NYARKO VRS REPUBLIC (C15/020/24) [2024] GHAHC 230 (10 June 2024)

1 | P a ge IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON WEDNESDAY THE 10TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG- OPOKU ESQ. SUIT NO. C15/020/24 OBED NYARKO ……. APPELLANT VRS: THE REPUBLIC ………. RESPONDENT JUDGEMENT This an appeal against the sentence of the Dormaa Ahenkro Circuit Court, presided over by Her Honour Philomina Ansaah Asiedu of the Accused/Appellant herein simply referred to as the appellant. The appellant was charged with the offence of stealing contrary to section 124 (1) of the criminal offences Act, Act 29 of 1960 as amended by paragraph 4 of NLCD 396 of 1969 and conspiracy contrary to section 23 (1) Act 29 of 1980 the appellant pleaded guilty to the offence of stealing and not guilty to the offence of conspiracy. The appellant who was charged with others was then convicted on his own plea of guilty in respect of the offence of stealing and sentenced on 2nd day of August, 2023 to four (4) years imprisonment. It is against the sentence that the appellant has with the leave of the court granted on 28th February, 2024 launched this instant appeal. Ground(s) of Appeal The Appellant filed one ground. And that the ground of Appeal filed on 7th March, 2024. 2 | P a ge (a) That the sentence is too harsh under the circumstance. Facts of the case The complainant in this case is a businessman residing at Dormaa Ahenkro whilst A1 and A2 (the appellant herein) are tricycle rider and electric welder residents of Dormaa Ahenkro and Sunyani respectively. A3 now at large recruited A2 his former school mate from Sunyani to Dormaa Ahenkro to steal tricycle (pragya) and were accommodated by A1 at KDS a suburb of Dormaa Ahenkro. About 10:00pm same day all accused persons proceeded to the former main lorry station area close to the Dormaa central mosque where the complainant rider has parked his black and Yellow tricycle value Ghc28,000.00 and was attending to a pressing issue. A3 quickly disconnected the ignition cables and rode same while A2 and A2 were on board. A3 after riding the tricycle within a short distance handed over to A1 who is well known to the police as tricycle rider in order to outwit police suspicion. Upon reaching Wamfie the Accused persons branched route to evade the various police check points. About 6:00am the following morning the accused persons upon reaching a village near Wawasua close to Sunyani run out of fuel and decided to seek for help but which eluded them since the town folks were also in search of a missing tricycle. As they were been questioned, A3 sensed danger and quickly dashed through the nearby bushes and escaped arrest A1 and A2 were arrested and handed over to Sunyani police who also handed them over to police at Dormaa Ahenkro for investigations. During interrogations, A1 admitted the offences but A2 denied the offences and stated that, he only accompanied A1 and A2 after investigations, both are charged with the offences and brought before this Honourble court while efforts are been made to apprehend A3. 3 | P a ge Arguments of counsel for the Appellant Arguing on sole ground that the sentence is harsh under the circumstance of the case. Avers that the trial court was to consider mitigating factors before sentence an accused person who has been convicted and that the policy behind considering mitigation factors before sentencing is for the court to avoid a situation where a sentence would either be too harsh or too soft. He further argues that, the trial judge is not only bound to consider the circumstances of the offence but also the specific circumstances of the offender and quoted the case of R Vrs. Gardiner (1982)2 SCR 368 to support the said assertion. Furthermore, the counsel for the appellant in his written argument stated that the trial court is bound to consider mitigating factors on the peculiar facts of each case as they relate to the Accused person and also stated that factors to be considered as mitigation during sentence are (1) The age or youthfulness of the convict (2) Whether he is first time offender (3) Whether he has shown remorse (4) Whether he did not waste the time of the court and others. However, the trial court failed, refused, neglected and ignored them in sentencing the accused. The failure on the part of the trial court obviously occasioned a miscarriage of justice. To support this assertion by him, he cited the following authorities; Yakubu Salifu Vrs. The Republic The Republic Vrs. Francis Akyerefi suit No. F22/8/22 delivered on 17th February, 2022. 4 | P a ge He then went on to argue that, although the trial court in sentencing stated that she did consider mitigating factors but in reality the court failed to apply mitigating factors which has resulted in miscarriage of justice. Learned counsel for the Appellant went on to argue that, the trial court ought to have considered by way of mitigation the fact that the appellant did not waste the court’s time by pleading guilty simpliciter without any explanation and also the appellant show of remorsefulness should have been taken into consideration. Finally, he argues that the appellant did not profit from the crime and therefore, that ought to have been a mitigating factor, which the trial court ought to have considered. Hence, it is not for nothing that the law gives both a maximum and minimum sentencing thresholds, it is for the court to situate the nature of the offence and other relevant incident or factors in its proper contest and give deserving punishment to the convict. Learned counsel for the appellant finally concluded that, the trial judge over looked mitigating factors which when critically