Boateng v The Republic (CC15/028/2024) [2024] GHAHC 554 (22 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON FRIDAY THE 22ND DAY OF NOVEMBER 2024 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUITNO. CC15/028/2024 YAWBOATENG VS THEREPUBLIC JUDGMENT ConvictAppellant present Republic Respondentabsent ElizabethAnyeming,AssistantStateAttorneyforthe Republic Respondent present FlorenceAkua Danso holding brief ofGeorgeFuseini forthe ConvictAppellant INTRODUCTION On 20th January, 2014, the Circuit Court, Sunyani presided over by His Honor John Ekow Mensah as he then was, convicted and sentenced the Appellant to fifty three (53) years imprisonment In Hard Labour (IHL) for the offence of Conspiracy to Commit 1 Crime contrary to section 23 (1) of the Criminal OffencesAct 1960 (Act 29) and Robbery contrarytosection149ofthe CriminalOffencesAct 1960(Act 29). Aggrieved by the sentence, theAppellant filed this appeal against the sentence. The sole ground of the appeal is that the sentence is harsh and excessive having regard to the peculiar circumstances ofthe case. The reliefs sought is that the judgement of the trial Judge sentencing the Appellant to fifty three (53)yearsbe set aside and alesser sentence substituted. FACTS The Complainant is a taxi driver, A1, the Appellant is an electrician, A2 and A3 are at large. The Complainant was in charge of an Opel Astra with registration number BA 949-11 at the Bosoma market.A1,A2 andA3 charted the taxi to take them to Berlin Top, Sunyani. TheAppellant signaled the Complainant to stop at a place near the Holy Spirit Catholic church. A1 pretended to be searching for his wallet to pay the Complainant. Just as the Complainant got down for his moneyA3 attempted to knock the neck of the Complainant with a telephone wire and A1 attempted to hit the head of the Complainant with a multipurpose hammer but the Complainant held the hand of A1 and a struggle ensued betweenA1 and the Complainant which landed them in a nearby gutter.WhileA1 was struggling with the Complainant,A2 andA3 snatched the car keys from the Complainant and fled with the taxi. The Complainant raised alarm and a 2 security man nearby with the help of others arrested A1 and took him to the Police Station.At the Police Station,A1 was re-arrested and detained. On 18th January, 2014 the Police retrieved the taxi which was being driven away by A2 and A3 at a suburb of Dormaa.A2 andA3 abandoned the taxi when they were givena hot chase by the Police. Aphotograph of A1 and driving license of A2 were found when the taxi was searched. After investigations, A1 was arraigned before the Circuit Court Sunyani and he was sentenced to fifty three (53) years imprisonment IHL. A1 mounted this appeal against his sentence. WRITTEN SUBMISSSION OF COUNSEL FOR CONVICT APPELLANT (APPELLANT) In a well written submission of Counsel for the Appellant replete with applicable authorities, Counsel noted factors to be considered by a trial Judge in sentencing as stated in the case of Kwashie vs the Republic [1971]1Ghana Law Report (GLR) 488 at 493 including mitigating and aggravating circumstances such as extreme youth and good character of the Appellant. Counsel submitted that the Appellant was twenty six (26) years old when he committed the offence and that being a young man and for that matter a youth, the trial Judge should have taken that into consideration in sentencing him. The Appellant was a first offender which the trial Judge did not take into consideration before sentencing the Appellant. Counsel noted that the appellate Court would interfere with the sentence of a trial Court when the sentence is harsh and 3 excessive. Counsel acknowledged that mitigation of sentence is at the Court’s discretion taking into consideration mitigating factors surrounding the commission of the offence. Counsel contends that there are mitigating factors which if the trial Judge had properly considered, he would have imposed a lesser sentence on theAppellant. Counsel argued that the fact that the Appellant was a first offender should have been considered as a strongand compelling mitigating factorby thetrial Judge. Counselsubmitted that theAppellant had served ten(10) yearsof the sentence in prison and he had shown remorse and pledged not to commit a crime again if given a second chance. Counsel argued that the appellate Court will interfere with the sentence of a trial Court if the sentence is manifestly excessive. According to Counsel, no lives were lost and the Complainant did not sustain any injury. The taxi cab belonging to the Complainant was retrieved. Counsel prayed the Court to take notice of the totality of the facts and record, available mitigating factors to set aside the sentence and substitute it with the minimum sentence. Counsel argued that in the light of the trial Court’s failure to consider mitigating factors, the appellate Court’s interference with the sentence has become imperative. SUBMISSIONBY COUNSEL FORTHE REPUBLICRESPONDENT (RESPONDENT) Counsel for the Respondent submitted that every sentence imposed must be sanctioned by law. With reference to the case of Haruna vs. The Republic 1980 GLR189, she argued 4 that sentence is subject to the Court’s discretion which must be exercised within the confines ofestablished principles and byconsidering mitigating and aggravating factors. Counsel noted that, it is important for the trial Judge to give cogent reasons for a lenient or deterrent sentence. According to Counsel, the trial Judge acted within the confines of section 149 (1) of Act 29 as amended by Act 646 when he imposed a sentence of fifty three (53) years IHL on the Appellant. However, he did not give reasons for sentencing the Appellant to fifty three (53) years IHL. Counsel argued that it is not clear on record whether the trial Judge intended to pass a deterrent, punitive or reformative sentence. Furthermore, the trial Judge did not show that he considered any aggravating or mitigating factors in passing the sentence. The Appellant as submitted by his Counsel, did not waste the Court’s time and pleaded guilty. There is no record that he is known whichmakeshim afirst offender. The Complainant did not suffer any serious injury from the robbery, the vehicle was retrieved and the Court ordered that it should be restored to the Complainant. Counsel prayed the Court to have a second look at the sentence of fifty three (53) years IHL imposed on the Appellant in the absence of any aggravating factors on record. She contends thatit is not certain onwhichcount theAppellant was sentenced for fifty three (53) years and that four (4) years imprisonment for conspiracy or robbery is not allowed by the applicable law, that is sections 23 (1) and 149 (1) of the Criminal Offences Act as amended by Act 646 of 2003. Counsel prayed the Court to alter the sentence of fifty 5 three(53) yearsand give theAppellant the appropriate sentence inaccordance with law. Counsel notedthat onthe authority of section30 (a)(ii) ofthe CourtsAct, 1993 (Act 459) the Court has power to alter the findings, maintain the sentence with or without altering the findings, reduce or increase the sentence. Counsel eventually prayed the Court to consider mitigating and aggravating factors that inure to the benefit of the Appellant to impose in her view an appropriate sentence of twenty five (25) years IHL considering the circumstancesofthe case. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW In the case of Dexter Johnson vs the Republic [2011] 2 Supreme Court of Ghana Law Report(SCGLR) 601at 606theCourtheld asfollows; “What was meant by an appeal being by way of re - hearing was that the appellate court had the powers to either maintain the conviction and sentence, or set it aside and acquit and discharge, or increase the sentence. In the instant appeal, it was the duty of the Supreme Court to consider in its entirety, the appeal record before it, and substitute itself as the trial court and the Court of Appeal” In the light of the above, I hereby proceed to consider the record of appeal in its entirety and substitute myself as the trial Circuit Court and appellate Court accordingly. The record of appeal shows that on 20th January, 2014 the Appellant was arraigned before the trial Circuit Court Sunyani before His Honor John Ekow Mensah on charges of 6 Conspiracy to Commit Crime Contrary to Section 23 (1) of the Criminal Offences Act, 1960 (Act 29) and Robbery Contrary to Section 149 (1) of the Criminal OffencesAct 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 2003 (Act 646). It is provided by Sections 23 (1), 149 and 150 (3) of the Criminal Offences Act 1960 (Act 29) asamended bythe CriminalCode (Amendment)Act, 2003(Act 646)as follows; Section 23(1) “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 previous concert or deliberation, each of them commitsa conspiracyto commitor abet the criminal offence.” Section 149 (1), (3) of the Criminal Offences (Amendment) Act 2003, (Act 646) and section 150ofthe Criminal Offences Act, 1960(Act 29)provides that; Section149 Aperson who commitsrobbery commits afirstdegree felony 149(1) (1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on a trial summarily or on indictment, to imprisonment for a term of not less than ten years, and 7 where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall uponconviction be liableto imprisonmentfor aterm of notless than fifteenyears. 149 (3). In this section “offensive weapon” means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; “offensive missile” includes a stone, brick or any article or thing likelyto causeharm, damage or injury if thrown” 150.Definition ofrobbery Aperson who steals athing commitsrobbery. a. If in, and for the purpose of stealing the thing, that person uses force or causes harm to any person, or b. If that person uses a threat or criminal assault or harm to any other person, with intent to preventor overcomethe resistanceof the personto stealing of the thing. The facts indicate that the Appellant and two others at large on 17th January, 2014 at about 4:30am hired the services of the Complainant a taxi driver to take them to Berlin Top Sunyani. On their way, close to the Holy Spirit Catholic Church, A1, the Appellant signaled the Complainant to stop. A1 pretended to take money from his wallet to pay the Complainant. When the Complainant got down to collect his money, A3 at large 8 attempted to knock his neck with a telephone wire, A1 attempted to hit the Complainant’s head with a multipurpose hammer but the Complainant held his hand. A1 and the Complainant struggled and fell into a nearby gutter. A2 and A3 at large succeeded in snatching the car key from the Complainant and fled with the car. The Complainant raised alarm and the Appellant was arrested and detained. He was arraigned in Court after investigations was concluded. The Appellant was self- represented. After the charges were read and explained to him, he pleaded guilty simpliciterto thecharges. The trial Courtconvicted and sentenced him asfollows; “BYCOURT; A1 is convicted on both countsof charges (sic)on hisown plea. SENTENCING Accusedperson is sentenced to a prison term of 53years IHL. On the 2nd count his 1st count(sic) accusedis sentenced toserve 4years IHL. Both termsare tobe served concurrently. RESTITUTION ORDERS.Prosecutor to returnthe retrieved taxi cabto the owner forthwith.” The record ofappeal as examined andnoted aboveshows that theAppellant and his co- conspirators and accomplices used a “telephone wire” and multipurpose hammer to prevent or overcome resistance from the Complainant in stealing the taxi. The 9 Appellant facilitated the success of the robbery operation by engaging the Complainant in a struggle which landed the Complainant and theAppellant in a nearby gutter which enabled A2 and A3 to snatch the car keys from the Complainant and fled with the taxi. The taxi was however retrieved by the Police the next day and there is no record of any injurysustained by the Complainant in the process. Clearly, from the facts, the Appellant and his accomplices fell within the definition of robbery in Sections 149 (1), (3) and 150 cited supra for attempting to use a telephone wire and a multipurpose hammer to cow the Complainant into submission. Counsel for the Appellant agrees that the Appellant fell within Section 149 (1) with minimum sentence of fifteen (15) years. It is useful to add that although the law provides a minimum sentence of ten (10) years for robbery when offensive weapon is not used and a minimum sentence of 15 years when offensive weapon is used, it does not provide a maximum sentence. Therefore, the Courts are guided by the exercise of their discretion judiciously in that regard. Counsel for the Republic noted that such discretionary power istobe exercised within the confines ofestablished principles. Article 296ofthe 1992Constitution provides that; “Where in this Constitution or in any other law discretionary power is vested in any person or authority_ a. that discretionary power shall be deemed toimply aduty to be fair and candid; 10 b. the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudiceor personaldislike and shall be in accordancewith due processof law;” The question is, did the trial Court exercise its discretion within the confines of Article 296ofthe 1992Constitution? Was the sentence of fifty three (53) years in hard labour imposed on the Appellant by thetrial Courtfair andcandid orwasit arbitrary? Iwill answerthequestions posed abovelater. The record of appeal shows that the Appellant was twenty six (26) years when he committed the crime. Although at twenty six (26) years the Appellant is not a child but an adult and therefore, he should know better, the fact that he is young cannot be over- emphasized. Counsel for the Appellant submitted with reference to the case of Torto vs the Republic [1971]GLR 342and quotedthe Courtasfollows; “The appellant is a young man in his middle twenties. He has only just left school and this is the first time that he has gone wrong. We do not think that the public interest is advanced by familiarizingyoung persons with prison life; certainly not for long periods. We bear in mind that the appellant behaved as an unruly ruffian on the day in question and we are not unmindful of the present upsurge of crimes involving violence in the country. But nevertheless, it seems to us wrongto keep this young and firstoffender inprisonfor as long as sevenyears.” 