BENJAMIN ZIGAH VRS THE REPUBLIC (D15/03/2023) [2024] GHAHC 403 (16 October 2024)

1 16-10-2024 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD AT NKAWKAW - EASTERN REGION ON TUESDAY THE 16TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE. ------------------------------------------------------------------------- SUIT NO. D15/03/2023 BENJAMIN ZIGAH VERSUS THE REPUBLIC ------------------------------------------------------------------------------------------- PARTIES: Appellant in lawful custody. LEGAL REPRESENTATION Irene Sitsofe Attipoe Esq. holding the brief of Cyril Boateng Keteku for the Republic present. Isaac Aidoo Esq. for the Appellant present. ------------------------------------------------------------------------------------------- JUDGEMENT ------------------------------------------------------------------------------------------- This is an appeal against the Judgment of the Circuit Court, Anyinam in the Eastern Region dated the 23rd day of March 2022. The court was presided over by His Honour Franklin Titus–Glover. The Appellant was charged with two counts before the trial court. These are as follows: [a] Causing Harm contrary to section 69 of Act 29. 2 (b) Indecent Assault, contrary to section 103[2] of Act 29 On 23/3/2022, the Appellant pleaded guilty on both counts. He was convicted on his own plea and sentenced as below: Count 1- „Accused person is sentenced to 60 months [IHL] Count 2- „Accused person is sentenced to 36 months [IHL] „The sentences are to run concurrently‟. It is the sentence of the Appellant that has given birth to this appeal. The law is settled that, an appeal be it civil or criminal is by way of rehearing. This means, the appellate court is entitled to examine or review the entire record of proceedings including the judgment, decision or the order appealed against. After the review, the appellate court has the power to make its findings or come to a different conclusion from the trial court. See: • Apaloo V. The Republic [1975] 1 GLR 156 CA • Tuakwa V. Bosom [2001-2002] SCGLR 61 • Dexter Jonson V. The Republic [2011] 2 SCGLR 601 • Henry Kwaku Owusu V. The Republic [2016] 98 GMJ 95 SC The meaning of the above statement that an appeal is by way of rehearing in criminal cases was stated by Dotse JSC in the Dexter Johnson case (supra) on pages 669-670 as follows “What is therefore meant by an appeal being by way of rehearing is that, the appellate court has powers to either maintain the conviction and the sentence or set it aside and acquit and discharge or increase the sentence”. I fully endorse this position in this judgment which I cannot depart from by way of the principle of stare decisis. It therefore behoves on this court to consider in its entirety the appeal records before me and substitute this court as the trial court. See Henry Kwaku Owusu V. The Republic (2016) DLSC 2882. SUMMARY OF FACTS : 3 Complainant is a farmer living at Saamang near Osino and a grandfather to the victim whilst the Appellant is also a farmer also living at Juaso. Victim is a 22 year woman, a seamstress apprentice co-habiting with the Appellant. On 7/03/2022, Appellant removed his SIM card from his phone and gave it to the victim to use. On 10/3/2022, Appellant took his mobile phone back and slotted his SIM card back but realized there were some audio voice recordings on the phone hence played and listened to them. To his dismay, the voice recordings were conversation between the victim and her ex-boyfriend and the victim was informing him that, he does not love the Appellant but only staying with him because of the favour he was rendering to her and planned meeting him at a hotel on 17/03/2022 to have fun of themselves. Appellant listening to these audios took offence. On reaching home that night, he had sexual intercourse with the victim and she fell into deep sleep naked. At dawn on Saturday 12/03/2022 whilst victim was still sleeping, he took an enema bulb syringe popularly called „bentoa‟ used same to drag some quantity of Dursban 4E, a chemical used to spray cocoa and injected it into the vagina of the victim. The victim suddenly woke up and saw the Appellant putting something in his pocket. Victim suspected something happening as she felt the scent of the chemical and some was draining out of her vagina. Victim questioned him what he has done to her and Appellant boldly told her that, he has realized she wants to go back to her ex-boyfriend so he wanted her vagina to rot. Victim reported the incident to the Complainant who rushed her to Hawa Memorial Hospital for treatment and arrested the Appellant to the police where a report was made. Police medical report form was issued for the victim to be examined, treated and get it endorsed. THE PRESENT APPEAL On the 4/3/24 Counsel for the Appellant was granted leave by this court to file the Petition of Appeal within 10 days. The Appeal was filed on 13/3/2024. The petition of Appeal contains the following grounds of Appeal: GROUND OF APPEAL: a. His Lordship should have thoroughly considered the repentant state of mind and heart of the appellant and reduce his sentence to the minimum. 