BIKOR VRS. REPUBLIC (CR/0411/2024) [2024] GHAHC 450 (20 December 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 20TH DAY OF DECEMBER 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0411/2024 KOBINA BIKOR CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant/A2 herein and one other Emmanuel Ayirah @ Birthday as A1 were arraigned before the Ho Circuit Court wherein they were charged with one count of the offence of conspiracy to commit robbery contrary to Sections 23(1) and 149 of the Criminal Offences Act 1960 (Act 29) and two counts of robbery contrary to Section 149 of the Criminal Offences Act 1960 (Act 29). The Appellant/A2 and the other pleaded not guilty to the charges and at the end of the trial they were convicted on the counts and the appellant was sentenced to twenty two (22) years imprisonment on all the three counts to run concurrently. The A1 was sentenced to eighteen (18) years IHL on all the counts, sentence to run concurrently. The court 1 ordered that the 32 Benq Flat Screen TV belonging to the PW1 which was retrieved from the A1 should be returned to her. It is against this sentence that the appellant filed the instant petition of appeal on the 25th of July 2024 pursuant to leave granted on the 3rd July 2024 praying the court to mitigate the sentence imposed by the trial court. GROUNDS OF APPEAL The ground of appeal filed are as follows: 1. That the sentence imposed on the appellant is harsh and excessive considering the circumstances surrounding the case and the conditions of detention within the prison confines. 2. That the Appellant has really learnt his valuable lessons over the period of time served in prison custody under the harsh and severe conditions of detention and vowed never again to engage in any criminal activity. 3. That the Appellant with a contrite heart is on his knees praying for the Court's prerogative mercies as his remorse deeds are screamingly obvious in his examplary way of life which has humbled and made him not to have any issues or any bad record in the prisons facility and before the authorities in charge of the prisons facility. 4. That the humbled repented Appellant has served almost eight (8) years imprisonment IHL in prison custody under harsh and severe conditions of detention and has felt the venom of the law, hence, his plea for mitigation. 5. That the Appellant further states that as a breadwinner of the family, the Honourable Court should kindly take into consideration the fact that he has left behind a wife and innocent chidren 2 of school going age who have become destitute and equally suffering as a result of his incarceration. Hence his plea for mitigation of his Sentence. FACTS OF THE CASE The facts based on which the accused persons were charged and arraigned before the court are that, on 27th day of May, 2015 at about 5:00am the two complainants in this case reported to Police that, at about 1:40am, same day, when they were sleeping in their house at Ho New Hosing area, five (5) armed robbers wielding locally made pistols, machetes and wearing facemasks broke into their rooms and attacked them. Complainant Janet Abiwu told Police that, after subjecting her family to a mental torture, the armed robbers ransacked her bedroom and took cash the sum of GH¢6,800.00, one Benq 32 inch flat screen Television valued GH¢1,200.00, one Multi TV decoder valued GH¢300.00 and one Nokia Mobile phone valued GH¢500.00 and all amounting to GH¢8,800.00. The second complainant Maverick Agbelengor also told Police that the armed robbers took away his two Dell Laptop Computers valued GH¢2,700, two Samsung Mobile Phones valued GH¢1,200.00, two Vodafone modems valued GH¢ 120.00 and all amounting to GH¢4,020.00. And during investigation of this case, Police had information about A1 and caused his arrest. Al was said to have confessed to the crime and mentioned A2 and the three others at large as the persons he committed the crime with. Al also led Police to retrieve the 32 inch Benq TV which the 1st complainant Janet Abiwu later identified to be hers. A2 was also arrested later and both A1 and A2 were charged with the offences and arraigned before court. RESOLUTION OF THE APPEAL The appellant clearly prays for mitigation of sentence imposed on him by the trial Circuit 3 Court. The other grounds of appeal filed praying the court to consider the harsh and severe conditions of detention and his remorse cannot be considered as a ground of appeal but rather a plea to the court. 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. The court’s duty in this appeal therefore is to consider the sentence meted out to the appellant and determine whether according to the law and statute, same ought to be disturbed. Section 23(1) 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.” Section 24(1) of Act 29 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 149 of Act 29 as amended by Act 646 provides that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment for a term of not less than ten (10) years and where the 4 offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” The minimum sentence for the offence of robbery is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. What constitutes an offensive weapon or missile is defined in section 206 (3) of Act 29/1960. Section 206 (3) provides thus: “For the purposes of this section (a) “Offensive missile” includes a stone, or a brick likely to cause harm if thrown (b) “Offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. A person who commits robbery with the use of an offensive weapon or offensive missile shall be sentenced to a minimum of fifteen years imprisonment. A person who commits robbery without the use of offensive weapon or offensive missile shall upon conviction be liable to a minimum sentence of ten years. From the above therefore, the minimum punishment the appellant could legally face for the offence of robbery which per the facts of the case and the evidence led on record was with a gun, cutlasses and a knife which the law has described as an offensive weapon is fifteen (15) years and same for the offence of conspiracy to commit robbery. 5 A trial judge therefore in sentencing an accused person who has been convicted of the offences such as the appellant was charged with has the discretion in imposing a sentence of fifteen (15) years to life imprisonment. 