ABARIE VRS. REPUBLIC (CR/0284/2024) [2024] GHAHC 259 (31 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON WEDNESDAY, 31ST DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT CASE NO.: CR/0284/2024 IBRAHIM ABARIE @ AYIREBO VRS. THE REPUBLIC ========================================================================== JUDGMENT ========================================================================== This is a judgment hinging on a Petition of Appeal filed on the 30th April 2024 on behalf of the above-named Appellant who was the 2nd Accused person at the trial Court. The appeal was filed pursuant to leave granted by the High Court on the 28th March 2024. The Appeal was against the sentence on two (2) counts of Conspiracy to commit crime, namely Robbery and Robbery. The Appellant was on the 9th April 2019 convicted by the Circuit Court ‘1’, Accra then presided over by His Honour Mr. Aboagye Tandoh to eighteen (18) years IHL on each count to run concurrently. THE GROUNDS OF APPEAL The grounds of appeal were stated as follows: Page 1 of 13 1. That the Appellant has really learnt his lessons over the period of time served in incarceration under the harsh and severe conditions in detention and have vowed never to engage in any criminal activity again The further grounds of appeal filed were the following: 2. That the sentence imposed on the Appellant is harsh and excessive considering the fact that the Appellant is a first-time offender who was unrepresented; illiterate and unskilled in law, his potential to have a meaningful defence either by way of countering a conviction and sentenced is limited. He therefore pleads with your Lordship to kindly consider the negative and psychological effects of long incarceration and commute his sentence to the barest minimum. 3. That the Appellant with a remorseful heart humbly prays for the Court’s prerogative of mercy taking into account the Appellant’s efforts towards reformation and reintegration. 4. That the Appellant, a victim of an unfortunate circumstance has truly learnt valuable lessons and vows to stay away from deviant behaviors and characters. 5. The Appellant is pleading with your Lordship to consider his efforts in enhancing his rehabilitation to tender age at which the offence was committed and kindly reduce the sentence to the barest minimum to allow him pursue a future of productivity contributing his quarter to Ghana’s development. THE FACTS OF THE CASE AND TRIAL OF THE APPELLANT The Complainant is a trader and operates a provision store at Nungua. The Accused person on the 12th December, 2017 at about 9:00pm planned to go on a robbery expedition. According to the Complainant, the 1st Accused who is a Police officer, 2nd Accused hereinafter referred to as the Appellant got down from the car and entered her provision store and the 3rd Accused person stood behind the car spying. Page 2 of 13 The Complainant indicated that Policemen usually come to the shop to purchase things for their night duties. So, upon seeing the 1st Accused, she thought it was one of those days where the Policemen came to buy from her shop. The Appellant and the 1st Accused were armed with guns and gave a warning shot. They then asked the Complainant for her money and made away with cash of Forty-five Thousand Ghana cedis (GHC45,000.00) and One Thousand United States dollars ($1,000) in a container. The 4th Accused who was their driver sped off when the other Accused persons entered the car. The Appellant and his co-accused were however arrested on that same day at a Police Check point at Abattoir close to the Motorway, Community 20, Tema. An amount of Nineteen Thousand Nine Hundred and Forty-two Ghana Cedis (GH¢19,942.00) and Six Hundred United State Dollars ($600). At trial, the Accused persons pleaded not guilty to both counts of Conspiracy to Rob and Robbery. After a full trial, the Appellant was convicted and sentenced to a term of eighteen (18) years imprisonment IHL, both counts to run concurrently. THE WRITTEN SUBMISSION AND ARGUMENTS IN SUPPORT. The submission on behalf of the Appellant was filed on the 24th June 2024. By way of mitigation, counsel for the Appellant argued that the Appellant was twenty-six (26) years at the time of crime as such was a young offender. He argues that where an Accused is a first-time offender, the outlook of the law is that he should be punished without destroying the moral tenderness of a first offender. Counsel refers to the cases of DONKOH VS. THE STATE (1967) GLR 280-282 and HARUNA VS. THE REPUBLIC (1980) GLR 189-192. Page 3 of 13 It was further submitted that some good money was recovered from the money the Complainant lost. However, no one was injured at the complainant’s store. Counsel argues that the minimum sentence for Robbery under the Criminal Offences, 1960 (Act 29), as Amended by Act 646 that: “Whoever commits Robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on 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 (15) years.” Counsel prays that