MAAMAH VRS. REPUBLIC (CR/0121/2024) [2024] GHAHC 280 (24 July 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 24TH DAY OF JULY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0121/2024 RAPHAEL MAAMAH @ TEMA BOY APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant/A1 herein and one Solomon Annum/A2 were charged with the offence of conspiracy to commit the offence of robbery and robbery contrary to Sections 23(1) and 149 of the Criminal Offences Act 1960 Act 29 and were arraigned before the Accra Circuit Court on the 16th of December 2020. The accused persons pleaded not guilty to the offences after same was read and explained to them in the GA language. After a full trial, the accused persons were on the 10th of February 2022 found guilty, convicted and sentenced to fifteen (15) years IHL on both count one and count two and the sentences were to run concurrently. It is against this judgment that the appellant filed the instant appeal on the 22nd of December 2023 pursuant to leave granted by the 1 High Court on the 7th of December 2023 praying for the conviction of the A1/Appellant to be set aside. GROUNDS OF APPEAL The grounds of appeal filed are that: a. That the conviction cannot be supported having regard to the evidence b. That the learned trial judge erred in law when she admitted the A1/Appellant’s caution statement without first investigating whether he made it or not. c. That the learned trial judge erred in law in basing the Appellant’s conviction mainly on alleged inconsistencies in the Appellant’s disputed statements. d. That the learned trial judge erred in her judgment when she relied on a flawed identification of the A1/Appellant leading to an improper finding of fact against the 1st Accused/Appellant. e. That the learned trial judge failed to consider fully the defence of the 1st Accused/Appellant. The appellant indicated that additional grounds of appeal would be filed upon receipt of the record. Upon receipt of the record, the Appellant filed notice of additional ground of appeal pursuant to leave of court. The additional ground of appeal is that “that the trial judge erred in law by not ordering a mini-trial to determine the admissibility or otherwise of the investigation caution statement of the 1st Accused/appellant when the 1st accused/appellant objected to its admissibility.” FACTS OF THE CASE 2 According to the prosecution the complainant Kester Anderson is a professional driver and works with the bolt transport services and resides at Community 11, Tema. Al Raphael Maamah alias Tema-boy is unemployed, A2 Solomon Annum alias Container Money is a trader. Both accused persons are residents of Teshie Maami. On 29/11/2020 at about 11:05 pm complainant whiles working received an order from accused persons at Teshie Agblezaa to Salem Square. Complainant drove to the pickup point, Agblezaa bus stop and picked the two accused persons and was instructed by accused persons to use the Lekma hospital road through Teshie Mobile to Lascala and finally to Salem Square. On reaching Salem Square accused persons asked complainant to park for them to alight, that in the process Al Raphael Maamah alias Tema-boy who was sitting at the back seat behind the complainant quickly smeared powdered pepper into complainant's face to overcome his resistance while A2 Solomon Annum who was also sitting at the front seat forcibly took complainant's Techno Camon-11 mobile phone valued eight hundred Ghana Cedis (Gh¢800.00) and they both bolted. Complainant shouted for help and some ladies came to his aid by providing him with water to wash his face. A case was lodged with the Teshie Police and in the cause of investigations bolt transport office provided the Police with the mobile number used in ordering the service of complainant on the day of incident. Al Raphael Maamah @ Tema-boy was arrested for investigations and he mentioned A2 Solomon Annum alias Container Money as the one who committed the offence with his mobile number. On 05/01/2021 A2 was also arrested from his hideout for investigations. They were later charged with the offences and arraigned before court. The court gave orders for the filing of written submissions and on the 10th of July 2024, Counsel for the appellant filed his written submissions and on the 23rd of July 2024, the learned State Attorney for the Republic/Respondent also filed his written submissions. 3 SUBMISSIONS OF COUNSEL FOR APPELLANT The counsel for the appellant submitted that the failure of the police investigator to conduct an identification parade occasioned a grave miscarriage of justice. He opined that since the victim had not known the appellant for a considerable period of time prior to the incident in question then the appellant did not fall within the category of an ascertained person within the meaning of the law. He submitted further that the only time the PW1 commented on the physical characteristics of his assailants was after each accused person had been arrested by the police and presented before him. He stated that this does not constitute proof as the victim looked at the appellant and then merely mentioned the physical attributes the appellant possessed while he was standing in front of him. He added that the failure of the trial judge to conduct a mini trial when objections had been made against them occasioned a miscarriage of justice. He submitted that the trial judge erred in law in admitting and or relying on the purported statement of the appellant when the appellant in the absence of his counsel denied the content or authorship of the statement and also the trial judge failed to rule on the