considered qualifies the appellant to be shown mercy by this Appellate court. Although, he admitted that the appellant conduct was reprehensible nevertheless he must be given an opportunity to reset his mind and start all over again as life is a learning process. And therefore, in that regard it is the prayer of the learned counsel for the appellant that this Appellate court exercises it discretion in favour of the appellant by mitigating the sentence imposed on the Appellant. And that, since the appellant has spent time in prison and having been remorseful of his conduct the Appellate court should temper justice with mercy and come to the aid of the 5 | P a ge Appellant on this point counsel cited the case of Kamil Vrs. The Republic. Appeal No. J3/3/2009 delivered on 8th December, 2010 by the Supreme Court. Arguments of Counsel for the Republic/Respondent In reply, the learned Assistant State Attorney stated that, it is well-established principle of law that sentencing is a discretionary duty of the trial court and that in the case of Owusu Banahene Vrs. The Republic (2017-2020)1 SC GLR 606, the supreme Court discussed the issue of sentencing through Adinyira JSC the court stated as follows; “As a principle sentencing is a matter of discretion for the trial court and an appellate court will only interfere when its opinion the sentence is manifestly excessive having regard to the circumstances of the case wrong in principle”. Furthermore, the learned Assistant State Attorney stated that when a judge passes a sentence there are five main factors that go into the decision. According to her these factors were emphatically stated in the case of Kamil Vrs. The Republic criminal Appeal No. J3/3/2009 dated 8th December, 2010 as follows; To be punitive, calculated to deter others. To reform the offender To appease the society and To be a safe guard to the community. Furthermore, according to the learned Assistant State Attorney in her written argument stated by citing the case of Banda Vrs. The Republic (1975)1 GLR 52 that the exercise of the power of sentencing lay entirely within the discretion of the trial court. 6 | P a ge According to her the sentence imposed by the trial court fell within the maximum permitted by statute creating the offence and that the trial judge duly considered those matters that go into mitigation of sentence. And that the appellate court should not disturb the sentence only because it would have felt disposed to impose a lighter sentence if it had tried the case at first instance. She also further argues that discretion must be exercised within the confines of the established principles specifically. It is incumbent upon the sentencing authority to take into account the relevant mitigating and aggravating factors. The trial judge in exercising her discretion also considered all the mitigating factors before passing sentence. At page 3 of the Record of Appeal, this is what the judge said; “I have considered the mitigation of sentence of the Accused Persons and the prosecution. I have also considered the fact that the tricycle was also retrieved, therefore the Accused persons did not benefit from the crime. Again the accused persons did not waste the time of the court”. The learned counsel for the Republic finally argues that the Appellant was convicted under section 124 (1) of the criminal offences Act, Act 29 of 1960 and that under section 296 (5) of the criminal procedure Act, Act 30 of 1960, a person convicted under any of the offences listed which includes section 124 if found guilty is liable to a term of imprisonment not exceeding 25 years. The term of four (4) years as imposed on the appellant by the court was more than fair. And that the trial judge considered all the mitigating and aggravating factors before exercising her discretion and passing the sentencing. 7 | P a ge She then concluded by urging the Appellate court not to disturb the sentence imposed by the trial court and therefore pray this appellate court to dismiss the appeal in its entirety. Findings of court An appeal is by way of re-hearing and the settled principle of law is that the appellate Court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was a trial court. Where the court below comes to the right conclusion based on evidence and the law, its judgement is not disturbed on the other hand, it attracts being upset on appeal where the judgement is unsupportable by facts and or the evidence see the case of Nkrumah Vrs.Ataa (1972) 2 GLR 156. However, in our instance, the appeal is against sentence. According to the appellant the sentence of 4 years was too harsh under the circumstance of the case. It must be noted that the appellant was charged with the offence of stealing contrary to section 124 (1) of Act 29 of 1960 as amended; Section 124 (1) of act 29 of 1960 states as follows; “Whoever steals shall be guilty of second degree felony”. In deed section 296 (5) of Act 30 of 1960 states as follows; “A person convicted of criminal offence under any of the following sections of the criminal offences Act, Act 29 that is sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252 253 and 260 is liable to a term of imprisonment not exceeding twenty-five years”. 