Lartey v S (CR/0158/2025) [2025] GHAHC 150 (9 May 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 9TH DAY OF MAY 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/0158/2025 PAUL LARTEY APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein filed a petition of appeal on the 19th of December 2024 against the sentence by the Koforidua Circuit Court. The appellant was charged with the offence of unlawful entry and stealing contrary to Sections 152 and 124(1) of the Criminal Offences Act 1960 Act 29. He was arraigned before the trial court on the 9th of January 2018 wherein he pleaded not guilty to the counts after same were read and explained to him in the English Language. 1 After a full trial, the accused was on the 12th of June 2018 found guilty, convicted and sentenced to two years IHL for the offence of unlawful entry and eight (8) years IHL for the offence of stealing. It is against this sentence that the appellant filed the instant appeal. GROUNDS OF APPEAL The grounds of appeal filed are that: 1. That the Honourable Court should temper justice with mercy and commute the sentence to the barest minimum considering the facts of the case. 2. That the Appellant has deeply regretted his actions, and it is out of profound remorse that he is praying for mitigation of his sentence. 3. That the Appellant who is a first-time offender has really learnt his lessons over the period of time served in incarceration under the harsh and severe conditions in detention and has vowed never to engage in any criminal activity again when given the opportunity. 4. That the Appellant prays the Honourable count to kindly consider the psychological and negative consequences of long incarceration and commute the sentence do the barest minimum. 2 5. That the Appellant prays the honourable court to have her natural empathy on the humble repentant Appellant and reduce the sentence to the barest minimum. FACTS OF THE CASE The facts of the case is that the complainant Favour Tsormana is a 47-year old trader und resident at Bornya, Koforidua while the accused person Paul Lartey is a 28-your old tailor and a resident of Suhum. The prosecution stated that on the 17th of December 2017 between the hours of 0950 hours and 1120 hours, the complainant and his family left their house at Bornya a suburb of Koforidua to attend church service. By 1130 hours on same day, complainant returned home and found out that, his room and store that were earlier on locked, have been opened and items including cash of GH¢2,000,00, one LG 32 inches flat screen television valued at GH¢2,000.00, unspecified number of half pieces of wax prints, assorted drinks and provisions value yet to be ascertained, various network credits values yet to be determined were all stolen. A neighbour’s CCTV camera captured a Toyota Corolla LE saloon car with registration number GX 2065-17 that was used in the theft. On 19/12/2017 at about 1420 hours, the said vehicle was found at Suhum. On same day at about 1600 hours, accused person was arrested from his hideout at Suhum and various items were retrieved from his rooms. Among the numerous items retrieved, one LG 32" flat screen TV valued GH¢2,000.00, 3 three half pieces of wax prints, assorted drinks and provisions values yet to be determined were identified by the prosecution witnesses as theirs. The accused person was handed over to Police Okorase for investigations. During investigations, the accused told the police that he bought the items from a friend called Samuel Baafi of Odorkor Official Town, Accra at Suhum at the cost of GH¢1,200.00 but has failed to assist police trace the said Samuel Baafi for his arrest. RESOLUTION OF THE GROUNDS OF APPEAL Perusing the grounds of appeal filed, it is obvious that they are all a prayer to the court for a reduction of the sentence imposed on him by the trial court. The second ground of appeal wherein the appellant states that he regrets his action and it is out of deep remorse that he is praying for mitigation of sentence cannot be considered as a ground of appeal but rather a plea to the court and so is the second ground of appeal that he is a first time offender who has learnt his lessons over the period of time served in incarceration. A ground of appeal which calls on the court to consider the reformed character of the appellant, and also to consider the lessons the appellant has learnt during his period of incarceration is nothing more than a plea to the court and cannot be considered as a ground of appeal. Also, the plea for the court to consider the psychological and negative consequences of the long incarceration coupled with the harsh prison conditions is also not a ground of 4 appeal. The first ground of appeal however prays the court to temper justice with mercy and commute the sentence to the barest minimum. The court’s duty with this prayer is to consider the sentence meted out to the appellant and determine whether according to the law and statute, same ought to be disturbed. As noted above, the appellant was firstly charged with the offence of unlawful entry contrary to Section 152 of the Criminal Offences Act 1960 Act 29. This 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 124(1) of Act 29/60 provides that “ A person who steals commits a second degree felony.” Per 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 trial judge therefore had the discretion to impose a sentence of not more than twenty-five years. The sentence of two (2) years and eight (8) years 5 imprisonment to run concurrently was therefore within the confines of the law. That being the case, then for the 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 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 6 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 and considering both mitigating and aggravating factors noted that the appellant had been convicted of similar offences and therefore the sentence had to be enhanced. Section 300 (1) of the Criminal and other offences Procedure Act 1960 (Act 30). heading “previous convictions” provides that: “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" under Part Thirteen.” S. A Brobbey in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana 2nd Edition at 215 writes that: 7 “Any previous conviction of an accused may also be considered in imposing sentence: see Act 30, s 300 as amended by Act 653. As noted already, evidence of such conviction should not be led until the conclusion of the trial and after the conviction has been pronounced. Unless the accused admits the conviction, the prosecution must prove it: see Akakpo v The Republic (Practice Note) [1974] 1 GLR 65 and Commissioner of Police v Marboah (Practice Note) [1962] 2 GLR 159, SC. A previous conviction to be taken into consideration in passing sentence is one in which the sentence imposed has been served, after which the accused has subsequently been convicted, but not where the accused is still serving the alleged previous conviction: see Blackie v The State (Practice Note) [1962] 2 GLR 219, SC. In Amoah v The Republic (supra) it was held that a previous conviction to be considered must be in relation to a similar offence unless the enactment states otherwise. In that case, the accused was convicted and fined ¢400 or two years' imprisonment with hard labour for a minor offence relating to property damage because he admitted one previous conviction for causing unlawful harm. On appeal, it was held that the previous conviction was not similar to the offence of causing damage. On the contrary, unlawful entry and stealing, for instance, have been held to be offences of the same or similar character: see Blackie v The State (Practice Note) (supra).” The evidence on record does not indicate whether the appellant had completed serving the sentence for the similar offence therefore necessitating an enhanced sentence. There is also no evidence on record for the said offences which the trial judge found were similar offences. 8 Be that as it may, the fact that an appellant is known is in itself an aggravating factor. Also contrary to his assertion in the grounds of appeal filed, he is not a first time offender and as the trial judge indicated, he had been convicted for a similar offence. A mitigating factor is the fact that most of the items were retrieved and ordered to be given to the victims however the mode and manner which the offence was also committed shows that it was not a spur of the moment act but shows the premeditation with which the offence was committed. The aggravating factors preponderating the mitigating factors, this court is not minded to temper with the sentence imposed by the trial Circuit judge. The appeal fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: APPELLANT IN PERSON DERRICK ACKAH-NYAMIKE FOR FREDERICK ADU-GYAMFI FOR THE REPUBLIC/RESPONDENT PRESENT 9 (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE 10