objection raised by the appellant. He added further that the trial judge erred in law in basing the conviction on the alleged inconsistencies in the appellant’s disputed statements. He submitted finally that on the totality of the evidence, the prosecution did not only fail to prove the guilt of the appellant beyond reasonable doubt, but also that the trial court did not adequately consider the defence of the appellant. SUBMISSIONS OF THE REPUBLIC/RESPONDENT 4 The learned State Attorney submitted that at the trial, the complainant identified the appellant to the Police as the culprit who committed the offence against him and also under oath maintained his testimony that the appellant was the one who robbed him on that day and therefore submitted that the prosecution was able to establish the identity of the appellant as the one who committed the offence. With regards to the admission of the caution statements of the appellant, he opined that the said statements were not confession statements thus requiring the trial judge to conduct a mini trial. He concluded that sufficient and adequate evidence was adduced by the prosecution during the trial to prove all the essential elements of the offence proffered against the appellant and prayed the court to dismiss the appeal as same has no merit. DETERMINATION OF THE GROUNDS OF APPEAL GROUND B AND ADDITIONAL GROUND FILED: That the learned trial judge erred in law when she admitted the A1/Appellant’s caution statement without first investigating whether he made it or not AND that the trial judge erred in law by not ordering a mini-trial to determine the admissibility or otherwise of the investigation caution statement of the 1st Accused/appellant when the 1st accused/appellant objected to its admissibility.” At the trial, when the accused persons were asked if they had any objection to the admissibility of the statements, A1 the appellant herein stated that “My caution statement is a not a true reflection of what I said. After he took our statements, he brought another statement for us to thumbprint after three weeks”. A2 also stated the same. It should be noted that its not every objection to a statement obtained from an accused person while restricted or detained that calls for the court to conduct a mini trial. In the case of Asare 5 alias Fanti vrs The State (1964) GLR 70 SC Ollennu J.S.C. delivering the judgment of the court said: “Where an objection is raised against the tendering of a statement alleged to have been made by an accused person, evidence will be heard only when the accused alleges that no statement was made at all, or that the statement was made under duress. But when objection is raised against such a statement on the ground of inaccuracy, its admissibility becomes a question of law for the judge and the weight to be attached to it is a question of fact for the jury, and it must therefore first be admitted before it can be evaluated.” Justice S.A Brobbey in his book “Practice in the Trial Courts and Tribunals of Ghana 2nd Edition page 114 stated that “It is, however, not every objection to any statement which will give rise to a mini trial. In Asare alias Fanti v The State [1964] GLR 70, SC, it was held that where an objection was raised against the tendering of a statement alleged to have been made by an accused person, evidence would be heard only when the accused alleges that no statement was made at all, or that the statement was made under duress. But when an objection is raised against such a statement on the ground of inaccuracy, its admissibility becomes a question of law for the judge and the weight to be attached to it becomes a question of fact for the jury. The statement must, therefore, first be admitted before it can be evaluated. In that case, the objection to the statement was to the effect that "it was in a large measure not what the defendant told the police who took it down." The Supreme Court held that the objection related to the contents of the statement and it had to be admitted first before it could be subsequently evaluated. The court held further at 74 that: "The admissibility of the statement is one thing, the weight to be attached to its contents is quite a different thing." The objection raised by the appellant was with regards to the contents of the statement and the trial judge was right in admitting it for the accused/appellant to cross examine for the court to know the weight to put on the statements. 6 It is further contended by Counsel for the appellant that the trial judge failed to rule on the objection raised contrary to the rule of procedure. In as much as the trial judge failed to rule on the objection raised, she proceeded to admit the statements as per the requirements of the law. The failure to rule on the said objection raised has not occasioned any miscarriage of justice against the appellant. The proper procedure upon such an objection being raised was to admit the statements and decide the weight to put on the statements which she rightly did. This ground of appeal therefore fails and same is dismissed. GROUND A: That the conviction cannot be supported having regard to the evidence THE LAW ON CONSPIRACY TO COMMIT ROBBERY AND ITS APPLICATION TO THE EVIDENCE LED Section 23(1) 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.” In the case of Francis Yirenkyi vrs the Republic (Criminal Appeal No. J3/7/2015) the Supreme court stated among others that: “The effect of the Revised Edition Act, 1998 (Act 562) on the definition of the conspiracy came into focus. Whereas the old formulation in Section 23(1) of Act 29 required two or more persons to agree or act