Atta v S (CR/0075/2024) [2024] GHAHC 540 (12 December 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 12TH 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/0075/2024 ATTA JOSHUA CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein filled a petition of appeal at the Registry of this court on the 21st of November 2023 against the judgment of the Accra Circuit Court 5 praying this court for a reduction of the sentence. The appellant was arraigned before the Accra Circuit Court wherein he was charged with the offence of defilement of a female child under sixteen years of age contrary to Section 101(2) of the Criminal Offences Act 1960, Act 29. The appellant pleaded not guilty to the charge and at the end of full trial he was convicted and sentenced to fifteen (15) years imprisonment with hard labour. 1 GROUNDS OF APPEAL The sole ground of appeal filed is that the sentence is harsh and excessive. FACTS OF THE CASE The case of the prosecution is that the complainant Ebenezer Owusu is a tailor and the father of a 12 year old victim Dorcas Owusu Bonna all residents of Paraku Estate Dome, a suburb of Accra. The Accused Joshua Atta aged 46 years is resident at Paraku Estate, Dome and a gardener. The prosecuiton states that the complainant and accused are friends and neigbours. Based on their friendship, the accused on 11th of January 2020 at about 12:00 midday, invited the victim to his house to wash his soiled bed sheets. The prosecution states that the accused took advantage of victim and had sexual intercourse with her. The victim after her ordeal disclosed it to complainant who lodged a formal complaint at Tesano DOVVSU police station where the statements of the complainant and victim were taken. The Police issued a police Medical Report Form to complainant to send the victim to any Government hospital for examination, treatment and report. The complainant brought the victim's Police medical report form duly endorsed by a Medical Officer. The Accused was subsequently arrested and investigation cautioned statement obtained from him. After investigations, he was charged with the offence and brought before Court. RESOLUTION OF THE APPEAL 2 An appeal for sentence filed is an invitation to the court to examine the sentence to determine if according to the law and statute, same ought to be disturbed. That is, an appellate court is to examine the sentence to determine if the trial judge exercised his/her discretion appropriately. That is because where the statute proposes a range of sentence for a judge to choose from depending on the peculiar circumstances of the case, that judge is called upon to exercise his discretion. Section 101 (1) and (2) of the Criminal Offences Act 1960, Act 29 provides that: “(1) For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age. (2) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years.” Per the law, a trial judge has the discretion to choose from a sentence of seven years to twenty five years. 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, 3 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. 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”. 4 For the trial judge to exercise his or her discretion, 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 That apart, 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 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.” 5 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. Applying the above to the instant appeal, the trial judge who imposed the sentence of fifteen (15) years was within the law. Also the trial judge took into consideration the age of the victim, the intrinsic seriousness of the offence, the degree of revulsion felt by law abiding citizens of the society for the particular crime, the premeditation with which the criminal plan was executed, the prevalence of the incidence of this crime within the particular locality in Accra and the country generally. The court also considered other mitigating factors such as the fact that the accused person was a first time offender and the age of the accused person. In coming to the sentence to be meted out to the accused person appellant herein, the trial judge stated that “This court is saddened today and wonders what has become of our morals and values. Our morality and values has degenerated to such bestial levels that the accused person who is fifty-two (52) years old could defile a girl of twelve (12) years old” In submitting on the ground of appeal filed, counsel for the appellant on the issue of sentencing opined that the sentence was harsh for a first timer and being a first time offender, the court should have spared the appellant a custodial sentence. He further submitted quoting S.A Brobbey in his book Trial Courts and Tribunals of Ghana 2nd Edition at page 214 that punishment must not merely fit the crime but must also fit the criminal. His contention is that the appellant was of great service to his family and church and community at large and that mixing him with hardened criminals will impact negatively on him. 6 Even though Counsel for the appellant submitted on the conviction and asserted that no evidence whatsoever was laid before the lower court to warrant the conviction, this court will pay no heed to those submissions as the sole ground of appeal filed was against sentence. I have also perused the evidence led and same supports the conviction. In determining the appeal therefore and dealing with the submissions of counsel for the appellant, the offence of defilement does not provide for a non-custodial sentence. If the trial judge had done so, she would have acted contrary to statute which has given the sentence limits. The position of the law is that, the Courts are creatures of the law and have no business making orders that are contrary to the law. As stated by Atuguba JSC, in REPUBLIC VS HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE NATIONAL LOTTERY AUTHORITY (GHANA LOTTO OPERATORS ASSOCIATION & ORS INTERESTED PARTIES) (2009) SCGLR 390 AT 390: “It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute such as Act 722, s 58 (1) – (3) is, unless otherwise expressly or impliedly provided, a nullity.” Further to that the assertion by counsel for the appellant that the appellant herein was of great service to his family and church and the community at large are mere assertions and not backed by any evidence on the record. There is also no evidence on record that the accused person has a new born baby as asserted to by counsel for the appellant. These assertions even if proven are nothing more than a plea to the court and cannot be considered as a ground of appeal. 7 In determining this appeal against sentence, I have noted the age of the victim, the wide age gap between the victim and the appellant and the premeditation with which the offence was committed which are aggravating factors. The mitigating factors are the fact that he is a first time offender and he is also advanced in age. In the case of Ignatius Howe v The Republic CRA J3/3/2013 of 22/5/2014 unreported, it was held that "In determining appropriate sentence to impose, a court of law is obliged to weigh all the aggravating factors as against whatever mitigating factors brought to the court’s attention. The aggravating factors include: the amount of force used by the accused or perpetrator, the amount of injury inflicted upon the victim/s, whether or not the victim falls within a category of vulnerable persons such as old age or sickness, whether this was a planned offence, time of the offence such as night, group or gang attack, dehumanizing actions. The possible mitigating factors include: less use of force, less injury, young offender, low mental capacity, spur of the moment, daylight, and single offender." I therefore set aside the sentence of fifteen years and substitute same with a sentence of twelve (12) years. The sentence of twelve (12) years will commence on the 29th January 2021 when the appellant was sentenced. MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT PARTIES: APPELLANT PRESENT 8 COUNSEL: OSUMAN MOHADEEN FOR THE APPELLANT PRESENT ENAM LOH-MENSAH FOR THE REPUBLIC/RESPONDENT PRESENT 9