since the Appellant is a first-time offender and no injured cause and part of the money retrieved, the minimum would still serve the purpose of inducing reformation, as a result of penance and suffering at Nsawam Prisons and that should be adequate for his ultimate rehabilitation with civil society. WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT. The Republic hereinafter referred to as the Respondent filed its Written Submission through a learned Senior State Attorney, Vivian Kwayisibea Osei-Tutu (Mrs.) on the 5th June 2024. In her submission, the learned Attorney argued the 1st, 2nd, 3rd and 4th grounds of appeal as one by first acknowledging the discretion of the Court to inflict sentence as long as it falls within the Statutory limit imposed by the law on the Court. Counsel relies on the cases of ROBERTSON VS. THE REPUBLIC (2015) 80 GMJ 33 SC and KAMIL VS. THE REPUBLIC (2011) 1SCGLR 300 Counsel further submits relying on the case of KWAKU FRIMPONG VS. THE REPUBLIC (2017) 113 GMJ@ 234 where the Court of Appeal held among other things Page 4 of 13 that the Appellant may be remorseful but that in itself is not sufficient ground to reduce a sentence. As was held in the case of APALOO & ORS VS. THE REPUBLIC (1975) 1 GLR that: “the Court would interfere only when it was of the opinion that the sentence was manifestly excessive having regard to the circumstance of the case, or that the sentence was wrong in principle. That the Appellant’s ground that he has regretted his actions and therefore is remorseful is not a sufficient ground for the Court to reduce a sentence.” It was further submitted in respect to the 5th ground relying on the case of KWASHIE VS. THE REPUBLIC (1971) 1 GLR 488 @ 493 that the learned trial judge in imposing the sentence of eighteen (18) years for count 1 and eighteen (18) years for count two on the Appellant, exercised his discretion in accordance with the law. The Respondent submits that having regard to the circumstance of the case, the prevalence of robbery in this country, the sentence is adequate and commensurate with the offence and that this Honorable Court should not disturb the sentence imposed on the Appellant by the Circuit Court APPEAL BY WAY OF REHEARING It is a settled principle of law, that an Appeal is a creature of statute and as such the right to appeal at any stage of a trial, whether criminal or civil, is all governed by law. Under the Criminal Procedure Act, 1960 (Act 30), the right to appeal to the High Court in a criminal case from a lower Court is provided for by Section 324 as well as under Section 44 (2) of the Courts (Amendment) Act 2002 (Act 620). An appeal is also said to be by way of rehearing. This means that the Appellate Court or body is to examine the entire proceedings or decision that is the subject of the Page 5 of 13 appeal to determine whether the decision can be supported in law or in fact or both. Numerous case law supports this principle that is relevant to both civil and criminal appeals. See cases such as DEXTER JOHNSON VS. THE REPUBLIC (2011) SCGLR 601 NAGODE VS. THE REPUBLIC (2011) SCGLR 975 AMANKWAH VS. THE REPUBLIC (J3/04/2019) (2021) GHASC 27 DATED 21ST JULY 2021. In AMANKWAH supra, the Supreme Court through Dotse JSC explained the concept as pertains to criminal trials inter alia: “…applying the above principle in a criminal appeal might result in the Court embarking upon the following, to analyze the entire Record of Appeal and this must include the Charge Sheet, the Bill of Indictment (where applicable), the witness statements of all witnesses, all documents and exhibits tendered and relied on during the trial, as well as the evidence during testimony and cross examination.” APPEAL ALLOWED ONLY ON SUBSTANTIAL MISCARRIAGE OF JUSTICE By way of statutes, the Courts Act (NRCD 323) regulates the conduct of criminal appeals by its Section 31 when it states: “(1) subject to subsection (2) of this section, an Appellate Court in hearing any appeal before it in a criminal case, shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question Page 6 of 13 ought to be set aside on the ground of wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case, shall dismiss the appeal. (2) the Court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or the point raised in the appeal consists of a technicality or procedural error or a defect in the charge sheet or indictment but there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the caused could have been convicted upon that charge or indictment.” THE APPEAL AGAINST SENTENCE I have considered the submissions filed by both counsel for the Republic and Appellant. I have also considered the facts and circumstances of this case, especially the fact that the Appellant was not represented at the trial. It is obvious that his petition of appeal as filed with the help of the “Prison Teacher” and the appeal is only against sentence. It has been decided severally that an appeal against sentence only means that the Appellant did