together for a common purpose, the new formulation requires them to agree to act together for a common purpose…and this new formulation in Section 23(1) of Act 29 is the law on conspiracy in Ghana…” 7 His Lordship Dennis Dominic Adjei in his book Contemporary Criminal Law in Ghana at page 89 in deliberating on the definition of the offence of conspiracy to commit crime stated thus “At present, any charge of conspiracy must indicate that the persons who have been charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and does not matter whether there was or without a previous concert or deliberation to commit an offence or abet the criminal offence” In the case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2017-2016] SCGLR 444 Yaw Appau JSC stated on conspiracy under the current Ghanaian law as follows: “From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime… However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. It is provided in Section 149 of Act 29/60 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 the offence is committed by the use of an 8 offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” Section 150 Act 29 defines Robbery as: “A person who steals a thing commits robbery (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing For the prosecution to succeed in a charge of robbery, they have to prove that in stealing the thing the accused persons herein used force or harm to the victim for the purpose of stealing and the accused persons had the intent to overcome the resistance of the victim or any other person to the stealing of the thing. In the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 His Lordship Dotse JSC stated thus: For the offence of conspiracy to rob, the prosecution must prove “. Agreement to commit the unlawful act of robbery – acting for a common design. There need not be any prior deliberation. ii. Intention on their part to commit that unlawful act – this was manifested in their common pursuit of the robbery agenda. PW1 testified in his witness statement and stated that on the 29th of November 2020 at about 11:10pm, he was in charge of his Nissan Sentra private car with registration number WR 1691-12 working as a Bolt driver when he received an order from a phone 9 number 0263371729 with the name Ashitey James requesting his services from Teshie Agblezaa bus stop to Teshie Salem Square. He said that he picked up the Appellant herein and the A2, with A1 sitting at the back seat and the A2 in the front passenger seat. He said that when he got to the destination, the accused persons asked him to park in front of a container for them to alight and as soon as he parked, the appellant herein smeared powdered pepper on his face while the A2 took his Techno Camon-11 mobile phone valued GHC800 and they bolted with same. PW2 the police investigator testified that when he received the complaint, he prepared a police extract exhibit B to the Bolt Transport services for assistance. He stated that he received the trip information together with the trip map from Bolt indicating the contact that was used to order the services of the complainant on the day of the incident and same was admitted as exhibit C. He added that he called the contact that was used to order the ride and the A1 picked up and he arranged to meet him which he did and he caused his arrest. He also admitted into evidence pictures of the car with the powdered pepper smeared in it as exhibits A, A1 and A2. The evidence of the prosecution led is that for the purpose of stealing the mobile phone of the victim PW1, the A1/Appellant herein who was seated at the back of the vehicle smeared powdered peppered into the face of the PW1 which disabled him momentarily while the A2 proceeded to take the phone of the PW1 without his consent. The evidence of the prosecution is that the smearing of the powdered pepper in the face of the complainant was the harm caused to the victim for the purpose of stealing and the accused persons had the intent to overcome the resistance of the victim or any other person to the stealing of the thing. Per Section 1 of the Criminal Offence Act 1960 Act 29, Harm in law, means “any bodily hurt, disease, whether permanent or temporary” According to the PW1, he was blinded momentarily by the powdered pepper and it was some women around who gave him water to wash his eyes before he could drive to the police station. 10 The case of the Appellant and A2 at the trial was that if the Complainant was robbed, they are not the ones who did so. The case of the appellant herein is that the phone number that was used to order the ride is his but he purchased same from the A2 three days before his arrest. In his witness statement filed which he relied on as his evidence in chief, he testified that he knows the A2 in the neighbourhood as someone who sells sim cards, credit vouchers among other. He said that getting to the end of the year 2020, he bought the sim card from the A2 and at the time he bought it, the card had already been registered. He said that three days after the purchase of the sim card, he was sleeping at home when someone called him on the phone to ask him to come and mould blocks for him so he agreed to meet the person at Adinkpo in Teshie and when he went to the agreed meeting place, the police arrested him. The appellant herein at the trial having denied the offence, and presented the case of mistaken identity, then the evidence of the prosecution linking the accused persons or appellant to the crime must be strong and cogent. In a criminal trial the prosecution is obliged to lead evidence to identify the accused as