ADAMA VRS REPUBLIC (D15/05/2024) [2024] GHAHC 92 (23 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 23RD DAY OF MAY, 2024 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. SUIT NO: D15/05/2024 MUMUNI ADAMA ….. APPELLANT VRS THE REPUBLIC ….. RESPONDENT ================================================================ Accused/ Appellant Present Respondent Absent Mustapha Mahama for Respondent present Bernard Bediako Baidoo for Appellant present ================================================================ JUDGMENT ================================================================ This is an appeal against the conviction and sentence imposed on the Appellant by the district magistrate court at Akim Akwatia in the Eastern Region. The District court, Akim Akwatia, on the 4th Day of January, 2024 convicted the appellant on his own plea of guilty of the offence of Fraudulent breach of Trust contrary to section 128 of the Criminal Code, 1960 (Act 29). The appellant after his conviction was sentenced to eight (8) months’ imprisonment IHL. The appellant being dissatisfied, has brought this instant petition of appeal against his sentence. The particulars of the offence are that the Appellant aged 35 years in the year 2022 at Boadua in the Eastern District and within the jurisdiction of this court, did dishonestly appropriate cash the sum of GHc10,000.00, the ownership of which was invested in him as a trustee on behalf of Francis Marfo. 1 The brief facts of the case as presented by prosecution was that the complainant is an excavator operator and resident of Asamankese whiles the Appellant Mumuni Adama is a farmer and resident of Boadua. Sometime in the year 2022 complainant Francis Marfo bought a Hyundai Jet Taxi and hired the services of Afoakwa Frederick a witness in the case. Due to some mechanical problems, complainant who by then was at Kumasi asked his driver Afoakwa Frederick to sell the car at the cost of GH¢17,000.00. Complainant used GH¢7,000.00 and entrusted the balance GH¢10,000.00 with his trusted friend Mumuni Adama the Appellant through his driver Afoakwa Frederick because he was going to be away for 2 months. In April 2023 Complainant wanted the said money for a transaction but surprisingly all effort made to take the money from his trusted friend proved futile hence the report to police. Appellant in his Investigation Cautioned Statement admitted having been entrusted with cash an amount of GH¢10,000.00 but invested same in his farm business without the consent of his trusted friend Francis Marfo. The appellant herein is appealing his sentence on the contention that his sentence of 8 months IHL is rather harsh and excessive having regard to the circumstances of the case as presented by prosecution and the provisions of the Criminal and other offences Act (29/60). That The Record of Appeal shows that after the charges were read and explained to the Appellant in the Twi Language, he pleaded guilty simpliciter to the charge after which the facts of the case were read or presented to the Court by the prosecution. The court did not consider mitigating factors prior to sentencing him. The Appellant aggrieved with this conviction as well as the length of his sentence has mounted this present appeal on two specific grounds: The grounds of appeal as stated in the notice of appeal are that: 2 i. The conviction is against the weight of the evidence adduced in court ii. The sentence is harsh and excessive having regard to the circumstances of the case The counsel for appellant in his written submission stated that the learned trial magistrate after having heard the facts and explanation from the appellant did not take the appellant’s plea of mitigation before sentencing as follows: “In view of the above, I shall sentence the accused to eight months imprisonment in hard labour. The accused shall also refund to the complainant the rest of the money”. The counsel for appellant opted to abandon the first ground of appeal and to rather argue the second ground which is that the sentence was excessive and harsh. The counsel for appellant argued that in practice, whenever an accused is convicted on his own plea, the court conducts pre-sentencing hearing before sentence. The court does this by inviting the accused (or his counsel, if represented) to put in a word of mitigation and the prosecution to put in a word of aggravation. The prosecution may use the opportunity to talk abort previous conviction of the accused, a process that is consistent with section 300 of Act 30. However, per the record available to this Honourable Court in this case, the court did not conduct this all important exercise before sentencing the appellant. In the book, Pre-Trial Proceedings and Fair Trial Principles (Third Edition), written by Dennis Dominic Adjei, page 269, he stated as follows; “A court which fails to conduct pre-sentencing hearing is likely to take a decision which is likely to occasion substantial miscarriage of justice to either the accused or prosecution. Pre-sentencing hearing has become an accepted practice and a judge seeking to do justice shall religiously observe that practice. The courts dispense justice in accordance with the three and only three yardsticks, namely; statute law, case law and well-known practice in court”. 3 Thus the non-compliance of the trial judge resulted in a serious miscarriage of justice on the appellant in that he was denied and opportunity to address the court on mitigation of the sentence especially after he was convicted. Indeed, pre-sentence hearing has become a binding element in our criminal jurisprudence especially after the introduction of Ghana Sentencing Guidelines introduced by the Judicial Service of Ghana. The counsel for appellant again stated that, he admits that sentences are passed in accordance with law however he equally knows that a judge has some discretion to exercise within the limits of the law, save the offences where sentences are fixed by the law. In the case of THE REPUBLIC VERSUS LAMPTEY ALIAS MOROCCO [1974] 1 GLR 165, the accused was convicted of manslaughter and was sentenced to three years imprisonment simply by the fact that it was determined that the victim was rather the aggressor. Truly, this principle resonates with the position that each case must be considered on its own merits. In the present case, the appellant co-operated with the police by admitting that the fact that he had used some of the money being kept for the complainant and even promised to pay him. Consistent to his statement to the police, the appellant also made same statement to the trial court and promised to pay the remaining GHC8,000.00 within a month after paying the GHC2,000.00 he had with him in court. Sadly, true to the words of the appellant, even after his sentence he sent for the remainder GHC8,000.00 to be paid to the police which they acknowledge and have issued a receipt to same. The appellant’s counsel further argued that it is a well-known principle that the courts take into consideration the age of convict in sentencing him. The appellant is a 35year old man and therefore it was their humble expectation that the trial judge would consider not giving a custodial sentence to the appellant but give him the opportunity to reform and be accepted back into the society, as was in the case of FRIMPONG @ IBOMAN VERSUS THE REPUBLIC and also HARUNA VERSUS THE REPUBLIC [1980] GLR 189. 4 Another important factor the appellant believed the trial magistrate should have considered in not giving a custodial sentence to the appellant was that the appellant co- operated with the police and also showed his preparedness to make reparation to the victim which led him to plead guilty simplicita and thereby showing remorse. The counsel for appellant therefore prays this Honourable Court substitutes the custodial sentence for a less harsh one such as a fine. In Darkurugu versus The Republic [1989- 1990] 1 GLR 308 a high court confronted with a similar issue decided thus: “In lieu of the twelve months’ imprisonment imposed on the accused, I substituted the following sentence: the accused is to pay a fine of Ȼ1,000 and in default three months’ imprisonment with hard labour. The accused is also ordered to refund the sum of Ȼ19,000 to the complainant on his satisfying the sentence. Since the appellant has already completed the term of imprisonment, he is not liable to pay the fine. He is thus to be discharged forthwith from prison”. He also referred the court to the case BADU VERSUS THE REPUBLIC, HIGH COURT, 24 JULY 1970, DIGESTED IN (1970) C.C. 91 per Taylor J. (as he then was) which states as follows: “In my view when young men have their first brush with the law, it is expedient in the interest of the reformative aspect of punishment that the courts deal leniently with the offenders. If this is not done and young men on the very first occasion, they appear in court are sent to prison, it will be impossible to obtain reformation. They will come in contact with hardened criminals and they may be forever lost to decent society.” He finally prayed that the custodial sentence meted out to the appellant be set aside, although the appellant pleaded guilty and the appellant is acquitted and discharged. The counsel for respondent in opposing this application opined in his written submission that by the combined effect of Section 128 of Criminal Offences Act, 1960 (Act 29) and Section 296(2) of Criminal and Other Offences Procedure Act, 1960 (Act 30), the offence 5 of fraudulent breach of trust is a second-degree felony, with no punishment specified and a person convicted of the said offence is liable to a term of imprisonment not exceeding Ten (10) years. The above referred to provisions state as follows respectively: Section 128 of Criminal Offences Act, 1960 (Act 29) states “A person who commits a fraudulent breach of trust commits a second-degree felony”. Section 296(2) of Criminal and Other Offences Procedure Act, 1960 (Act 30), states “Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second-degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years”. However, the offence of Fraudulent Breach of Trust under Section 128 of Criminal Offences Act, 1960 (Act 29) is one of the few offences that were exempted by Section 296(5) of Criminal and Other Offences Procedure Act, 1960 (Act 30). Thus, a person convicted of a criminal offence under Section 128 of the Criminal Offences Act, 1960 (Act 29) for fraudulent breach of trust is liable to a term of imprisonment not exceeding Twenty-Five years. In effect, the law only proscribed a maximum punishment with no stated minimum which implies that the sentence is fixed by law and the Honourable Trial Court could have come under Section 297 of Criminal and Other Offences Procedure Act, 1960 (Act 30) and have imposed a fine in addition or in lieu of the sentence but opted not to do so.The Trial Judge was well within his rights to impose such a sentence on the Appellant. It is our learned position, respectfully, that for an offence with a maximum sentence of Twenty-Five (25) years, the sentence of 8 months is not necessarily excessive. Having established that the learned Judge imposed a sentence within the bounds of the law, the only contention left is whether or not the judge in this case exercised his 6 discretion judicially. In the celebrated case of MOHAMMED IBRAHIM KAMIL V THE REPUBLIC (2011) 1 SCGLR 300 the Supreme Court inter alia held thus: “In fact, sentencing either after conviction in a trial of first instance or, on appeal, is a matter entirely within the discretion of the judge or the court” There is no doubt whatsoever that sentencing is a matter of discretion of the trial judge; though that discretion must be exercised judiciously and judicially. The Appellant must satisfy the Appellate Court that the Trial Judge averted his mind to wrong or inadequate material or even failed to avert his mind to relevant factors. An appeal of this nature is not an exercise to substitute the discretion of the Trial Judge with the discretion of the Appellate Court. The burden to consider both mitigating and aggravating factors as held in ABU AND OTHERS V THE REPUBLIC [1980] GLR 294. “…in imposing sentence, it seemed that the court had a duty to consider all aggravating and mitigating circumstances…” In ASAAH ALIAS ASI V THE REPUBLIC [1978] GLR 1 it was held thus: “…In dealing with an appeal against sentence, an appellate court had to find out whether there were any mitigating factors which the trial judge took or failed to take into consideration. If the record revealed that he took all the mitigating factors into consideration before imposing the sentence, then his discretion could be said to have been properly exercised, and in the absence of any special circumstances, an appellate court would be slow to interfere with such sentence. On the other hand, if the record did not reveal that the trial judge took any such mitigating circumstances into consideration, then an appellate court would find out whether the mitigating factors were such that if the trial judge had averted his mind to them, he would probably not have imposed such a severe sentence…” There was no reference or consideration of any mitigating factors in the Record of Appeal. 7 As an Officer of the Court, there is a duty on the Respondent to promptly state that the Trial Judge did not consider any mitigating or aggravating factors before imposing its sentence except the failure to refund the money. The Counsel for the Appellant has advanced several authorities to support the argument that the courts should deal leniently with first time and young offenders. Counsel in his submissions strongly argued that the Appellant is a young offender and cites cases to support the imposition of a lenient sentence on such offenders.The Respondent concedes that at the very least the Appellant is in his most productive years and is a first-time offender. In fact, the Respondent would be slow to agree to this, because saying the Appellant is known or not is not borne from the record and any submission to this would be speculative. It is observed that the Appellant in his misappreciation of the law and a veiled attempt to adduce fresh evidence to the effect that he had completed and refunded all money’s to the \Police Prosecutor, Inspr. Hope Kofi Ahedor on behalf of the complainant has attached a copy of a Receipt dated 16th January 2024 for an amount of Eight Thousand Ghana Cedis (GH¢8,000.00). It should be noted that this receipt is attached to a motion for bail pending appeal which the Counsel for the Appellant had withdrawn. The withdrawal means that the motion together with all other processes and attachments has no legal effect. More so, this receipt necessarily has not even been introduced in the instant appeal strictly speaking. Whiles, the Respondent admits that the Trial Court after sentencing ordered the Appellant to refund to the complainant the rest of the money, the Court proceeded to sentence him before this was done and the alleged payment of an amount of Eight Thousand Ghana Cedis (GH¢8,000.00) ON 16TH January 2024 was not brought to the attention of the Court which was functus officio. The proper procedure was for the 8 Appellant to have taken steps to adduce this as fresh evidence on appeal since it was a step that happened after the completion of the case. The position of the law is settled on what ought to be done where a party seeks to adduce fresh evidence on Appeal. See; AZAMETSI V THE REPUBLIC [1974] 1 GLR 228. Firstly, the said document is not in evidence and cannot be relied on unless and until it is adopted to form part of the record and proceedings of the Court. The Appellant cannot make copious reference to a document that has no legal existence. Further, any such attempt to refer to and analyse such document is misguided. It is important to realize that these documents were not tendered before the trial court for an objection to be raised. The reason it does not form part of the record of Appeal because the Court has not seen them. Counsel for the Appellant should know better than to attempt to introduce these attachments in prosecuting his Appeal. The Respondent prays this Court to promptly strike out and rejects any attachment to the Appellant’s written submission as this alien practice should not be countenanced. See; OBENG V ASSEMBLIES OF GOD CHURCH, GHANA (2010) SCGLR 300. In determining the factors to consider before a Trial Court sentence an Accused Person ,the oft cited case of Kwashie v The Republic [1971] 1 GLR 488 at 493 is instructive. The Court held that: In determining the length of sentence, the factors which the trial judge is entitled to consider are: 1. the intrinsic seriousness of the offence; 2. the degree of revulsion felt by law-abiding citizens of the society for the particular crime. 3. The premeditation with which the criminal plan was executed; 4. The prevalence of the crime within the particular locality where the offence took place, or in the country generally; 5. The sudden increase in the incidence of the particular crime, and 9 6. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. See also; KINGSLEY AMANKWAH (ALIAS SPIDER\) VRS. THE REPUBLIC (CRIMINAL APPEAL NO. J3/04/2019) (2021) UNREPORTED SC (21 JULY 2021) and BANAHENE VRS. THE REPUBLIC (J3/02/2019) (2019) UNREPORTED (03 JULY 2019). The Respondent again refers to the Ghana Sentencing Guideline which sets out the general principles of sentencing and serve as a guideline to assist judges, magistrate, prosecutors and lawyers in their work. Whiles it is admitted that the Guidelines are not binding law, they serve as useful guide to achieve consistency as much as possible as no two cases are the same. These guidelines have been adopted numerously across the Courts in passing out sentences including the Honourable District Court, Akwatia Looking at pages 24 to 25 of the guidelines, it is obvious that a number of factors were not considered in imposing the sentence of Eight (8) months. The counsel for respondent finally prayed that the Appellate Court relying on its power under Section 30 of the Courts Act, 1993 and the case of ASAAH ALIAS ASI V THE REPUBLIC (SUPRA) should properly consider the sentence that would have been imposed had the Trial Courts averted its mind to all the aggravating and mitigating circumstances. The appellant opted to abandon his first ground of appeal, this court would address the second ground of appeal which is that the sentence was excessive and harsh regard to the circumstances of the case. Suffice it to say, that the trial judge has a wide discretion in imposing sentence once the sentence is within the limits stipulated by statute; whether mandatory or minimum penalties. The general principle is that a sentence of imprisonment, even when intended as a general deterrence must not be excessive in relation to the facts of the offence. The discretion of a judge in sentencing depends on the 10 judge’s assessment of the seriousness of the offence. All factors; mitigating or aggravating factors either standing alone or in combination with others are taken into consideration in arriving at this determination of the seriousness or otherwise of the offence. The Court should not simply substitute its own assessment of the punishment for that imposed by a competent court. The sentence of the trial court should be disturbed only when the superior court 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. See: APALOO V THE REPUBLIC (1975) 1GLR156, See also: SAMUEL AGOE MILLS ROBERTSON V THE REPUBLIC (2011) 80 GMJ 33 SC. A Court in imposing appropriate sentence where there is discretion, is required to consider each case on its own merits. The principles upon which a court acts on an appeal against a sentence of an appellant are well settled. The appellate court will interfere with a sentence only when in its opinion that sentence is manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle. Also where it is argued that the appellant was a first offender, of previous good character and that the sentence was excessive having regard to the value of the items/property appropriated in question. SEE: APALOO & ORS VRS THE REPUBLIC [1975] 1GLR 156. SEE ALSO: RAHIM IBRAHIM & 3 ORS. V.THE REPUBLIC (2017) JELR 07062 (CA) COURT OF APPEAL · H2/2/201 · JULY 18, 2017 · GHANA (UNREPORTED) The Supreme Court provided the guidelines for both trial courts and appellate courts on matters that should be taken into consideration before an appropriate sentence is imposed. In passing sentence a court may consider the offence and the offender as well as the interest of society. See: KAMIL V THE REPUBLIC, [2011] SCGLR 300. For mitigating factors, the courts often would take into consideration the age of the accused, the conduct of the convict before he was charged and arraigned before the court, how the convict co-operated with the police in the investigation, his preparedness, to 11 make reparation to the victim, pleading guilty to the offence and showing remorse. The court also takes into consideration in imposing an appropriate sentence whether the proceeds of the crime were retrieved and the convict did not benefit from the crime. See: KWASHIE V THE REPUBLIC [1971] 488. SEE ALSO: IMPRAIM V THE REPUBLIC [1991] 2GLR 39 See Also: Criminal Procedure And Practice In Ghana, (2018) written by Dennis Dominic Adjei, pages 377, 388-399 In the IMPRAIM case (SUPRA) it was held, inter alia, that: “… In deciding whether a sentence was too severe and ought to be interfered with or not, the relevant consideration was not the limit of the trial court’s sentencing powers …..but rather the gravity of the offence, taking into consideration all the circumstances of the offence. Matters such as the age of the offender, his health, his circumstances in life, the prevalence of the offence and the manner of commission of the offence would all be taken into consideration. If there were no special circumstances in favour of a lesser sentence and the court decided to impose the maximum sentence permissible under its criminal jurisdiction, the presumption in favour of the correct or proper exercise of discretion must prevail…” Where the appellate court is satisfied that there are sufficient grounds to interfere with the judgment of the lower court, shall hear the appeal and determine it in accordance to law. The high court in situations it deems it necessary to take further evidence either on its own motion or by an application of any of the parties; shall record the reason for the further evidence and continue to take it or in the alternative refer the parties to the trial lower court. The high court would then direct the said court to take the additional evidence and certify that evidence to the high court. The high court shall then proceed to consider the additional evidence together with the evidence on the record of appeal and deliver its judgment in writing. The appellate courts in recent times have permitted the addition of additional evidence to clear doubts where the justice of the case requires it; for instance in cases that forensic 12 evidence, DNA is required to resolve. The rigid rules for admission of fresh evidence has been watered by the introduction of scientific evidence to exonerate an accused wrongly convicted. Save for these the appellant is required on appeal to apply the settled procedure to adduce fresh evidence such as in this case where the accused has since refunded the full amount to the complainant though after the conviction and sentence of the accused. Counsel for respondent cannot through the backdoor and/ or disingenuity introduce fresh evidence without following the required procedure to enable the respondent object and/or cross examine on the veracity or otherwise of the evidence. See Also: Criminal Procedure And Practice In Ghana, (2018) written by Dennis Dominic Adjei, pages 455, 453-455 Where the justice of the case requires it, an appellate court may alter the findings, affirm the findings but may maintain the sentence or reduce or increase it. An appellate court can therefore affirm the findings or sentence or both without reducing or increasing the sentence or it may alter the nature of the sentence. See: section 30(a)(ii)(iii) of the COURTS ACT 1993 (ACT 459). See also: Dennis Dominic Adjei, Criminal Procedure and Practice in Ghana, page 468. The learned trial judge from the record of appeal clearly did not consider the plea of mitigation of appellant herein as none was taken prior to imposing a term of imprisonment of eight (8) months imprisonment IHL upon the Appellant. From the foregoing, this honourable court having taken into consideration all the above, finds the sentence of appellant to be excessive having regard to the circumstances of the case and is therefore inclined to alter the nature of the sentence of appellant as follows: accused/appellant is sentenced to a fine of 200 hundred penalty units or in default to a term of six (6) months IHL. The accused/appellant to also refund the outstanding monies to complainant, failure to do so the complainant to take civil legal steps to recover same. This takes effect from the day of initial sentence which is 4th January 2024. 13 H/L MRS. RUBY NAA ADJELEY QUAISON JUSTICE OF THE HIGH COURT 14