is the offence of stealing and substitute same with a sentence of five (5) years IHL. The sentence of five years on count three the offence of stealing is to take effect from the 3rd day of February 2023 when the appellant was sentenced. The sentence of five years IHL on count one the offence of conspiracy to steal, count two the offence of unlawful entry and causing unlawful damage is hereby affirmed. The sentences will run concurrently. The appeal succeeds in part. PARTIES: APPELLANT PRESENT COUNSEL: AMEYAW NYAMEKYE ESQ FOR THE A2/APPELLANT PRESENT 9 MARIAN BOAKYE YIADOM FOR THE REPUBLIC/RESPONDENT ABSENT MARY M.E YANZUH J. HIGH COURT JUDGE 10