the person who committed the crime for which he/she is charged, identification may take several forms. It may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics such as age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history including identities of mental qualities, habits and disposition. See IGNATIUS HOWE V THE REPUBLIC, CRIMINAL APPEAL, No J3/3/2013, 22ND MAY 2014 In the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his 11 identity than the evidence of a witness who swore to have seen the accused committing the offence. Also in Dogbe v R (1975) GLR 118, it was established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct or circumstantial evidence and other relevant facts from which the identity of the accused might be inferred by the court. As noted supra, the appellant anchored the totality of his appeal on the perceived error of mistaken identity. The bane of the counsel for the appellant is that this is a case of mistaken identity and as such an identification parade was key and the failure of the police to conduct same and the trial judge relying on the evidence of identification occasioned a miscarriage of justice against the appellant herein. In the case of IBRAHIM RAZAK & ANOR v. THE REPUBLIC [25/04/2012] CRIMINAL APPEAL NO. J3/6/2011 “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus where the ground of appeal bothers on mistaken identity, a trial or appellate court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the conditions in which the observation was made, whether or not the area or vicinity was lit to make the observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v Turnbull [1977] QB 224. The identification may take various forms. In 'Phipson on Evidence' (10th ed.) p 170 paragraph 1381, it is stated: 'When a party's identity with an ascertained person is in issue, it may be 12 proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, hand-writing, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.' see Adu Boahene v The Republic [1972] 1 GLR 70 at 74. Thus, it is fair and reasonable to say that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes. Another may be by proof of personal characteristics or peculiarities like the height of the person given by the oral evidence by prosecution witnesses on oath in court.” At the trial, the complainant described and identified the appellant and his accomplice by their hair style which was dreadlocks, and their heights. According to the PW2, the complainant was able to identify the appellant who he described as tall and had dreadlocks. In fact he was emphatic that the Appellant herein who sat at the back seat was taller than the A2. From the record, aside the complainant describing his assailants, the evidence on record points to no one than the appellant and his accomplice as the one who committed the offence. Per the story of the A1, he purchased the card three days before his arrest. The information from the Bolt Transport Service contained in exhibit B with the police extract indicates that the Bolt account information was created on the 26th of November 2020 three days before the incident occurred. Further to that, his caution statement dated the 11th of December 2020, he recounted to the police that it was rather the A2 who smeared the powdered pepper on the face of the PW1 and took his phone. He told the police that it was the sister of the A2 who gave him that information at 7:35pm. He added that it was a week after receiving that 13 information that he purchased the sim card from the A2. The next day, which was the 12th of December 2020, he gave a charge statement to the police exhibit E wherein he stated that one Oko Ghana informed him also that the A2 had poured powdered pepper on the face of the complainant and made away with his phone. He said that he got this information a week after he bought the sim card from the A2. In his further charge statement exhibit F, he told the police that A2 committed the offence with one Hanson who is at large at Salem Square. The burden on an accused person in a criminal trial is stated in Section 11 (3) of Act 323 which provides: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” I have considered the defence of the appellant and I find no truth in same. His assertion that the sister of A2 gave him that information and subsequently one Oko gave him the information that it was A2 who committed the offence and his further statement that the A2 committed the offence with one Hanson are all untruths. For instance how did he get the information that A2 committed the offence with the said Hanson? Also at the time that he claimed that he received the information from the sister of the A2, the offence had not been committed so he could not have received that information. His inconsistent statements to the police shows that he is not truthful. His untruthful nature is even portrayed in his objection during CMC where he does not raise the issue of torture and force but surprisingly raises that issue in his witness statement. His phone number was the number that was used to order the bolt ride and he has also exhibited knowledge of how the offence was committed, place and manner. It was therefore his duty to explain to the court how he was in possession of the number used in the 14 commission of the offence and also produce the said persons who gave him the said information. What he did when he got that opportunity was to deny his statements and rather state that he did not give that information to the police. The evidence on record shows that he is a good friend of the A2 and that is even why he failed to lead the