ASANTE VRS REPUBLIC (CC16/041/2024) [2024] GHAHC 360 (19 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON FRIDAY THE 19TH DAY OF JULY 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. CC16/041/2024 KWAME ASANTE VS. THE REPUBLIC JUDGMENT Appellant present Republic absent Frempong Boamah appears for the Appellant holding Eric Opoku Brobbey’s brief INTRODUCTION On 6th October, 2022, A1 (Appellant) was convicted on two counts for the offence of Being on Premises for Unlawful Purpose Contrary to Section 155 of the Criminal Offences Act 1960 (Act 29) and Attempt to Commit Crime to wit: Stealing Contrary to Section 18 (1) and 124 (1) of the Criminal Offences Act 1960 (Act 29). He pleaded not guilty to the charges after full trial. He was sentenced to fourteen (14) years imprisonment with hard labour by his Honour Edward Twum Esq. Circuit Court Judge, Duayaw Nkwanta as he then was. Being aggrieved by the decision of the trial Court, the Appellant filed the present appeal in this Court on 27th November, 2023. 1 Grounds for Appeal a. That the judgment, conviction and sentence are improper since same are not supported by the evidence on record. b. That the sentence imposed is harsh, on the higher side and same was wrong and contrary to law. Reliefs sought On the face of the Petition of Appeal, the Appellant did not seek any relief. Charges Count 1 – Statement of Offence Being on Premises for Unlawful Purpose Contrary to the Criminal Offences Act, 1960 (Act 29) Particulars of Offence 1. Kwame Asante: Farmer, Aged: 44 years 2. Osei Kofi: Fitter, Aged: 14 years For that you on the 7th day of January 2022 at Susuanho in the Tano North Municipality and within the jurisdiction of this Court, were at the residence of Osei Yaw for unlawful purpose. Count 2 – Statement of Offence Attempt to Commit Crime to wit: Stealing Contrary to Sections 18 (1) and 124(1) of the Criminal Offences Act 1960 (Act 29). Particulars of Offence 1. Kwame Asante, Farmer, aged 44 years 2. Osei Kofi Fitter, aged 14 years 2 For that you on the 7th day of January 2022 at Susuanho in the Tano North Municipality and within the jurisdiction of this Court did attempt to steal a goat from the pen of Osei Yaw by using corn grains to trap the goat. Facts The Complainant lives at Susuanho, Duayaw Nkwanta and rears goats. Kwame Asante and Osei Kofi are father and son respectively. The Police received information from the Complainant on 7th November, 2022 at about 3:00am that the accused persons were arrested near his goat pen at Susuanho in an attempt to steal his goat with corn grains. On reaching Susuanho, the Police met the accused persons in the Complainant’s custody and some residents of Susuanho having been searched with eleven (11) grains of corn found in the Appellant’s pocket which he was using to trap the goat. They were handed over to the Police with the (11) grains of corn found on them. After investigations, they were charged with the offences and were arraigned in the Circuit Court, Duayaw Nkwanta. Plea The Appellant pleaded not guilty to both counts 1 and 2. The 2nd accused person pleaded not guilty to both counts 1 and 2. Prosecution was ordered to serve the accused persons with all disclosures for Case Management Conference (CMC). The accused persons were admitted to bail to reappear on 15th February, 2022 for CMC. Case Management Conference was accordingly held after the Court confirmed that the accused persons who were self – represented had been served with prosecution’s disclosures. The second accused person absented himself from the proceedings after he was admitted to bail. Bench Warrant was issued against him but he was tried in absentia. Prosecution’s case Prosecution called two witnesses to prove its case including the Investigator. 3 PW1 The witness statement of PW1 and PW2 were not attached for the Court’s perusal but PW1 indicated in his evidence that he is a farmer/driver in Susuanho. According to him, on the day in question around 2:00am, he saw the accused person attempting to enter his goat pen. When he questioned him, he said his motor bike developed a fault and he was looking for a place to lodge for the night. Upon enquiring about the whereabouts of the motorbike, the accused person took him to a place faraway where he had parked the motorbike. When the motorbike was started, it could not start. According to PW1, he saw the accused person and his son standing at different sides of the goat pen and he observed them after some time before he showed himself to them. PW2 PW2 No.47666 G/CPL Patrick Brako stationed at Duayaw Nkwanta Police Criminal Investigations Department investigated the case. PW2 sought to tender Investigation Cautioned Statement (ICS) and Charged