Keelson v S (CR/0384/2024) [2024] GHAHC 538 (30 October 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 30TH DAY OF OCTOBER 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/0384/2024 MARK KEELSON @ ABLODE CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein was arraigned before the Accra Circuit Court on the 29th of January 2016 wherein he was charged with the offence of conspiracy to commit robbery contrary to Sections 23(1) and two counts of robbery contrary to Section 149 of the Criminal Offences Act 1960 Act 29. The appellant pleaded guilty to the charges after same were read and explained to him in the Twi language. He was convicted on his guilty plea and sentenced to thirty nine (39) years imprisonment in hard labour on each count to run concurrently. It is against this sentence that the appellant filed the instant appeal on the 8th of July 2024. 1 GROUNDS OF APPEAL The grounds of appeal filed are as follows: 1. That the sentence imposed on the Appellant is harsh having regard to the circumstances surrounding the case hence his plea for reduction of sentence. 2. That the Appellant is remorseful and promise never to indulge in any criminal activities in future. 3. That the Appellant prays that the Honourable Court will temper justice with mercy by reducing the sentence of Thirty -Nine (39) years imprisonment IHL to the minimum. FACTS OF THE CASE The facts of the case as given by the prosecution is that the complainants in this case are six families including a serving Police Inspector. The complainants are resident at Galilea and Kalabule a suburb of Amanfro in the Ga West Municipal Assembly. The Accused person is a driver's mate resident at Kasoa. The case of the prosecution is that on the 29th of June 2015 between the hours of 12:40am and 2:30am, six armed men stormed the houses of the six families. They forcibly broke into their victim’s rooms and subjected them to severe beatings amidst firing of guns before taking away their valuables including large sums of money, mobile phones, laptops computers and jewelries. In all three women were raped during the robbery attack. The case was reported to the Police and a full scale investigation was launched and two members of 2 the robbery gang namely Issac Kene and David Ahortor were arrested on 1st of July 2015 and 3rd July 2015 respectively. They were having in their possession a single barrel gun, one locally manufactured pistol, sixty rounds of life cartridges, face masks and some of the robbed items which were identified by their victims. On 17th of July 2015, they were put before Accra Circuit Court One presided over by H/L Justice Francis Obiri and sentenced to 35 years IHL after they had pleaded guilty. They are currently serving their sentences at the Medium Security Prison Nsawam. A member of the robbery gang Daniel Akorli was lynched by a mob at Obuom Road, Kasoa while on another robbery expedition some days later. On 21st January 2016, the Kasoa District Police acted on intelligence and arrested accused person Mark Keelson alias Ablode, who had been on the Police radar for some time now, at his hideout at Opetekwei. During interrogations, the accused person admitted being a member of a number of robbery incidents in and around Kasoa including this very case and mentioned the last member by name Edward Ayekple currently on the run. In his investigation caution statement, the accused person admitted the offence and pleaded to be dealt with leniently. After investigations, he was accordingly charged with the offences. RESOLUTION OF THE APPEAL From the three grounds of appeal filed, the appellant is clearly seeking this court to mitigate the sentence imposed on him. Even though he prays the court to consider his reformed character, the law is clear that 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. Further to that the fact that 3 an appellant was unrepresented, an illiterate and unskilled in law cannot be considered as a ground of appeal so long as the record can show that the charges were read and explained to the accused person in a language he understands and he understood same and participated in the proceedings. The duty of the court in this judgment and any appeal against sentence is to consider the sentence meted out to the appellant to make a decision whether according to the law and statute, same ought to be disturbed. Section 23 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 provides the law on robbery and it provides that: (a) “A person who commits robbery commits a first degree felony.” Robbery is a first degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It provides thus: 4 “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 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. The maximum sentence for robbery of any form is life sentence. Section 296 of Act 30 which is on general rules for punishment prescribes the maximum sentence for offences where the provision creating the offence does not specify it. Section 296(1) of Act 30 provides thus: 5 “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.” 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. In sentencing the appellant, the trial judge noted that he had taken into consideration the accused’s plea for mitigation, the six days spent in custody and also considered the “severity of the offence and the mode adopted by the accused in committing the robbery with no regard for human beings.” He further noted that “the serious nature of the offence not only warrants a deterrent sentence but also a sentence to keep the accused away for a long time to dissuade people who not deny people of their hard earned properties but their person subjected to pains and humiliation” 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.” 6 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 In Article 14 of the Constitution, 1992, any time spent in detention before or during the trial is to be considered when imposing a sentence. 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 7 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 as noted above, the trial judge’s sentence was proper both on the law and in principle. That apart, it is the considered view of this court that the sentence cannot be considered to be manifestly excessive considering the circumstances of the case. From the record, the events of the night which culminated in the charges involved the dignity of women being abused, various sums of money stolen, physical abuse among others. I say so mindful of the fact that the appellant from the charge sheet is not charged with the rape of the victims. The learned State Attorney therefore in her submissions filed on the 14th of October 2024 submitted that “the sentence of 39 years imposed for the three counts is neither harsh nor excessive and is commensurate with the offence that the appellant and his accomplices committed…Although the appellant was cooperative during the trial, confessed to committing the crime, pleaded guilty, thereby reducing the length of trial, there are aggravating factors that support a punitive sentence.” That apart, I have considered the manner in which the offence was committed. The appellant and his accomplices went with guns on the robbery spree with the intention of preventing or overcoming the resistance of anyone to the stealing. To further prevent any resistance to the stealing, they subjected their victims to severe beatings. From the 8 facts given, the manner of commission of the offence indicates that this was a planned attack and not a spur of the moment act. The appellant and his accomplices procured guns and even planned the time of their attack from 12:40 am till they ended their attack. 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. Considering the above, it is clear that the trial judge gave reasons for imposing a deterrent sentence and this appellant court is not minded to impugn the exercise of his discretion. Therefore despite the appellant’s submission filed on the 29th of July 2024 pleading with the court to reduce his punishment to the lowest minimum as far as robbery with the use of an offensive weapon is concerned, this court is not minded to disturb the sentence. The appeal is for the above reasons dismissed. (SGD) MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT COUNSEL: APPELLANT IN PERSON 9 RITA OFOSUA APPIAH FOR THE REPUBLIC/RESPONDENT PRESENT 10