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 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 Apaloo vrs The Republic [1975] 1 GLR 156 at 190, the court stated that: 6 “The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case or that the sentence is wrong in principle”. The dictum of Taylor J (as he then was) in Haruna vrs The Republic [1980] GLR 189 at page 191 was that: “The question of sentence was a matter of discretion with all courts of justice. However, the discretion was exercisable on well-known principles. In awarding sentence, all the circumstances must be considered. If there were circumstances tending to mitigate the application of the deterrent principle, then reasons must be given why those circumstances must be ignored if a deterrent sentence was imposed. If it was not done, then the discretion had not been properly exercised and an appellate court could interfere with the said exercise of discretion. If, however, all the circumstances relevant to the question of appropriate sentence have been adequately considered, the exercise of a discretion by a lower court ought not to be impugned by an appellate court”. From the record of appeal, the trial judge upon convicting the appellant herein and the other co-accused person, proceeded to sentence the appellant to twenty-two (22) years IHL on count 1, 2 and 3. As far as appeals against sentences are concerned, an appellate court must rarely interfere with sentencing passed by a trial judge unless it is manifestly excessive, on case-to-case basis. This law was enunciated in the case of RAHIM IBRAHIM & 3 OTHERS V THE REPUBLIC H2/2/201 that ‘’The principles upon which this Court acts on an appeal against sentence are well-settled. It does not interfere with sentence on the mere ground that if members of 7 the court had been trying the appellant they might have passed a somewhat different sentence. The Court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle.” See Apaloo and Others vrs The Republic [1975] 1 GLR 156.” The case of Kwashie v The Republic [1971] 1 GLR 488 Azu-Crabbe, JA espoused thus: In determining the length of sentence, the factors which the trial judge is entitled to consider are: 1) The intrinsic seriousness of the offence 2) The degree of revulsion felt by law-abiding citizens of the society for the particular crime; 3) The premeditation with which the criminal plan was executed; 4) The prevalence of the crime within the particular locality where the offence took place; or in the country generally; 5) The sudden increase in the incidence of the particular crime; and 6) Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed The application of the above stated grounds is at the behest of the trial judge who may exercise their judicial discretion as each case may demand. In all cases, the discretion must be exercised taking into consideration the maximum sentence permitted by the statute creating the offence. See: Banda v The Republic (1975) 1 GLR 52. An appellate court may not simply interfere with the exercise of this discretion simply because the said appellate judge believes it would have exercised the discretion differently. As outlined in the case of Odonkor v The Republic (1967) GLR 690; when the appellate judge is faced 8 with a prayer of interfering with a sentence the court must consider the following matters: 1) Whether the sentence is manifestly excessive, considering the circumstances of the case 2) Whether the sentence is wrong in principle or based on a wrong proposition of law 3) Whether in sentencing the trial judge failed to exercise discretion properly From the appeal records and per the law espoused supra, the trial judge’s sentence was proper both on the law and in principle. The trial judge took into consideration the fact that the appellant was known and serving a prison term for committing a similar offence at Aflao and also the fact that robbery is on the ascendancy among the youth and as such must be condemned and curtailed. Section 300(1) of the Criminal and other Offences Procedure Act, 1960 (Act 30) under the 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: “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 9 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 trial judge was provided with information on record that the A2/Appellant herein had been convicted and serving a prison sentence for the offence of robbery which was a similar offence. The appellant also admitted same as such unlike the A1 who was sentenced to eighteen (18) years IHL because he was a first time offender, the appellant herein was sentenced to twenty two (22) years IHL. In determining this appeal therefore against the sentence imposed by the court, it is the view of this court that the sentence imposed was not excessive or wrong in principle and in statute. Considering the evidence led on record particularly the evidence of the PW1 who recounted the harrowing events of the night and the physical abuse she and the other occupants of her household went through in the hands of the appellant and his accomplices at page 14 of the record of appeal to wit “I opened my door, 3 men wearing masks and holding cutlasses knife and gun rushed on me. The one holding the cutlass used the flat side of 10 the cutlass to hit my back. They entered my bedroom and ordered me to bring my money else they will kill me.” This court is not minded to disturb the sentence. The appellants and his accomplice also per the evidence led threatened to have sexual intercourse with one of the occupants of the house they robbed and also picked up the three year old granddaughter of the PW1 and threatened to take her away. The offence of robbery and especially the way and manner this attack was carried out was rather grave and to the mind of this court the trial judge’s sentence which was to serve as a deterrent and punitive sentence to indicate the disapproval of society of that offence was proper. Also the gravity of the offence committed by the appellant and his accomplices necessitated the sentence imposed. This court is not minded to disturb the sentence. The appeal is for the above reasons dismissed. PARTIES: APPELLANT PRESENT COUNSEL: APPELLANT IN PERSON 11 DERRICK ACKAH-NYAMIKE FOR EBENEZER YAW ACQUAH FOR THE REPUBLIC/RESPONDENT PRESENT MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 12