accept, that they were rightly convicted, especially when the Appellant pleaded not guilty. This principle is enunciated in cases including the ones below: FIIFI KOFI ADU VS. THE REPUBLIC (2015) JELR 63662 C.A FORSON VS. THE REPUBLIC (1975) JELR 66385 HC TAYLOR J. DARKRUGU VS. THE REPUBLIC (1989-1999) 1 GLR 308 Page 7 of 13 ATTA BONSU AND ANOTHER VS. THE REPUBLIC (2018) JELR 66461, CA However, it is also the principle that an Appellate Court can interfere with a conviction which it deems wrong in law or not borne out of the facts and set it aside notwithstanding the fact that the appeal was not against conviction. It was stated in FORSON VS. THE REPUBLIC (supra), Taylor J (as he then was) thus: “It is my opinion that an appeal against sentence where the conviction is not being challenged as in this case necessarily implies that the conviction is prima facie in order. However, if the conviction is not in fact in order it cannot support a sentence and in such a case the sentence is set aside as it ought to be and with it gives the conviction” THE ANALYSIS BY THE COURT I share the view of the counsel for the Respondent that the five (5) point grounds of appeal is nothing but one ground all bothering on reduction of sentence and I will go ahead and decide on it as such. In a Criminal Appeal dealing especially with sentencing, it has been determined severally as submitted by the counsel for the Respondent that an Appellate Court must not disturb the sentence of a trial Court which had the discretionary power of sentencing provided the sentence fell within the maximum permitted by law, and the trial Court considered mitigating factors as well as aggravating factors. See cases such as BANDA VS. THE REPUBLIC (19750) 1 GLR 152 SAMUEL AGOE MILLS ROBERTSON VS. THE REPUBLIC (2013-2014) SCGLR 1505, SC An Appellate Court, is therefore on appeal, by way of rehearing to consider whether the sentence meted out was manifestly excessive or low having regard to the law and sentencing guidelines, and to consider if the sentence was wrong in law or fact. Page 8 of 13 Considering that sentence was wrong in fact, an Appellate Court is to consider both aggravating and mitigating factors available to it and may interfere with the sentences if there is evidence that the trial Court failed to make the necessary considerations. The argument by counsel for the Appellant that he was 26 years at the time of the offence and a young offender is not borne out nor supported by any known law. Unless of course the term “young offender” is being used loosely as an ordinary English word and not a legal term. The Juvenile Justice Act is the relevant statute to determine this leg of the appeal. I will therefore make reference to the under listed Court of appeal cases which does justice to the issue of who is a young offender. These are the cases of ABU MOHAMMED VS. THE REPUBLIC (2018) JELR 63851 CA And in the most recent case of NELSON MAKAFUI FAIKPUI VS. THE REPUBLIC, CRIM APP. NO. H2/ 01/ 2022, DATED 11TH MARCH 2022, the Court of Appeal reemphasized this point by quoting the different definitions of young offender, young person, juvenile offender and Juvenile under the interpretation section of the Juvenile Justice Act as follows: “A young person, means a person who is eighteen (18) years or above but is under twenty-one years. Juvenile under Section 60 is defined as person who is under the age of eighteen (18) years who is in conflict with the law. Young offender means a juvenile who has been convicted of an offence for which the Court has power to impose a sentence of imprisonment of one month or upwards with the option of a fine. Page 9 of 13 A juvenile offender is also defined as a juvenile who has been convicted of an offence for which the Court may impose a sentence of imprisonment for one month or more without the option of a fine.” The Court went ahead to state that the distinction between “a young offender” and “juvenile offender” is by age and power of the Court to impose sentence. With the Courts having power to impose a sentence of one month or more with a fine in the case of a “young offender” and without a fine in the case of a “Juvenile offender” the Court went on and held that: “the offence for which the Appellants were convicted does not provide for the option of a fine, the Appellants cannot be categorized as young offender within the determination of same in the Juvenile Justice Act.” It was further put across in that case that: “the Appellant was 19 year at the time of the offence. The offence was committed with the use of an offensive weapon which was a gun and a knife. He was charged and convicted in the Circuit Court for the offence of robbery. Robbery is a first degree felony offence and by Section 149 of Act 29, as amended… The offence for which the Appellant was convicted does not provide for the option of a fine or imprisonment. The Appellant cannot be categorized as a young offender within the definition of same in the Juvenile Justice Act. Appellant