Cautioned Statement (CCS) of the accused person but the accused person objected to the statements that he did not make them. The Court conducted mini trial and on 16th May, 2022 on page 15 of the record of appeal, the Court noted that the objection raised by the accused person to his Investigation Cautioned Statement is overruled because prosecution established beyond reasonable doubt that the statement was taken in the presence of an independent witness who read and interpreted the statement to the accused person in Twi language. PW2 stated in his evidence that a case of attempt to steal and being on premises for unlawful purpose was referred to him for investigations. During investigations, he obtained ICS and CCS from A1 and A2. Subsequently the ICS of A1 was admitted and marked as exhibit “A”. Photographs of the accused persons with grains of maize seized from them was marked as exhibits “C” and “C1”. The Investigation Cautioned 4 Statement of A2 was tendered and marked as exhibit “D” and Charged Cautioned Statement of A2 was marked as exhibit “E”. The Court proceeded against A2 in absentia although bench warrant was issued for his arrest and he was not produced by prosecution. Accused Person’s Defence, A1 (Appellant) A1 opened his defence on 25th May, 2022. He testified that he is a farmer and that he was traveling with A2 to Bomaa from Susuanho. Their motorbike developed a fault on the way. They attempted to start it but they were not successful so they tried to find a place to sleep to find a repairer the next day. They pushed the motor bike to a nearby hotel but the security man asked them to leave because they could not afford a room. They went to Susuanho township, pushed the motorbike to town and saw a wooden kitchen with a dog lying beside it. A dog barked at them. They continued to a house close by and someone flashed a light at them. The person questioned them about where they were going at that time of the night and they told him about their faulty motorbike and the fact that they wanted a place to sleep to continue the journey the next morning. They showed the person the whereabouts of the motorbike when he requested about it. The man invited another person and when they attempted to start the motorbike it did not spark. It was suggested to them to leave the motorbike to return the next morning for them to be taken to the chief’s palace to explain what they were doing in the town at that time of the night. They rather decided to remain in the town to go to the chief’s palace in the morning. People started gathering around them and one person suggested that they should be taken to the Police station. The Police patrol team was called and they came to arrest them together with the motorbike to the police station. A1 stated that they were on their way to Bomaa to visit his friend who is a fetish priest at 12 midnight because his son, A2 had stomach ache which kept recurring. They attended hospital several times without a solution. He spoke with his 5 herbalist friend who asked him to bring his son for him to be treated. He stated that the grains of maize were found in A2’s pocket. He did not call any witness. Judgment of the trial Judge The trial judge summarized the evidence of PW1 and PW2 at page 2 of the judgment that PW1 testified that he rears goats in an enclosed pen behind his house at Sushanho. On 7th January, 2022 at about 2:30am he heard a dog barking and when he came out he saw A1 and A2 standing by his pen and looking into his pen. He enquired from the accused persons what they were looking for at such an odd hour, they could not give him any reasonable explanation, he raised alarm because he suspected the accused persons that they had come to steal his goats. A few residents gathered around. The accused persons were arrested. When they were searched, (11) pieces of maize grains were found in the pocket of A1. The Police was informed and they were arrested. At page (8) of the judgment, during cross - examination of PW1 the Judge noted that; Under cross - examination, PW1 stated that when A1 told him that his motor cycle had broken down and that they were pushing it to a safe place and (sic) find a place to lodge, the accused took him to a place far away from where they were seen. The judge captured the cross – examination of PW1 by A1 as follows; A1. I am putting it to you that my motorcycle had developed a fault and we were pushing it. PW1. I saw him attempting to enter my pen and he said his motor cycle had developed a fault at 2:00am and was looking for a place to park it. When we asked for the motor cycle, he took us to a far away place to see the motor cycle parked. A1. Did the motor cycle start when you attempted to start it? PW1. We