KWAKYE VRS REPUBLIC (C16/010/2024) [2024] GHAHC 231 (7 June 2024)

1 | P a ge IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON FIRDAY THE 7TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. CC16/010/2024 RICHMOND TAKYI KWAKYE …………. CONVICT/APPLELANT VRS: THE REPUBLIC ………. RESPONDENT ================================================= JUDGEMENT ============================================= This appeal is against the sentence by the Techiman Circuit Court of the convict/Appellant pursuant to leave granted by this Honourable court on 29th August, 2023 by this Honourable court. The Appellant was charged with the offence of stealing contrary to section 124 (1) of the criminal offences Art, Act 29 of 1960. Upon his arraignment before the Circuit Court, Techiman then presided by His Honour Alexander Graham (as he then was) Appellant pleaded not guilty to the said offence of stealing. That after trial appellant was found guilty and was accordingly convicted and sentence to a prison term of 10 years with hard labour by the said Techiman Circuit Court on 20th day of November, 2020. It is against the sentence that the appellant has with the leave of the Honourable Court granted on 29th August, 2023 has launched the instant appeal. 2 | P a ge Ground(s) of Appeal (a) That the sentence was harsh and excessive having regard to the circumstance of the case Facts of the case Complainant is a trader and resident of Solballa a subburd of Tumu. Accused is also a farmer and resident of Ampoma near Jema. Accused has opened several bank accounts with several banks using different names that he does is that, he always dressed nicely and pose as a bank staff and move from bank in various towns such as Techiman, Wenchi, Nkoranza and Kintampo whilest inside the banking hall and see any illiterate coming to deposit he pretends to offer assistance as a bank staff. By so doing he will write his account name and number on the pay-in-slip for the illiterate to go and deposit the money with the bank instead of writing the actual details of the person who is supposed to receive the money. As soon as the money hits the account of the accused, he will rush to a different branch to withdraw the money from his account. On 1st June, 2027 at about 4:00pm, the complainant went to GCB market branch to deposit cash sum of Ghc5,940.00 into the bank account of Dinie Kubura 0021010041680 to buy goods and send to her in Techiman to sell. The complainant who is illiterate got to the bank and met the accused person, when the accused realized that the complainant could not fill the pay-in-slip properly, he approached her and as a bank staff who was going to help her fill it correctly. The complainant gave the account details of Kubura who is supposed to receive the money to the accused person on a piece of paper. The Accused instead of writing Dine Kubura’s Account Number 0021010041680 details write account NO. 724106009107 belonging to the accused for the complainant. Because she could not read and write she also gave the money to 3 | P a ge the cashier and paid in cash the sum of Ghc5,940.00 accused after realizing the money has hit his account left GCB market branch and went to the main branch to withdraw Ghc1,000.00 and on the following day 02/06/17 withdrew Ghc4,000.00 accused from that time went into hiding. On 20th July, 2028, the police came before this court for an ex-parte motion praying the court for an order for disclosure of information on the GCB bank account No. 72106009107 which the accused use to steal the money. The order was granted and served on the bank. The bank obliged and provided police of the necessary information. The name of the Account holder was given as Kwaben Amoasi with House Number B-118, behind the police station Aworowa and passport No. H2191128 several efforts were made to trace the accused with the given information but all to no avail. On 13th April, 2028 the Accused went back to GCB market branch to repeat his act. Unfortunately for him the operations manager of the bank identified him when he realized that he has been identified, he took to his heels. He was given hot chase and arrested in the Techiman market. Accused was sent to the police station and detained for investigation. On 16th April, 2018 at about 10:00am the complainant came to the police station and identified the accused person as the one who stole her money on 1st June, 2017. After investigations accused was charged with the offence as stated on the charged sheet and he is currently before the court for trial. Arguments of the Counsel for the Appellant; Arguing on the single ground of appeal that is; “The sentence was harsh and excessive having regard to the circumstance of the case”. He starts by urging on the appellate court, that appeal is by way of rehearing and therefore the appellate court, that appeal is by way of rehearing and therefore the 4 | P a ge appellate court takes into consideration entire record of proceeding and quoted the cases of Dexter Johnson Vrs. The Republic (2016) 99 GMJ 1 and Takwa Vrs Anarfi (2011)1 SC GLR 556. He further argues that although the sentence meted out the appellant is or was within the sentencing range for the offence of stealing however, since the offence did not provide for minimum the appellant can take advantage of sentence range and appeal to the appellate court for mercy and forgiveness because of that window of discretion of reviewing the sentencing by way of reduction. He further argues that the court has given guides to consider in imposing sentences he cited three cases in support of this assertion namely Kwashie Vrs. The Republic (2001) 30 GMJ 1 and stated the guides as follows; (a) The intrinsic ………..of the offence (b) The degree of resul………. Felt by law abiding