11 It is useful to note that in the above case, the Court reduced the Appellant’s sentence of seven (7) years to four (4) years imprisonment for the offence of manslaughter after taking into consideration his extreme youth and the fact that he is a first offender. Similar sentiments were expressed by the Supreme Court in the case of Frimpong Alias Iboman vs The Republic [2012] 1 Supreme Court of Ghana Law Report (SCGLR) 297 at304the Court held that; “The court would therefore advocate a scheme of sentence where the length of the sentence, while being commensurate to an extentwith the gravity of the crimeand revulsion which law -abiding citizens felt towards the crime, would be such that, the peers and younger persons of society would have an opportunity to observe the life of the convict after his release and hopefully be deterredfromcommittingcrimes.” The trial Circuit Court did not consider the age of the Appellant at all in imposing the fifty three (53) year sentence on him. The facts also show that the Appellant is a first offender and that was his first brush with the law. He was self-represented and without wasting the Court’s time he readily pleaded guilty simpliciter to both charges. It is trite law that first offenders should not be treated as recidivists and where an accused person pleads guilty without wasting the Court’s time, he is supposed to be given some credit. The trial Court did not consider this. Counsel for the Appellant argued that first offenders must be given less prison terms and that the Appellant being a first offender, it was better for him to be given a lesser term of imprisonment. Counsel for the 12 Republic stated that the Appellant did not waste the Court’s time and pleaded guilty. There is no indication that he was known which gives the impression that he is a first time offender which should have been taken into consideration by the trial Circuit Court. The Frimpong @ Iboman’scase cited supraalso stated atpage 328that; “It is alsogenerally accepted that a firstoffender mustnormally be givena second opportunity to reform and play his or her role in society as a useful and law-abiding citizen. That is why it is desirable for a first offender to be treated differently when a court considers sentence to be imposedon a firstoffendervis-a-vis a secondor habitual offender.” The trial Court did not consider the fact that theAppellant is a first offender and that he readily pleaded guilty withoutwasting the Court’stime. The record of appeal also shows that although the robbery incident involved a struggle especially between the Appellant and the Complainant, the Complainant did not sustain any injury, nothing of the sort is reported on record. Although the Appellant held a multipurpose hammer, he only attempted to use it on the Complainant. The Complainant foiled his attempt by holding the Appellant’s hand. A3 also attempted to knock the head of the Complainant with a telephone wire but he was not successful. The car which was whisked away byA2 andA3 was retrieved the next day and the trial Court ordered prosecution to restore it to its owner. Counsel for the Appellant stated 13 that apart from the mitigating factors, no lives were lost and the Complainant did not sustain any injury at all. The taxi cab belonging to the Complainant was retrieved for himand thereforetheAppellant should be givenasecond chance. The Republic also noted that the Complainant did not suffer any serious injury as a result of the robbery and the Complainant’s vehicle was eventually retrieved and the Court ordered for it to be restored to the Complainant. Both Counsel for the Appellant and the Republic held the view that the trial Court did not consider mitigating and aggravating factorsbeforesentencing theAppellant. Counsel for the Appellant noted that from the record of appeal, the Appellant was not known to the law and also pleaded guilty, these mitigating factors were unfortunately pushed aside since the sentence imposed was harsh and excessive, a clear indication that all existing mitigating factors as discussed above, were sadly not considered by the trial Court at the time sentence was imposed. Counsel cited the case of Asaah Alias Asi vs The Republic [1978] GLR 1, where the Court held that in dealing with an appeal of this nature the Court has to find out if there were mitigating factors that the Court considered orfailed to consider.If the Court considered them, his discretion will be said to have been properly exercised and vice versa. Counsel for the Republic noted that the trial Court did not give reasons for the sentence