was appropriately charged and tried under the Criminal Offence Act, 1960 (Act 29) as amended. The enactment which created the offence of Robbery provided the minimum sentence for the offence, and the Court has no power to impose a lesser term” Clearly this case has so much in common with the case in issue. If 19 years cannot be a mitigating age in the offence of Robbery, then the age of 26 years can obviously not be a mitigating factor for a Court to consider by way of mitigation. This is especially so when the offence was committed with the use of offensive weapon as in this case. Page 10 of 13 On the argument that some part of the robbed items were retrieved, I will not contest that. From the Record of Appeal, it is factual that about Sixteen Thousand out of the GHC45,000.00 as well as $600 out of a $1000.00 were retrieved from the Appellant and his co-accused not long after the attack. This can serve as a factor of mitigation. However, it is not always so. The entire facts and evidence must be considered. This robbery occurred in a commercial shop and with such a venture, every pesewa is important and to be accounted for as loss of this monies can either be monies for the payment of stocks, profit or even monies meant to be repaid to a creditor. This act of the Appellant and his gang has not only deprived the owner of money but also tend to affect the operation of the shop due to their finances being affected or fear for the life and future safety of persons in this shop in the operations of the shop which will affect the shop negatively. This is not a situation where the Appellant and co-accused even brought back the said monies voluntarily, the Police had to pursue them to retrieve same and I must confirm that the amount realized was less than half of what was robbed. I cannot agree more with counsel for the Respondent that the trial Court did make all the necessary considerations before sentencing the Appellant. The learned State Attorney has aptly argued in response to the submission by the Appellant’s counsel that he has been remorseful after the incident. The fact that the Appellant may be remorseful will in itself not be sufficient ground to reduce a sentence. She makes reference to the case of APALOO & ORS VS. THE REPUBLIC (1975) 1 GLR that the Court would interfere only when it was of the opinion that the sentence was manifestly excessive having regard to the circumstance of the case, or that the sentence was wrong in principle. I will however state that this case does not support the point raised, that is mitigation on grounds of show of remorse by an Accused. Page 11 of 13 In the case of FRIMPONG @ IBOMAN VS. THE REPUBLIC (2015) GHASC 106 the point is reiterated that one cannot argue on grounds of good character or show of remorse without any “solid and concrete evidence of good character about the Appellant, on record, save the fact that he was not known by Police records.” The Court went further to state that regarding the sentencing in the case, Act 646 provides for only minimum sentence or the maximum sentence that can be imposed on a convict for robbery conviction. The trial Court is therefore to use his discretion to give out the appropriate sentence. Such a Court is enjoined to take into consideration the mitigating and aggravating factors and the seriousness of the offence. In the circumstances of this case, the manner in which the offence was committed shows a great degree of premeditation and planning. The use of weapons and the degree of fear that was put in the lives of persons in the shop that night at 9pm by the firing of warning shot is aggravating enough. It is such fear that can lead to the sudden death of a person. The trial Court was guided by the case of ABU & ORS VS. THE REPUBLIC (1980) GLR 2942-302 where Taylor J. as he then was stated that: “in determining sentence for group crimes like conspiracy to steal and stealing, the sentence on individual members ought to reflect each part played; those who placed a major role should receive more punishment and vice versa. Also to be considered was the part played by each Appellant, the fact that they were first time offenders, the nature of the offence, the value of the property, the degree of aggravation and planning and the part played by each in the organization and planning” The trial Court rightly considered the fact that the Appellant was a first-time offender and also considered the time spent in custody which is a Constitutional consideration to be made by every trial Court before sentencing as long as the Convict was in lawful Page 12 of 13 custody before the conviction. Apart from these, I do not see any other mitigating factor that could enure to the benefit of the Appellant. In the circumstance, the appeal cannot see the light of day, it is refused and accordingly dismissed. JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: AHUMAH OCANSEY FOR THE APPELLANT VIVIAN OSEI-TUTU (SENIOR STATE ATTORNEY) FOR THE REPUBLIC/RESPONDENT Page 13 of 13