8 | P a ge From the above, it means that a person charged under section 124 of Act 29, that is stealing when found guilty or pleaded guilty shall be liable to 1-day prison term to 25 years prison term. It must also be noted that the section did not set the minimum term but rather set the maximum term of imprisonment. In our instance case the appellant pleaded guilty simpliciter to the charge of stealing contrary to section 124 (1) of Act 29 as amended. Being a trite law that guilty plea amounted to conviction, the trial Circuit Court convicted the appellant and sentence him to 4 years imprisonment which is within the law and the sentencing powers of the said trial Circuit Court. It is against this sentence of 4 years that appellant is saying, is harsh taking into consideration, the circumstance of the case. Sentencing is an integral part of the trial process. In the recent case of Johnson Vrs. The Republic (2011) 33 GMJ 68-217 @ 128 that was held that; “A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence”. Therefore, the sentence process must satisfy requirements of fair trial, even though the accused has no substantive right to a particulars sentence within the range authorized by statute, sentencing is a critical stage of criminal proceeding at which he is entitled to some procedural rights in mitigating of sentence. However, it must be noted that the question of sentencing is discretionary provided the sentence is within the statutory limit. 9 | P a ge In Komegbe & Ors Vrs. The Republic (1975) 2 GLR 170-174, ANDOH J (as he then was) observed at page 172 as follows; “The sentence to be passed in any given case must in addition to the above depend upon discretion of the court and also the jurisdiction of the court what then. It is meant by discretion? In the case of Sharp Vrs. Wakefied (1891) AC 173 @ 179 H.L. Lord Halsbury L.C defines discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion …….. according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must exercise within the limit to which an honest man competent to the discharge of his office ought to confine himself”. Hence it is said that the discretionary nature of sentencing is not a licence for unreasonable harsh sentences without due regard to the factual and other circumstances of the case. Nevertheless, when appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purposes Namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country. See the case of Mohammed Kamil Vrs. The Republic (2011) 30 GMJ 1 Indeed, in the case of Banahene Vrs. The Republic (2017-2018) 1 SC GLR 606- Sophia Adinyira JSC speaking unanimously on behalf of the court reformulated the following as guiding principles that a court must consider when considering whether a sentence was excessive or not; “…..sentencing is a matter of discretion for a trial court and an appellate court would only interfere when in its opinion the sentence is manifestly excessive having regard to 10 | P a ge the circumstances of the case or that the sentence was wrong in principle. The factors that a court considers in determing the length of sentence include; (i) Any period of time spends in lawful custody in respect of that offence before the completion of the trial as provided under Article 14 (4) of the 1992 constitution. (ii) The intrinsic seriousness of the offence. (iii) The degree of revulsion felt by law abiding citizens of the society for a particular crime (iv) The premeditation with which the crime was committed. (v) The prevalence of a crime within a particular locality where the offence took place or in the country generally. (vi) The sudden increase in the incidence of a particular crime. (vii) Mitigating circumstances such as extreme youth, good character remorse and reparation. (viii) Aggravating circumstance such as violence manner in which the crime was committed. Also in the case of Henry Kwaku Owusu Vrs. The Republic (2020) LR 54 the Supreme Court per Appau JSC had this to say on what the Appellate Courts take into consideration, when dealing with sentencing; “The principle upon why this court acts on 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 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 law”. 11 | P a ge Although the appellant is saying that the sentence of 4 years imprisonment was harsh taking into consideration the circumstance of the case. By this argument Appellant meant that the trial court did not take into consideration some mitigating circumstances which enures to the benefit of the Appellant with due respect to the learned counsel for the Appellant, this assertion is not borne by evidence on record indeed at page 3 of the Record of Appeal this what the court said; BY COURT I have considered the arguments of the Appellant and the prosecution. I have also considered the fact that the tricycle was also retrieved, therefore the accused did not benefit from the crime. Again the accused persons did not waste the time of the court……….”. From the above statements by the court, it is clear that the learned counsel for the Appellant assertion that the trial court did not take into consideration mitigating circumstances before passing sentence on Appellant is not tenable. Nevertheless, it must be borne in mind that accused was charged together with one Peprah Gideon @ C.K. of the offence of stealing contrary to section 124 (1) of Act 29 of 1960, both pleaded guilty simpliciter to the said offence. However, in passing sentence, the trial court in exercising it discretion sentenced the said Peprah Gideon alias C.K. who was A1 in the case to 3 years imprisonment, whereas, the Appellant, who was A2 in the case was sentenced to 4 years imprisonment. Strangely the court, never gave reasons for these differences in sentence. I would therefore exercise my appellate power under section 30 (v) of courts Act, Act 459 of 1993 by setting aside sentence of four (4) years imprisonment imposed on the appellant and substitute in place a sentence of three (3) years imprisonment on the Appellant to take effect from the date of conviction. 12 | P a ge (SGD) ……………………………….. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT)