GYARKOR VRS. REPUBLIC (F22/11/2024) [2024] GHAHC 478 (1 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON MONDAY THE 1ST DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: F22/11/2024 KINGSLEY GYARKOR - CONVICT/APPELLANT VRS THE REPUBLIC - RESPONDENT JUDGMENT On Tuesday, the 13th day of February, 2024 the District Magistrate Court, Twifo Praso convicted the Convict/Appellant (hereinafter called the Appellant) together with on Nkum Emmanuel on their own plea of guilty to the following charges levelled against them; Conspiracy to Steal contrary to sections 23(1) and 124(1) of the Criminal Offences Act, 1960 (Act 29), Unlawful entry contrary to section 152 of the Criminal Offences Act, 1960 (Act 29) and Stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). Accordingly, on Wednesday, 14th February, 2024 the Appellant was sentenced to two (2) years imprisonment IHL each on counts one and two. On count three, the Appellant was convicted to four (4) years imprisonment IHL. Being aggrieved by the conviction and sentence the Appellant has appealed to this Court on the grounds contained in the Petition of Appeal filed on 13th March, 2024. The said grounds are reproduced below: 1. That the conviction was wrong and same should be reversed. 2. That should the conviction stand, without admitting same, then the sentence of 4 years in detention is excessive and harsh and should be 1 reduced drastically or in the alternative reversed to a non-custodial sentence. The settled law that appeals are by way of rehearing and an appellate court is therefore entitled to look at the evidence in its entirety and come to its own conclusion. See AGYEIWAA V P & T CORPORATION (2007-2008) SCGLR 985 at page 989 and TUAKWA V BOSOM [2001-2002] SGCLR 61. The import of this age-old principle is that it is incumbent on an appellate court who is invited to have a second look at the conclusions of a trial judge vis-à-vis the evidence on record to scrutinise the entire record of appeal before arriving at a decision as if this Court were the Court of first instance. The brief background to this case is that the Complainant, a miner and a farmer, had been detecting rampant theft of his palm fruits from his palm plantation and all efforts made to apprehend the culprit proved futile. However, on the faithful day of 26th January, 2024 at about 11:30am, the Complainant visited his farm and met the Appellant with one Nkum Emmanuel harvesting his palm fruits. They took to their heels leaving behind seventeen (17) bunches of palm fruits valued at GH₵ 98.80. On 10th February, 2024 the Appellant was arrested from his hideout at Denkyira Wawase and he admitted the offences. In law, there is a general presumption of innocence in favour of persons charged with a criminal offence. This bromide is sanctioned under Article 19(2)(c) of the 1992 Constitution which stipulates as follows: A person charged with a criminal offence shall – (c) be presumed to be innocent until he is proved or has pleaded guilty. 2 This constitutional provision, coupled with sections 13 and 20 of the Evidence Act, 1975 (NRCD 323) form the basis for the prosecution bearing the onus of establishing the guilt of an accused beyond reasonable doubt. The presumption is rebutted once the prosecution is successful beyond reasonable doubt or where the person so charged pleads guilty to the charge(s). The latter is so because, a fact admitted dispenses with the requirement of proof. See KUSI & KUSI V BONSU [2010] SCGLR 60. In this instant case, the record clearly indicates that the plea of the Appellant was taken on 13th February, 2024 in the language he understands. It is further clear on page 4 of the Record of Appeal that the facts were read to the Appellant and the court inquired whether the Appellant still relies on his guilty plea on all counts and the Appellant, without any hesitation or qualms answered in the affirmative. On this basis, he was convicted on his own plea. I therefore find no faults with the conviction of the Appellant based on his own plea for the charges proffered against him. The first ground of appeal therefore fails. Moving on to the second ground of appeal, the Appellant maintains that the sentence of 4 years in detention is excessive and harsh and should be reduced drastically or in the alternative reversed to a non-custodial sentence. The law regarding sentencing, as I understand, is wholly discretionary. There is absolutely no entitlement since it is at the discretion of the court. Like all discretionary powers, it must be exercised judiciously, fairly and within the confines of the law. An appellate court can only disturb a sentence imposed by a trial judge in the exercise of his or her discretion only where it is proven that the trial court did not exercise its discretion judiciously. See PHILIP ASSIBIT AKPEENA V THE REPUBLIC (2020) 163 GMJ 32. 3 The grounds upon which an appellate court can interfere with the sentence given by a trial court was succinctly stated in the case of APALOO V THE REPUBLIC [1975] 1 GLR 156 as follows: “The principles upon which this court acts on an appeal against sentence are well-settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle.” In this case, the learned Magistrate noted that the Appellant is known to the law. He had been convicted by the same court for stealing and sentenced to 2 years imprisonment. In this regard, the learned Magistrate, applying section 300 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) sentenced the Appellant to four (4) years imprisonment IHL for stealing. Again, I find no faults with the sentence imposed by the learned trial magistrate considering the fact that there is no minimum sentence for the offence of stealing under section 296(5) of the Criminal and Other Offences Act. The imposed four (4) years sentence is perfectly within the prescribed sentence of twenty-five (25) years. The mere fact of the Appellant being 20 years does not necessarily qualify him for a lesser sentence as a young offender under section 46(1) of the Juvenile Justice Act, 2003 (Act 653). Stealing, not being an offence for which the Court had the power to impose a sentence of a month or upward with the option of a fine under section 60(1) of the Juvenile Justice Act, the trial magistrate was therefore right in dealing with the Appellant under the Criminal and Other Offences (Procedure) Act. In my 4 considered view, the sentence imposed by the learned Magistrate cannot be disturbed on the strength of APALOO V THE REPUBLIC supra. Further, I find no justification for the imposition of a non-custodial sentence for a second-degree offence. As held supra sentencing is discretionary. However, same must be exercised within the confines of the law. The law has expressly provided for the punishment for the offence of stealing under section 296(5) of the Criminal and Other Offences (Procedure) Act, that is, a term of imprisonment not exceeding twenty-five years. It would therefore be illegal and a nullity to impose a non-custodial sentence contrary to the express provisions of the law. Accordingly, the appeal fails in its entirety as unmeritorious. The conviction and sentence of the Appellant is hereby affirmed. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL MICHAEL ARTHUR DADZIE ESQ. FOR THE CONVICT/APPELLANT. AMA AKYAAH TAYLOR ESQ. ASSISTANT STATE ATTORNEY FOR THE RESPONDENT. 5