police to where A2 could be found for him to be arrested. The trial judge rightly considered the defence of the appellant and it appears the nature of the defence did not impress the trial judge which led to the rejection of the defence. I am convinced from the record and I am left in no doubt that the trial judge properly assessed the evidence on the record and i do not see any reason to fault the assessment. The prosecution also at the trial proved its case beyond reasonable doubt. The evidence on record is clear that he conspired to rob the PW1 of his mobile phone. The identification of the A1 as the perpetrator of the offence was not flawed and the trial judge was right in relying on it to come to the conclusion that it was the A1 who conspired with the A2 to rob the PW1. The victim from the record spent some time in the vehicle with the appellant and the A2 from the moment that the victim picked them up from Teshie Agblezaa, all the way through the Lekma Hospital road through Teshie Mobile to Lascala and finally to Salem Square and as such he was able to have a good look at the appellant and as such identified him to the police. That apart, there was some form of communication between the victim and the appellant when the appellant and his accomplice instructed him on the route to use that is the Lekma Hospital Road which he did. Besides the vehicle was lighted enough which gave the accused persons the chance to see the mobile phone to enable the A2 to take it without the consent of the victim. I therefore find that the appellant conspired with the A2 to commit the offence of robbery. 15 With regards to count 2 which is the offence of robbery, the evidence on record is that it was the A2 who took the mobile phone at the moment that the A1/appellant smeared pepper in the face of the victim. Section 125 of the Criminal Offences Act 1960 Act 29 provides that: "A person steals if he dishonestly appropriates a thing of which he is not the owner." The essential elements of the offence of stealing are: "(1) That the person charged must have appropriated the thing allegedly stolen. (2) That the appropriation must have been dishonest. (3) That the person charged must not be the owner of the thing allegedly stolen." In a charge of robbery, the person accused must have used force or harm to the victim for the purpose of stealing and the accused person must possess the intent to overcome the resistance of the victim or any other person to the stealing of the thing. Criminal liability is personal and it is trite that a person can only be punished for an offence that he personally committed. In the case of Brobbey and others vrs the Republic (1982-83) GLR 608 where the accused persons had been charged with the offence of stealing and other offences, the court opined that “It is clear from the definition that a person cannot be guilty of stealing unless he is proved to have appropriated a thing in the first place. Where two or more persons are charged with stealing and evidence is adduced that they jointly acted in a certain manner to achieve a common object which constitutes a crime, great care must be taken, where they are not charged with conspiracy to commit that crime, to avoid the error of convicting them of the substantive offence without separate evidence to support it: see R. v. Akatia (1947) 12 W.A.C.A. 98. In the instant case, the appellants acted together for the common purpose of arresting the first prosecution witness to the police station. There was no act on their part from which an intent to steal could reasonably be inferred, much less actual stealing.” 16 The evidence on record does not indicate that the Appellant herein did take the phone. As noted supra, he rather agreed and acted together with the A2 to rob the mobile phone. I therefore find that A1 is not guilty of the offence of robbery and the trial judge erred in convicting him on the count of robbery. Ground A succeeds in part and on the same analysis ground C, D and E fails and same is dismissed. With regards to sentencing, the law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that 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.” Robbery on the other hand 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 is provided in Section 149 of Act 29/60 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 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.” 17 Section 206 (3) defines what an offensive weapon is: “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”. Per the above, then the appellant was liable to a sentence of 10 years and above as the powdered pepper cannot be construed as an offensive weapon according to the law. The trial judge considered the fact that the appellant is a first time offender and also the fact that he is in his youthful years. It is the view of this court that the trial judge should have proceeded to consider the value of the item robbed. It is the view of this court that the sentence of 15 years was harsh considering the entire circumstances of the case. I therefore set aside the sentence of fifteen (15) years for the offence of count one that is conspiracy to rob and substitute same with the sentence of 10 years. The conviction and sentence of fifteen (15) years for the offence of robbery is hereby set aside as I have found that same was not proved. The sentence of ten (10) years will commence on the 10th of February 2022 when the appellant was sentenced. MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: APPELLANT PRESENT COUNSEL: EBENEZER I.T NUBUOR FOR THE APPELLANT PRESENT 18 FREDERICK ADU GYAMFI FOR THE REPUBLIC/RESPONDENT PRESENT 19