could not start it. 6 A1. I am putting it to you that at the time you saw us we were not going to steal. PW1. He was attempting to steal my goat. The Court noted further that; From the above, it can be inferred that A1 was not pushing his broken down motor cycle at the time he was caught standing by the goat pen. In his Investigation Cautioned Statement to the Police which was admitted as exhibit “A” he stated in part as follows; “We pushed the motor cycle and parked it near a church building about one hundred metres away from Susuanho township to find a place to rest so that by day break, we can find a fitter and continue our journey. The court further noted at page (9) of the judgment as follows; The confession statement by A1 to the police confirms the answer given by PW1 under cross – examination that A1 took them to a far away place to see the motor bike parked there. It is therefore not correct for A1 to state that at the time they were found near PW1’s goat pen, they were pushing the broken down motor cycle and this Court is satisfied that A1 parked the broken down motor cycle near a church building, about one hundred metres away from where he was caught peeping into PW1’s goat pen. At page (2) of the judgment the learned trial Judge noted that, “PW2 No. 47698 D/C Patrick Brako testified that he investigated the case. He obtained Investigation Cautioned Statement and Charged Cautioned Statement from A1 and he took photographs as well. A1 objected to the statements. After mini trial was held the Judge overruled the objection and stated that the statements were obtained from A1 in the presence of an independent witness. The ICS and CCS of A1 were tendered by the Investigator and marked as exhibits “A” and “B” respectively. The investigator tendered the photographs of the accused persons with the grains of maize as exhibits “C” and “C1” The Investigation Cautioned Statement and Charged Cautioned Statement of A2 were admitted in A2’s absence and marked as exhibits “D” and “E””. Although Bench Warrant was issued against A2, he was tried in absentia. 7 At page (9) of the judgment, the Court indicated that it sought certain clarifications from A1 regarding his visit to his friend and for what purpose. At page (14) of the judgment; The Court made reference to A2’s Investigation Cautioned Statement and compared and contrasted it with A1’s ICS and stated for instance that A2 confirmed PW1’s evidence that the accused persons were peeping into the goat pen when he showed his flashlight on them, with each standing on each end of the goat pen a fact which A1 denied. At page (19) of the judgment the Judge stated that; “In the instant case, the prosecution has been able to establish that both A1 and A2 were found on the premises of PW1 at 3:00am peeping into PW1’s goat pen and when they were pushing his broken down motorcycle to find a place to lodge and continue their journey the next day. However, when A1 was asked to show PW1 the whereabouts of the said motor cycle, A1 took him to a church premises about hundred metres away where the said motor cycle was parked. It is evidently clear to this Court that the accused persons were on the premises of PW1 for a different purpose. The reasons are far fetched”. At page (20), the learned trial Judge stated that; “From the pieces of evidence gathered, this Court is satisfied that prosecution has been able to discharge its burden of proving the guilt of A1 beyond reasonable doubt. The burden of proof therefore shifted on A1 to raise a reasonable doubt as to his guilt”. At page (22) of the judgment the learned trial Judge stated as follows; “The pieces of evidence offered by the accused person, when pieced together do not add up. It only points in the direction of guilt of the accused person. He could not offer any sufficient explanation as to why he chose to send A2 to a fetish priest (sic) shrine at 12:00 midnight to seek medical treatment. He did not arrange an alternative 8 transportation to transport the sick A2 to the said fetish priest for the requisite treatment when his motorbike broke down. He parked his faulty motor cycle near a church building and walked 100 metres by passing several houses and ended up at the goat pen of PW1 on the pretext of seeking for a place to lodge. Interestingly, A2 who was supposed to be sick and was being sent to a supposed fetish priest (sic) shrine for treatment assisted A1 to push the broken down motorcycle from where it broke down to a church premises. When pieced together, the evidence of A1 ended creating more doubts in his own evidence. On the totality of the evidence, the accused persons are found guilty as charged and are accordingly convicted. Before sentencing, by plea of