4 b. His Lordship should have given weight to mitigation of sentence. c. The sentence of 5 years is excessive. From the above Grounds, there is no doubt that the gravamen of Counsel‟s Appeal is against the Sentence. Summary of the written submission of counsel for the Appellant: Counsel filed his written submission on the 26/4/2024. In his submission counsel argued that the Appellant had nothing to prove but to raise a reasonable doubt However, in this case the Appellant truncated the trial by pleading guilty to both counts. The days the accused spent in custody was not considered in passing the sentence contrary to Article 14[6] Counsel contended that the Appellant was remorseful. The Appellant has dependents and he is the bread winner. Besides, the appellant is a first time offender. ISSUE: The main issue for the determination by this court is whether or not the sentence meted out to the Appellant by the trial court is harsh and excessive. Addressing the issue: It should be noted that, counsel for the Appellant despite the fact that he set out three grounds of Appeal argued the Appeal together without any differentiation. In my view, this is because all the three grounds of Appeal border on the harshness or the excessiveness of the sentence. Before I go to the merits of the appeal, to refresh our minds, I wish to state the nature of the offences at stake? Section 69 of Act 29 Reads: “Causing Harm 5 A person who intentionally and unlawfully causes harm to any other person commits a second degree felony.” Section 103 [2] of Act 29 also reads: “A person who indecently assaults another person commits a misdemeanor and is liable on conviction to a term of imprisonment of not less than 6 months.” It should however be noted that, on the general rules for punishment as indicated in section 296 [2] of Act 30 states as follows: “a person charged with an offence which is a second Degree Felony can be liable for imprisonment for a term not exceeding 10 years except the offences listed in section 296 [5] of Act 30.” Section 296 [4] also states; “a person charged with an offence declared by an enactment to be a misdemeanor and the punishment for that offence is not specified a person can be convicted to a term of imprisonment not exceeding 3 years.” Now what should be a trial Judge‟s consideration in determining the Appropriate Punishment or sentence? In determining the length of a sentence, the factors which the trial judge is entitled to consider are: [a] The intrinsic seriousness of the offence; [b] The degree of revulsion felt by the law-abiding citizens of the society for the crime, [c] The premeditation with which the criminal plan was executed, [d] The prevalence of the crime within the locality where the offence took place, or in the country generally, [e] The sudden increase in the incidence of the particular crime, and [f] Mitigating or aggravating circumstances such as extreme youth good character and the violent manner in which the offence was committed. See Sakyi Vrs. The Republic [2010] 34 MLRG 188 C.A. pages [202-203] per Kusi Appiah J.A. 6 There are plethora of authorities that state that, the court in imposing sentences has a duty to consider the entirety of the case to identify circumstances that are present. Of course, the trial court is under a legal obligation to balance both the aggravating and mitigating factors before imposing a sentence. To see some of these aggravating factors listed above, the case of Kwashi v. The Republic [ 1971] GLR 488 will be a good reference point. On the flip side, mitigating factors could include the age of the offender, whether he is a first offender, character, inter alia. For some, the court must strike that imperative balance between these two factors to arrive at a reasonable sentence. Realistically speaking, the fact that a convict is a first offender does not necessarily guarantee him a light sentence. For example, if a convict intentionally causes serious harm and is found guilty, it will be unconscionable for the court to let him go free or give him a light sentence because he is a first offender. The court thinks that, such is not the idea behind the mitigating factor being a first offender because despite being a first offender, the court must indeed look at the three; the offence, the offender, and the society at large. It is also worthy of note at this point to consider the Modus Operandi, the way the crime was hatched and perfected. All these would determine whether the court would consider the convict as a first offender and therefore deserving of mercy. To be factored into