citizens of the society for a particular crime. (c) The premeditation with which the criminal plan was executed. (d) The prevalence of the crime within a particular locality the offence took place or in the country generally. (e) The sudden increase is the incidence of a particular crime and (f) The mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. He further argues that these guidelines or factors are only broad factors upon which the factors subsumed under. The learned counsel for the Appellant also argues that although being a first time offender is not a defence, but however, a mitigating factor which the court should take into consideration passing sentence of an accused and that first time offenders 5 | P a ge must normally be given a second opportunity to reform and play his or her role in society as a useful and law abiding citizen and that is why it is desirable for first time offenders to be treated differently when a court considers sentence to be imposed and that public interest is not advanced by familiarizing young persons with prison life, certainly not for long period. He buttressed this point with the following authorities Frimpong @ iboman Vrs The Republic quoted supra, Torto Vrs. The Republic (1971) 1 GLR 342 @ 347, Dabla & Ors. Vrs. The Republic (1980) GLR 500-520 @ 519 and Darkurugu Vrs. The Republic (1989-90) 1 GLR 308 @ 321 He then contended that the is years’ sentence imposed by the trial court was rather on the high side and may likely serve to divorce the appellant from society completely and also likely to frustrate the convict’s opportunity to live meaningful life. The learned counsel for the appellant, then alluded to the fact that stealing is not grave offence as compared to 1st degree felony which was part of the appellant charge(s). Finally, the learned counsel was done a great injustice, when the court did not go into enquiry as to whether there was previous conviction against the appellant, the mere statement by the police prosecutor that the Appellant is known without proper enquiry into it by the trial court, before passing the said enhanced sentence of 10 years on the appellant amounted to injustice to the appellant and also contrary to section 117 of the criminal procedure Act, Act 30 of 1960. And that had not been to called being known he might have given lesser sentence or dealt vemently with the said trial court. And that according to the learned counsel for the appellant, since this appellate court hands are not faltered, this court has the opportunity to correct the wrong of the trial 6 | P a ge court by reducing the said sentence of 10 years IHL imposed on the appellant by the trial court. In conclusion learned counsel for the appellant pleaded with this appellate court to reduce the sentence of 10 years IHL imprisonment imposed on the appellant by the trial Circuit Court. Arguments of counsel for the Republic/Respondent In reply the learned counsel for the Republic in his written argument stated that the appellant was charged with the offence of stealing contrary to section 124 (1) of Act 30 of 1960, and that the offence of stealing is 2nd degree felony. However, according to the learned senior state Attorney, counsel for the Republic, although Act 29 does not prescribe the punishment which shall entail when one is found guilty of stealing, nevertheless section 296 (5) of the criminal procedure and offences Act, Act 30 provides that; “A person convicted of a criminal offence under any of the following sections of the criminal offences Act, Act 29 of 1960 that is to say, sections, 124, 128, 121, 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”. According to the learned senior state Attorney the conviction and the sentencing of the appellant by the trial Circuit Court cannot be faulted since it had discretion to impose a sentence of imprisonment up to 25 years. Therefore, the trial Circuit judge having exercise its discretion within the continues of the law cannot be faulted. Learned senior state Attorney for the Republic also argues in written submission by quoting Jones Dotse JS C in the case of Kwaku Frimpong @ Iboman Vrs. The Republic 7 | P a ge quoted supra. That concerning the factors that the court should consider in sentencing an accused person, it stated inter alia that; “……….the measuring rod or standard of any circumstance is the offence creating statute and the punishment provided therein”. He further posited that sentences have been held to serve five-fold purpose. According to the learned senior state Attorney for the Republic. These five-fold purpose were laid down in the case of Kwashie Vrs. The Republic and adopted by Kamil Vrs. The Republic quoted supra and that looking at the record of Appeal, the conduct of the appellant was reprehensible and society ………in no uncertain terms of such a behavior by the Appellant. Indeed, according to the learned senior state Attorney looking at pages 1-2 of the Record of Appeal, the appellant beautifully orchestrated the plan to steal from illiterate customers of GCB bank. He pretended to assist such customers and ended up having their monies transferred into his account, he further wrote as follow; “My lord such a person who wakes up and plan to dupe the unsuspected public instead of taking to hard work to earn a living does not deserve the merely of the court at all”. Learned senior state Attorney also in his written submission says that looking at page 49 of the Record of Appeal the prosecution made the court aware of the fact that the Accused is known for the offence of stealing and the accused never challenged this, hence according the learned senior state Attorney the previous conviction should not be over looked by this Appellate court and that sentence imposed on him must not be tempered with. 8 | P a ge Finally, the learned senior state Attorney referring to the case of Robertson Vrs. The Republic (2013 - 2014) 2 SC GLR 1505 stated that the Supreme Court had set out the legal parameters for interference by an appellate court as follows; “The principles upon which the court would act on an appeal against sentence were it would not interfere with a 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 would interfere only when it was of the opinion that the sentence was manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle…… He then therefore submitted that, having regard to the circumstances of the case and the ……………operadu… ….of the appellant, the sentence of ten (10) years IHL cannot be said to be excessive and that the sentence well commensurate the offence committed by the appellant. The learned senior state Attorney then concluded it is his humble submission that the appellant appeal should be dismissed in order to send right signal to the appellant and likeminded persons, that crime does not pays. OPINION OF THE 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 record of appeal and make it own assessment of the case as though. It was the trial court, where the court below comes to the right conclusion based on its judgement is not disturbed. 9 | P a ge On 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. Attaa (1972) 2 GLR and Apaloo Vrs. The Republic (1976) 1 GLR 156. In this appeal, the appeal is not against conduction but rather the sentence, therefore, as appellate court I must look at the sentence passed, the facts of the case whether the trial Circuit Court has the right to pass the said sentence and determine whether the sentence passed was harsh and excessive looking at the circumstances of the case. First of all, it must be noted that under Ghanaian law, it is not every punishment that the court can impose on a convicted person under section 294 of Act 30, criminal procedure punishment, may be inflicted for an offence namely; Death, fine imprisonment payment of compensation, Detention and liability to police- supervision. It must be noted that the Appellant was charged and convicted on the offence of stealing contrary to section 124 (1) of Act 29 of 1960 as amended. The question then is what kind of punishment can a trial judge impose on a person convicted of stealing in our instance case. In fact section 296 of Act 30, specifically subsection ‘5’ states as follows; “A person convicted of a criminal offence under the following sections of the criminal offences Act, Act 29 of 1960 that is today sections; 124, 128, 131, 138, 145, 152, 158,165, 230, 252, 253 and 260 liable to a term of imprisonment not exceeding twenty-five years”. From the above, it is clear that, since appellant was convicted under section 124 of Act 29 of 1960 the minimum sentence could have been 1 day and the maximum could have been 25 years. Looking at the sentence passed on the Appellant by the trial 10 | P a ge Circuit Court which is 10 years, was clear that the trial court was within the sentence limit allow by law. Nevertheless, the learned counsel for the appellant avers that the said sentence of 10 years IHL was harsh and excessive under the circumstance of the case because the trial judge did not take into consideration mitigating factors and accepted the fact that the Appellant was known without allowing it to be proved by prosecution in accordance with the law. It is important to note that the essence of circuit justice is the punishment of persons who violate the criminal law, various forms of punishment are provided by our laws. The judges are now fully aware that fundamental purpose of sentencing is that of contributing along with other crime prevention measures to the respect of the law and maintenance of just, peaceful and safe society. This purpose is met by the imposition of just penal sanctions that reflect the usual array of sentencing objective. Thus even sentence must be consistent with and informed by some penological goals and sentencing principles. However, in spite of this the passing or meting of punishment such as a sentence to serve a prison term is at the discretion of the court. Indeed, in the celebrated case of Haruna Vrs. The Republic (1980) GLR 189 Taylor J (as he then was) Stated that; “The question of sentence is a matter of discretion with all courts of justice the discretion however, is exercisable on well”. The question then is what is discretion? In the case of Sharp Vrs. Wakefield (1891) AC 173@ 179 Lord Halsbury LC defines discretion as follows; 11 | P a ge “Discretion means when it is said that something is to be done to the rules of reason and justice 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 be exercised within the limit, to which an honest man competent to discharge of his office ought to confine himself”. Therefore, there is no gain saying that the trial Circuit Court in passing 10 years sentence on the appellant exercised his discretion within the confines of the law. Nevertheless, the appellant says, that the sentence is harsh and excessive taking into consideration the Circumstances of the case. However, it must be appreciated that when an appellant complains about harshness of a sentence, he ought to appreciate that every sentence is supposed to serve five-fold purpose, namely to be punitive. Calculated to deter others, to reform the offender, to appease the society and to safeguard the country – see the case of Kamil Vrs. Republic supra. Indeed, in the case of Kwashie Vrs. The Republic (1971) 1 GLR 88 @ 493 in determining the length of sentence to be imposed on accused, the factors are given as follows; (1) The intrinsic seriousness of the offence (2) The degree of revulsion felt by law abiding citizens of the society from that particular crime. (3) The pre-meditation with which the criminal plan was executed. (4) The prevalence of the crime in the locality or country as a whole. (5) The sudden increase in the incidence of that particular crime. (6) Mitigating or aggravating circumstances of youth, good character and violent manner the crime was committed. 12 | P a ge In passing the sentence of 10 years imprisonment IHL on the appellant this is what the trial court said; - See page 69 of the Record of Appeal “After listening to the accused plea for mitigation of sentence. Accused is sentence to ten (10) years imprisonment with hard labour”. However, prior to this on 20th day of November, 2020, this is what transpired at the court, see page 49 of the Record of Appeal. BY COURT: Accused is convicted accordingly Any plea for mitigation of sentence. I am pleading for mercy. It would never happen again. Prosecution:- Accused is known on 16th May 2014 accused was convicted in this very court for the offence of stealing. The case number 200/14 and the case title is Republic Vrs. Richmond Takyi Kwakye accused was convicted and fined 100 penalty units or default three years imprisonment with same modus. BY COURT: Accused is convicted. Accused would be handed an enhanced sentence. Accused is sentenced to ten (10) years imprisonment IHL. I believe that the Accused Appellant was given an enhanced sentence of 10 years by the trial Circuit due to the fact that according to the police he was known to the law on had previous conviction. However, the quest is a mere assertion that the Appellant was known and the he was convicted by the same court on 16th May, 2014 of the offence of stealing and state the case number as 200/14would it be enough to prove the previous conviction? 13 | P a ge Indeed, from the record of Appeal, we were not told whether the court which convicted him on the 16th May, 2024 was differently constituted or was the same as the trial court. Section 117 (1) of Act 30 of 1960 states as follows; (1) In an enquiry, trial or other proceedings under this Act, a previous conviction or acquittal may be proved, in addition to any other mode provided by any other enactment; (a) By an extract certified and personally signed by the officer having custody of the records of the court in which conviction. The conviction or acquittal was recorded to be a copy of the sentence or order or acquittal; or (b) By certificate signed by the officer in charge of the prison in which the punishment or part of the punishment was inflicted or by production of warrant of commitment under which the punishment was suffered together with, in each case, evidence as to the identity of the Accused with the person to convicted or acquitted. (2) A certificate in the form prescribed by the minister responsible for the police signed personally by an officer appointed by the minister in that behalf who has compared the finger prints of an accused person with the finger prints of the person previously convicted is prima facie evidence of the facts set forth in the certificate where it is produced by the prints of the accused. I believe that these provisions were put in the law in order to safe guard the abuse of the right of accused person by the police prosecutors. From the above it was clear that a mere pronouncement by the police that the accused/Appellant is known without producing certificate to that effect was null and 14 | P a ge void and the trial Circuit ought not to have taken into considering by passing enhanced sentence on the appellant. Although, I perfectly agree with the learned Senior State Attorney that the conduct of the appellant was reprehensible and therefore passing of 10 years imprisonment on the appellant would send right signal to the accused/ Appellant and likeminded persons. Nevertheless, a duty is imposed on the trial Circuit Court to have considered apart from aggravating factors other mitigating factors which inure to the benefit of the appellant, in spite of the distasteful behavior of the appellant. All that the court said any plea for mitigation of sentence. I am pleading for mercy. It will never happen again. BY COURT: - Accused is an ex-convict accused would be handed an enhanced sentence. Accused is sentence to ten (10) years imprisonment IHL – see page 49 of the record of Appeal. From the above it is clear that the trial Circuit Court did not take into account any mitigating factors which would have benefitted the appellant before passing the sentence of 10 years imprisonment on the appellant. In the case of Abu & Ors Vrs. The Republic (1980) GLR 294-304 it ws held by the court that; “In imposing sentence it seems to me that the court has a duty to consider all aggravating and mitigating circumstance”. Perhaps the pronouncement by the police that the Appellant was known might have blinded the trial judge in considering any mitigating factors that might have ……….to the benefit of the appellant. 15 | P a ge From the above analysis of the law and the factors although the trial Circuit Court in passing the sentence on the appellant exercised his discretion judiciously, nevertheless, I would agree with the learned counsel for the appellant that, the sentence of 10 years imprisonment on the appellant was harsh and excessive under the circumstance of the case, especially had it not been the enhance sentence, the judge would have given the appellant lesser sentence. Albeit the said enhanced sentence was exercised on wrong principle of law. I do therefore, allow the appeal on sentence and substitute therefore sentence of 8 years instead of 10 years to commence from date of conviction. (SGD) ……….………………………. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) Cay/…