mitigation of sentence, by 1st accused person? A1 pleaded with the Court to deal leniently with him and prayed he would not repeat this”. At page (23) of the judgment, the learned trial Judge noted that; “In sentencing the accused person after conviction, this Court has taken note of the fact that A1 an ex – convict who has served a term for the same offence of stealing in the past. It is provided for in the Criminal and other Offences (Procedure) Act, 1960 (Act 30) s. 300 (1) as follows; Where a person having been convicted of a criminal offence, is again convicted of a criminal offence that person is liable to increased punishment provided in the table annexed to this section and notes to it or to a period of detention in this Act called “preventive custody” under part XIII. In the respectful view of this court, A1 having been convicted and sentenced for stealing on two occasions previously is liable to an enhanced punishment as provided for by Act 30. s. 300 (1) quoted supra. The Court is however mindful of the plea of mitigation offered by A1 in which he pleaded for leniency. This Court is also mindful that in pronouncing sentence on the accused person, such sentence should be deterrent enough to deter A1 in particular and other would be offenders with similar tendencies as A1 from committing similar 9 offences in the future. Being a repeated offender, this Court is obliged to impose a stiffer punishment for the accused as required by law. Having been convicted of the offence of Stealing Contrary to Section 124 (1) of Act 30 1960, the accused person is hereby sentenced to fourteen years imprisonment in hard labour”. BY COURT Section 155 (1) of the Criminal Offences Act, 1960 (Act 29) states as follows; A person who is found in or about a market, wharf, jetty, or landing place, or in or about a vessel, verandah outhouse, building, premises, passage, gateway, yard, garden, or an enclosed piece of land, for an unlawful purpose, commits a misdemeanor Section 18 (1) (a), (b), (c) and (d) of Act 29 states as follows; A person who attempts to commit a criminal offence shall not be acquitted on the grounds that the criminal offence could not be committed according to the intent (a) by reason of imperfection or other conditions of the means ,or (b) by reason of circumstances under which they are used, or (c) by reason of circumstances affecting the person against whom, the thing in respect of the criminal offence is intended to be committed, or (d) by reason of the absence of that person or thing. Section 124 (1) of the Criminal Offences Act, 1960 (Act 29) states that; A person who steals commits a second degree felony In accordance with section 296 (5) of the Criminal Procedure Act 1960, (Act 30) a person who is convicted for stealing is liable to a term of imprisonment not exceeding (25) years. Section 300 (1) of Act 30 states that; 10 Where a person, having been convicted of a criminal offence that person is liable to increased punishment provided in table annexed to this section and the notes to it to a period of detention in this Act called “preventive custody” under part XIII. In the case of King vs Gyan [2017 -2020] 1 Supreme Court of Ghana Law Report (SCGLR) 912 @ 913 The Court held in holding (1) as follows; the principle that “an appeal is by way of rehearing” meant that, in coming to its judgment, an appellate Court had to examine relevant pieces of evidence on the record including exhibits, oral or written submissions of counsel to ascertain whether the trial court below or the first appellate court was justified in arriving at a finding of fact or law in the judgment. That principle was distinct from the process of hearing an appeal where the bench might invite parties or their counsel to address the court on points raised by either of the parties, or their counsel or the court itself. Consequently, an appellate court had to examine the record of proceedings by scrutinizing pieces of evidence on record to ascertain whether the judgment was supported by evidence. In arriving at its judgment an appellate court could also draw its own inferences from the established facts and could either affirm the judgment for different reasons or vary it. GROUND (a) That the judgment, conviction and sentence were improper since same are not supported by evidence on record. The Appellant and one other were charged with being on premises for unlawful purpose under section 155 of Act 29. The law specifies where an offence could be made under this section depending on where one is found such as market, wharf, jetty or landing places or in or about a vessel, verandah, outhouse, building, premises, passage, gateway, yard, garden or an enclosed piece of land for unlawful purposes. On this ground, Counsel for the Appellant argued that the facts do not support the 11 charge because the kitchen or pen which was in the first place not conclusively established by prosecution is not among the places listed in Section 155 of Act 29. According to Counsel, the kitchen or pen is not a protected place the law covers and that the places listed in the offence are uniquely public places. The Court is however of a different view that the facts support the charge. Looking closely at the places mentioned in Section (155) which will constitute an offence are not necessarily uniquely public places as submitted by Counsel for Appellant. It will not therefore suffice to say that Section 155 does not protect owners of private places where persons are found at such places for unlawful purposes. Considering the places listed, verandah, outhouse, boys quarters, building and premises are not necessarily public places. Therefore, a kitchen or pen or both located within a building or premises of PW1’s house in the Court’s considered view under Section (155) will suffice. Reading the facts carefully and taking PW1’s evidence into consideration the kitchen or goat pen or both are located behind the house of PW1, which encompasses the premises of PW1. Therefore, the kitchen and pen qualify as places under Section (155). Counsel’s further argument is that the mere fact that the Appellant was found standing at where the pen or kitchen were is not sufficient to impute him with criminality and that mere suspicion is not evidence. Besides, prosecution could not prove cogently that where the Appellant was found is a kitchen or pen. The facts indicate that the Appellant and his son A2, were seen by PW1 from a distance at his pen between 2:30am - 3:00am. A1 and A2 do not live in the house nor the town. They were found standing side by side by PW1’s pen as such ungodly hours peeping into the pen. PW1 observed them for a while, flashed his torch light on them before he showed himself to them. For what legitimate purpose were A1 and A2 at PW1’s pen with 11 grains of maize in A1’s pocket at that ungodly hour? PW1 had every reason to be suspicious that A1 and A2 were within his premises for unlawful purpose. In the Court’s view therefore, the facts support the charge that A1 12 and A2 were found at the pen of PW1 between the hours of 2:30am and 3:00am peeping into the goat pen of PW1 and that they were on the premises for unlawful purpose. Counsel for the republic is also of the view that the facts support the charge because PW1 did not just see A1 and A2 at his pen but he observed them for a while before showing himself to them. The Court is of a further view that the barking of the dog even signified the presence of strangers in the premises and PW1 had to observe A1 and A2 for a while from his rom before showing his torchlight on them before approaching them. Regarding Section 18 of Act 29 on attempt to commit crime, Counsel for the Appellant argued that the section does not create an independent offence but rather provides parameters of an attempt to commit crime. According to Counsel, this goes beyond preparation and that mere suspicion is not sufficient. Counsel argued that in the case of Dua vs. the Republic [1971] 2 GLR 227 the accused persons did more than preparation. Counsel contends that prosecution’s duty is to prove the essential ingredients of the offence beyond reasonable doubt. According to Counsel, from the testimony of PW1 he did not see the Appellant stealing his goat. Counsel contends that the Appellant being a farmer, it is not strange for maize to be found in his pocket and that if the learned trial Judge had exercised a little attention he would have appreciated the Appellant having maize in his pocket and would not find it strange. It is Counsel’s submission that the Appellant was not at the premises to steal and that there is no evidence to establish that the Appellant was there for unlawful purpose. Counsel contends that the judgment was largely based on the evidence of the Appellant rather than prosecution and further argued that the Judge focused on the investigation cautioned statement of the Appellant, which did not make any admission of wrongdoing. According to Counsel, it appeared that the Judge had already made up his mind about the Appellant before prosecution opened its case. Counsel referred to the case of Mali vs. The State [1965] GLR 710 and argued that once the Judge had to make enquiry by asking the Appellant questions it meant that 13 prosecution had not proved its case and the Appellant was to be acquitted. Rather the Court presumed the Appellant guilty before giving him opportunity to prove his innocence when statutorily the Appellant had no burden but to raise a reasonable doubt in prosecution’s case. According to Counsel, the trial Judge should have considered the defence of the Appellant no matter how weak or stupid it was as required under section 177 of Act 30. He concluded that the conviction and sentence are improper since they are not supported by evidence on record. Counsel for the republic on the other hand is of the view that the conviction and sentence are proper and is supported by the evidence on record. Counsel argued that when PW1 saw A1 he was not pushing a faulty motorbike and that he had parked the motorbike at a place far away and this was repeated in A1’s investigation cautioned statement and the Judge took notice of it in his judgment. Counsel argued that based on PW1’s evidence on page (9) of the record of appeal he said he saw A1 at about a distance of six to seven feet. According to Counsel, this distance is not that long to prevent PW1 from seeing A1. The photographs that prosecution tendered also showed A1 and A2 at the pen with grains of maize seeds in A1’s pocket. Counsel noted that based on the above evidence led by prosecution it was established that; 1. When A1 was arrested, he had parked his motorbike far away from where he was seen. 2. He was found with maize in his pocket at the pen, which by all intents and purposes intended to be used to lure the goat from its pen. Counsel argued that after prosecution made a prima facie case the Appellant was to raise a reasonable doubt in prosecution’s case. However, the evidence he gave that he pushed his motorbike to a safe place to find a place to sleep is a fanciful possibility and mere supposition and did not raise reasonable doubt in prosecution’s case, which should be disregarded by the Court. According to Counsel, upon careful perusal of the record of appeal the Appellant’s conviction and sentence in her view is amply 14 supported by the charge and that the Appellant woefully failed to raise a reasonable doubt in prosecution’s case. Therefore, ground (1) of the appeal should be dismissed. The Court acknowledges that prosecution’s evidence is very terse. The Court takes notice that the trial Court had to make enquiries from the Appellant to add up to prosecution’s story which is contrary to law because prosecution is obliged to prove the guilt of the accused person beyond reasonable doubt on its own per Section 11(2) of the Evidence Act, 1975 (NRCD 323) which states that; 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. Therefore, the Court is not supposed to help prosecution to prove its case. The trial Judge therefore erred by seeking “Clarification from the Court” at pages 21 to 23 of the record of appeal. The position of the law is that when the Court entertains doubts and needs further evidence for prosecution to prove its case the said doubt, not fanciful possibilities but reasonable doubt should inure to the accused person’s benefit and for the accused person to be acquitted. In the case of Mali vs. The State [1965] GLR 711 the Court held in holding (4) that; Where at the end of prosecution’s case the Court requires further evidence to enable it to decide issues raised in the evidence given by the prosecution then the irresistible inference is that the prosecution has not made out a case and the accused should be acquitted. 15 The Court also takes notice that the trial Judge compared the investigation cautioned statement of A2 with that of A1 and made certain conclusions at page (14) of the judgment, which should not be so because A2 did not participate in the trial for him to be cross – examined on the statements he made to the police. The Court stated as follows at page 14 of the judgment; “First, A2 did not confirm A1’s assertions that A2 was suffering from stomach ache which required treatment at a shrine of a fetish. Second, A2 did not confirm A1’s assertions that A2 was aware of where they were going at that odd hours (sic). Third, A2 debunked A1’s assertion that the grains of maize were found in the pocket of A2 when they were searched. Fourth, A2 confirmed PW1’s evidence that the accused persons were peeping into the goat pen when he beamed his flash light on them, with each standing at each end of the goat pen, a fact which A1 denied”. The above notwithstanding, it is clear on record that prosecution called two witnesses; PW1 an eye witness and PW2 the investigator. The evidence of the two put together alone without the trial Judge’s enquiry nor comparison of A1’s investigation cautioned statement with A2’s investigation cautioned statement could still incriminate A1. The reality is that A1 and A2 were found standing at different sides of PW1’s pen within the odd hours of 2:00 am and 3:00am peeping into the pen. They were apprehended, photographs were taken of them and maize grains were found in A1’s pocket. Counsel for the Appellant noted that if the trial Judge had exercised more attention he would have appreciated the fact that A1 being a farmer and having maize grains in his pocket is not strange. Although A1 is a farmer at the time he was found at the goat pen he was not on his farm neither was he on his way to his farm when he was apprehended. It is therefore not reasonably probable for a farmer to carry maize in his pocket and walk around with it. Goats consume maize so if A1 was found at a goat pen between 2:00am and 3:00am with maize in his pocket the conclusion any reasonable passenger on a Sunyani Taxi or Duayaw Nkwanta trotro would make is that A1 intended to use the maize grains found in his pocket to lure the goat. 16 A1 and A2’s presence at the pen during those odd hours with maize in A1’s pocket with their motorbike parked at a far away distance is sufficient for anyone to impute criminality to them especially PW1 who saw them. I dare say that the motorbike was packed at a distance to prevent them from being traced by the motorbike tyres. The substance of prosecution’s evidence is very clear to establish attempt. Regarding attempt, the offence need not be completed and therefore there is no need for prosecution to establish that A1 and A2 stole a goat. There is sufficient evidence that A1 and A2 prepared to attempt to commit crime by travelling from their home in Duayaw Nkwanta to Susuanho, parking their faulty motorbike at a distance and walking at a distance to PW1’s pen and they were found at the pen within such odd hours peeping into PW1’s pen with 11 grains of maize in A1’s pocket. The mere attempt is sufficient and the terse evidence of prosecution alone without more is sufficient to convict the Appellant. In the circumstance, the Court is convinced that the conviction and sentence of the Appellant by the learned trial Court Judge was proper and the evidence on record regarding ground (a) of the appeal supports it. Ground (a) of the appeal therefore fails. GROUND (b) That the sentence imposed is harsh, on the higher side and same was wrong and contrary to law Counsel for the Appellant argued that the trial Judge sentenced the Appellant based on previous conviction whereas there was no evidence of such record in the record of appeal. Counsel cited page 387 of Justice Dennis Dominic Adjei’s book on Criminal Procedure and Practice in Ghana, which states to the effect that; where prosecution alleges that a convict has previous conviction to suffer enhanced sentence, a certified true copy of the proceedings of the Court which convicted him or warrant of the Court which committed the convict to prison shall be submitted to the Court for the Court to make reference to it. Counsel contends that there was no such record and the trial 17 Judge did not give the Appellant opportunity to make a plea of mitigation. The trial Judge also failed to consider the factors, which guided him to pass the sentence. He failed to consider that the Appellant did not steal the goat and for that matter, the Appellant did not benefit from the offence he was charged with. He did not consider the age of the Appellant 46 years. The trial Judge did not consider mitigating factors. According to Counsel the sentence was harsh and contrary to law e.g. in the case of Frimpong @ Iboman vs. The Republic, [2012] SCGLR 297, the Supreme Court discouraged trial Court Judges from imposing unnecessarily harsh and long sentence. The sentence according to Counsel is harsh and wrong in law. The error is grievous and occasioned substantial miscarriage of justice to the Appellant. Counsel prayed the Court to set aside the conviction and sentence of the Appellant. Alternatively, if this Court in its wisdom is of the view that the Appellant is guilty, Counsel prays the Court to consider reduction of the sentence for the Appellant. Counsel for the republic with reference to the case of Owusu Banahene vs. The Republic [2017 – 2020] 1 SCGLR 404 argued that sentencing is a matter of the Court’s discretion and that the appellate Court will not interfere with the sentence of a trial Court unless it is manifestly excessive. Counsel submitted that under section 18 (2) of Act 29 if an offence is attempted and same is not completed one could be punished for the substantive offence. In this case, the offence is stealing a second degree felony. The Court noted that the Appellant had two previous convictions before sentencing him. Counsel however noted that the Court is to exercise its discretion within the confines of established principles. According to Counsel, it is of paramount importance for a trial Judge to give cogent reasons for his lenient or deterrent sentence. It is Counsel’s firm belief that the trial Judge considered all mitigating and aggravating factors before sentencing the Appellant. Counsel urged the Court not to disturb the sentence imposed on the Appellant and dismiss this ground of appeal. 