all these considerations will also be the gravity of the crime committed and the incidence of its commission (whether it is on the increase) and the revulsion of society of that crime for example illegal mining [galamsey] in Ghana. Taking a cue from judicial precedent on this issue, the court held in Adu Boahene v. The Republic [1972] 1 GLR 70 that, where the court found an offence to be very grave, it must not only impose a punitive sentence but allow a deterrent or exemplary one so as to indicate the disapproval of society of that offence, and so for example, if an armed robber points a gun at the victim in the night at the comfort of his home, rapes ladies in the house and the armed robber is arrested and convicted, it would be perplexing should the court say he is a first offender and so deserved lenient punishment. What the court will take into 7 consideration is whether such verdict would satisfy the society such that, they will report a crime instead of taking the law into their hands. Also, the court must strike a balance between these aggravating and mitigating factors especially if the ground of appeal is that, the person is a first offender. However if the crime is premeditated and violently committed by the convict, then obviously, he has divested himself of any lenient consideration. Bringing all these considerations to bear in the instant appeal, the records do not show that the appellant is known. In fact there is nothing on record to show that the Appellant was given the opportunity to make a prayer for mitigation of sentence. There is also no indication that the appellant was represented at the trial. There is nothing on record to show that the trial court actually considered any aggravating and mitigating factors in arriving at his decision of 60 months on count one and 36 months on count 2 to run concurrently. In the face of the record, the age of the Appellant was given as 29 years. Since there is no indication that he is known on record, I presume that the Appellant is a first time offender and also a young man who has shown remorse as a result of the crime he committed hence his early Plea of Guilty, but was convicted and sentenced to 60 months on count 1 and 36 months on count 2 IHL to run concurrently. There is no doubt that the circuit judge acted within the ambit of the law in imposing that custodial sentence of 60 Months IHL and 36 months IHL on counts 1 and 2 respectively to run concurrently. However, the trial judge did not give reasons for the imposition of the said sentence. He did not consider aggravating and mitigating factors listed earlier before the imposition of the sentence. Besides, I see nothing on record to show that the Appellant was in custody for some time before the conviction and sentence and therefore I am unable to apply Article 14 [6] of the 1992 Constitution to factor in any period he might have spent in custody. Counsel for the 8 Appellant was also not helpful to the court by indicating how many days or months the Appellant in fact spent in custody, which was not factored in the sentence. There is nothing on record to show that mitigating factor such as the appellant being a bread winner of his family was brought to the attention of the court below. In fact, the appellant was not represented at the trial, and so the trial judge should have invited him to make a pre- sentencing statement after conviction, but this was not adhered to. At page 420 of Criminal Procedure and Practice in Ghana 3rd Edition, Justice Dennis Dominic Adjei noted that, “a court seeking to do justice to the parties in a case shall receive evidence from the parties to inform itself to enable it pass the appropriate sentence. This is to avoid serious miscarriage of justice.” I must reiterate that in this Appeal, the trial Court did not invite the accused person now the Appellant to make a pre-sentencing statement after his conviction. Perusing through the record, this court has noted an aggravating factor such as the convict being in a position of trust and breaching that trust by committing the offence when the victim was sleeping in his bed, after he had engaged in sexual intercourse with her. In spite of the aggravating factor noted above, I will consider the accused/ Appellant youthful age of 29 years. It should be noted that there is nothing on record to show that, he is known and so I will consider the appellant as a First-time offender. I will also consider his early plea of guilty as another mitigating factor and set aside the sentence of 60 months IHL on count one and 36 months IHL on count 2 to run concurrently and substitute it with a sentence of 40 months IHL on Count 1 and 24 months on count 2 to run concurrently. The sentences are to take effect from the date of his conviction. The appeal therefore succeeds. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE 9