imposed on the Appellant because the record of appeal did not show any. According to Counsel, the record of appeal is not even clear about the sentence imposed. It is not clear from the record whether the Judge 14 intended to pass a deterrent, punitive or reformative sentence. She cited the case of Haruna vsThe Republic (1980) GLR189tosupport hersubmission. In the light of the foregoing, the Court is of a considered view that the trial Court did not consider mitigating factors in sentencing theAppellant notably; theAppellant being young, a first offender, readily pleaded guilty without wasting the Court’s time and the fact that the stolen taxi was retrieved. The Complainant did not sustain any injury as nothing is on record to that effect. The Court agrees with both Counsel that if the trial Court had taken the mitigating and aggravating factors into consideration, he would not have sentenced the Appellant to fifty three (53) years in hard labor. In the light of the foregoing, the Court is ofa maximum conviction that the trial Court did not exercise its discretion properly within the confines of Article 296 of the 1992 Constitution cited supra and the sentence of fifty three (53) yearsin hard labour is arbitrary. It is important to consider the fact that upon his sentence on 20th January, 2014, the Appellant has served ten (10) years out of his sentence of fifty three (53) years. In the light ofArticle 14 (6) of the 1992 Constitution, I take into account that the Appellant has spent ten (10) yearsin prison already. Counselfor theAppellant prayed theCourttoimpose the minimumsentence ofrobbery, that is fifteen (15) years while Counsel for the Republic proposes twenty five (25) years. By the power vested in thisAppellate Court in Section 30 (i), (ii) and (iii) of the Courts Act 1993 (Act 459) which provides to the effect that in a criminal matter on appeal from 15 conviction or acquittal, the Appellate Court can reverse the finding and sentence, alter the finding, maintain the sentence with or without altering the finding, reduce or increase the sentence; with or without such reduction or increase and with or without altering the finding, alter the nature of the sentence, I hold a maximum conviction that the sentence of fifty three (53) years imposed on theAppellant by the trial Circuit Court Sunyani presided over by his Honour John Ekow Mensah on Monday the 30th day of January, 2014 is harsh and excessive having regard to the peculiar circumstances of the case. In the circumstance, I hereby set aside the sentence of fifty three (53) years in hard labour imposed on the Appellant. The Court takes into consideration the five-fold purpose of sentencing as stated in the case of Frimpong @ Iboman vs The Republic cited supra.At page332,the Courtstated asfollows; “Where the appellant complains about the harshness of a sentence … he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to safeguard this country.” I have considered the fact that robbery is a first-degree felony. In the light of the mitigating factorswhich are; 1. That theAppellant wasyoung, twenty six(26) yearswhen he committed the offence. 16 2. That theAppellant wasafirst offender when he committed theoffence. 3. That the Appellant readily pleaded guilty to the charges without wasting the Court’s time. 4. That no injury was caused to the Complainant as none is shown on the record of appeal. 5. That the taxicab which was subject ofthe robbery wasretrieved by the Police and the trialCourtaccordingly ordered forit tobe restored toits owner and that 6. The Appellant having served 10 years imprisonment out of fifty three (53) years imprisonments imposed on him has palpably shown remorse to the Court and noted asfollows; “I have regretted my action. If I get the opportunity to be set free, I will never commit such an offence. I have however benefitted by acquiring a degree and I also got the opportunity to know and getcloser toGod” 17 I have heard Counsel for the Appellant’s prayer to the Court to hand down a minimum sentence of fifteen (15) years to theAppellant. I have also heard the proposal of Counsel forthe Republic forasentence oftwentyfive(25) yearstobe imposed ontheAppellant. I have further considered the peculiar circumstances of the case and in the light of the totality of the facts and evidence before me, I hereby declare that the appeal succeeds in its entirety. Having set aside the sentence of fifty three (53) years imposed on the Appellant by the trial Circuit Court, Sunyani presided over by His Honour John Ekow Mensah, I hereby substitute the fifty three (53) years imprisonment IHLwith twenty (20) yearsimprisonment IHL(onbothcounts/Sentencesto runconcurrently). (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 22NDNOVEMBER2024 18