KUMI VRS. REPUBLIC (CR/0215/2024) [2024] GHAHC 451 (3 December 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 3RD 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/0215/2024 DANIEL KUMI @ NANA YAW CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/ RESPONDENT JUDGMENT The Appellant herein and others were arraigned before the Tema Circuit Court wherein he was charged with the offence of conspiracy to commit robbery contrary to Sections 23(1) of the Criminal Offences Act 1960 Act 29 and a second count of robbery contrary to Section 149 of the Criminal Offences Act 1960 Act 29. The appellant pleaded not guilty to the charges and at the end of the trial he was convicted on both counts and sentenced to twenty (20) years imprisonment on both counts to run concurrently. 1 It is against this sentence that the appellant filed the instant petition of appeal on the 13th of March 2024 pursuant to leave granted on the 20th of February 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 appellant regrets his actions and it is out of deep remorse that he is praying for mitigation of sentence. 2. That the appellant is a first time offender who has learnt his lessons and promises to desist from any form of crime in future when he is given the opportunity. 3. The appellant additionally prays the Honourable Court to kindly consider the psychological and negative consequences of long incarceration coupled with the harsh prison conditions and commute the sentence to the barest minimum. 4. Appellant finally prays the Honourable Court to have her natural empathy on the humble repentant appellant and reduce the sentence to the minimum. FACTS OF THE CASE The facts of the case as given by the prosecution are that A10 who was the complainant’s night watchman visited the A1 at his base at the Kwame Nkurmah Circle and complained about the seemly unfair treatment being meted out to him by the complainant who was a man of substance. A10 agreed with A1 to organize a robbery attack on the complainant. A1 was joined by A4 on the same day and with the help of A10, they conducted a thorough survey of the complainant’s house and its environs. 2 The prosecution’s case continued that the A2, A3, A5, A6, A7 and A8 were recruited for the operation and A9 supplied them with the weapons and they traveled to Prampram at midnight. They waited for a signal from A10 with whom A1 allegedly communicated on phone before the gang set off. The prosecution added that A1 to A8 scaled the wall into the complainant’s compound and A4 tied A10 up after he had pointed out the complainant’s bedroom to him. The complainant started firing warning shots and A2 and A3 fired back. The complainant run out of ammunition and ran to hide. The case of the prosecution continued further that the accused persons entered the complainant’s bedroom and subjected him and his wife to severe beatings and succeeded in robbing the household of eleven mobile phones, an ipod, two laptop computers, the complainant’s pump action gun and GH¢8,000.00. The police received a distress call but narrowly missed the accused persons. The booty was sold to A9 and the accused persons shared the proceeds. A1 was arrested and during investigations he mentioned the other accused persons’ names as the ones he contracted for the operation. They were therefore charged with their respective offences. RESOLUTION OF THE APPEAL The first 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 and promises to desist from any form of crime in future when he is given the opportunity. 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 3 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 appeal. The fourth ground of appeal prays the court to reduce the sentence imposed upon him and reduce same to the minimum. 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. As noted above, the appellant was firstly charged with the offence of conspiracy to commit robbery contrary to Section 23 (1) of the Criminal Offences Act 1960 Act 29. This 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 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 4 the 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.” What constitutes an offensive weapon or missile is defined in section 206 (3) of Act 29. 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. However since robbery is a first degree felony per Section 296 of Act 30 which is on general rules for punishment the maximum sentence for offences where the provision creating the offence does not specify it. Section 296(1) of Act 30 provides thus: “Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or a lesser term.” 5 From the above therefore, the minimum punishment the appellant could legally face for the offence of robbery which per the facts of the case was with guns which the law has described as an offensive weapon is fifteen (15) years and same for the offence of conspiracy to commit robbery. 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 6 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: “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”. 7 From the record of appeal, the trial judge upon convicting the appellant herein and the other co-accused persons, she proceeded to sentence him to twenty years in prison on count 1 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 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. 8 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 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. Even though the trial judge did not give any reasons for the sentence imposed, it is the view of this court that the sentence imposed was not excessive or wrong in principle and in statute. Perusing the evidence led on record particularly the evidence of the PW1 who recounted the harrowing events of the night and the physical abuse he went through in the hands of the appellant and the other accused persons, it is the mind of this court that the trial judge properly considered the peculiar circumstances of the case and imposed the appropriate judgment. The appellant herein was wielding a gun and actively engaged in the 9 robbery especially when the PW1 was thrown outside. It was the A4 that is the appellant herein who with a gun led the victim to the car and robbed him of his money. A court in sentencing is to consider the role played by each accused all to ensure that the punishment fits the offender. 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 was to serve as a deterrent and punitive sentence to indicate the disapproval of society of that offence. 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. MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT COUNSEL: APPELLANT IN PERSON AND PRESENT EBENEZER YAW ACQUAH FOR THE REPUBLIC/RESPONDENT PRESENT 10