18 The Court acknowledges that the trial Judge gave the Appellant opportunity to plead for mitigation. The Appellant was self represented and he only prayed the Court to deal leniently with him and for forgiveness. In sentencing the Appellant at page 23 of the judgment the trial Judge took into consideration the Appellant’s; 1. Plea for leniency by way of mitigation 2. That the Court is mindful of imposing a deterrent sentence 3. That the Appellant is a repeated (sic) offender and so it is obliged to give a stiffer punishment Having been convicted of the offence of stealing he was sentenced to (14) years imprisonment. It is very important to note that it is not stated anywhere in the record of appeal that the Appellant was sentenced for any offence previously not to talk of him being an ex – convict as stated at page 23 of the judgment as follows; “In sentencing the accused after their conviction, this court has taken note of the fact that A1 is an ex – convict who has served a term of imprisonment for the same offence of stealing in the past”. Offence of stealing, what did the Appellant steal? He was sentenced, in which Court was the Appellant sentenced? How many years imprisonment was he sentenced to and which prison did he serve his sentence? When did he start serving the sentence and when did he finish serving the sentence? No date was given for the said previous conviction in the record of appeal. The Court is of a considered view that in the absence of documentary evidence in the record of appeal regarding the Appellant’s previous conviction perhaps the trial Court obtained the said information from prosecution orally which is contrary to law as cited supra by Counsel for Appellant from page 387 of Justice Dennis Adjei’s book. 19 In the light of the foregoing, I am of a firm conviction that the trial Judge relied heavily on the alleged previous conviction of the Appellant to hand him a deterrent and stiffer punishment. However, since there is no documentary record in the record of appeal regarding previous conviction of the Appellant, the Appellant is considered as a first offender. It is to be noted that the trial Court Judge did not also state under which count the Appellant was sentenced and whether the sentence are concurrent or consecutive. Therefore, I agree with Counsel for the Appellant that the sentence of fourteen years imprisonment imposed on the Appellant by the trial Judge is harsh, on the higher side and same is wrong and contrary to law. I therefore set the said sentence aside. In substituting a sentence for the Appellant, the Court considered the following; 1. That the Appellant is a first offender. 2. That he pleaded for leniency 3. That he has been in prison for 1 year nine months and he has shown remorse. 4. The offence of being on premises for unlawful purpose is a misdemeanour. 5. Attempt to commit crime to wit; stealing is a second degree felony 6. The Appellant did not steal anything and he did not benefit from the crime. 7. At age 46 there is no need to give him a harsh sentence to waste the rest of his youthful years in prison. Let him serve the sentence and return to society for his peers to learn from his example. In the light of the foregoing, ground (a) of the appeal that; the judgment, conviction and sentence were improper since same are not supported by the evidence on record, the Court is of the view that the conviction and sentence of the Appellant is proper because the judgment is supported by the evidence on record. Therefore, the 20 conviction of the Appellant is hereby affirmed and this ground of appeal is hereby dismissed. On ground (b) of the appeal that; the sentence imposed is harsh, on the higher side and same was wrong and contrary to law, the appeal succeeds. The sentence of fourteen (14) years imprisonment imposed on the Appellant by the learned trial Court Judge is hereby set aside and substituted as follows; COUNT 1 The Appellant is hereby sentenced to twelve (12) months imprisonment on count (1) which is a misdemeanour. COUNT 2 The Appellant is sentenced to three (3) years imprisonment on count (2) which is a second degree felony. The sentences to run concurrently with effect from the date the Appellant was convicted at the Circuit Court Duayaw Nkwanta on 6th October 2022. The appeal therefore succeeds in part, on count 2. JUSTCE JOYCE BOAHEN HIGH COURT JUDGE 31st JULY 2024 21