Kwabena Vrs REPUBLIC - Republic (C F15/12/2024) [2024] GHAHC 301 (22 May 2024)

INTHE SUPERIORCOURT OF JUDICATURE INTHE HIGHCOURT OF JUSTICEHELDATHOHOE ON WEDNESDAYTHE 22NDDAY OF MAY 2024BEFOREHER LADYSHIP JUSTICEJOAN EYI KING, HIGH COURT JUDGE SUITNO. F15/12/2024 ADAMUKWABENA - APPELLANT VRS THEREPUBLIC - RESPONDENT APPEAL-JUDGMENT The appellant herein and others were tried by the Circuit Court, Dambai on 6th Day of December 2023 on a charge of Conspiracy to commit crime to wit Assault contrary to Section 23 and 84 of the Criminal and Other Offences Act 1960 (Act 29), Assault contrary to Section 84 of Act 29, Causing Unlawful Damage contrary to Section 172 of Ac 29, Stealing contrary to Section 124 of Act 29, Possession of Fire Arm and Ammunition without lawful authority contrary to Sections 11 and 26 of Arms and Ammunition Act 1972 (NRCD 9) (As amended by) the Arms and Ammunition (Amendment) Act, 1996 (Act 519) and Arms and Ammunition (Amendment) Act, 2001(Act 604). They were allconvicted ontheir ownpleaand sentenced accordingly. The appellant alone was convicted on his own guilty plea on the charge of Stealing contrary to Section 124 of Act 29 and sentenced to a term of 36 months in prison. It is this sentence that the appellant is appealing against on the ground that the sentence of 36monthsinprisonis harsh. 1 The statement and particularsofoffence reads: STATEMENTOF OFFENCE Stealing contrarytoSection 124oftheCriminal and OtherOffences Act,1960(Act 29). PARTICULARS OF OFFENCE AdamuKwabena, 35years(Farmer)forthat youon01/12/2023 atKatafua near Kpelema in the Oti Circuit in the Republic of Ghana and within the jurisdiction of this court, you dishonestly appropriated one cutlass value Ghc150.00, a Techno mobile phone value Ghc250.00 and a black hung bag containing physical cash the sum of ghc1500.00 and twoidentification cardsalltotalling Ghc1900.00 the propertyofAdemuMohamadu. The appellant pleaded Guilty and was convicted and sentenced to 36 months prison termIHL. The Trial Judge stated as follows: “All the counts run consecutively and the single barrelgun to be produced within 24hoursand when produced to bedestroyed by the police. The accused persons to compensate the 3rd complainant with GHc6,000.00. All the retrieved items be returned to the complainants.” The appellant herein being aggrieved by this sentence caused his lawyer to Appeal to this Courtagainst the sentence with thefollowing grounds ofappeal: 1. The sentence of36monthsprison termIHL isharsh. 2 FACTSOF THE CASE The facts of the case as per the Charge Sheet is that the complainants Ali Batsuyor, Ademu Mohamadi and Kadija Ibrahim and the convicts are cattle farmers who stay at Katafua a village near Kpelema. The convicts who claimed have witnessed series of destructions on their various farms by cattle, suspected the 1st complainant to have owned the cattle that caused the damages to their farm. As a result the convicts planned to act together with a common purpose to attach any Fulani Headsman they see around the Kataful village. On 01/12/2023 at 5.30p.m. the convicts mobilised themselves and armed with cutlasses and a single barrel gun, without justifications invaded the house of the complainants, attacked and subjected them to severe beatings. In the process, the appellant succeeded in stealing a cutlass, a techno mobile phone all valued at Ghc400.00 and a black hang bang containing cash the sum of Ghc1500.00 and two identification cardsfromthe 2nd complainant. The convicts also destroyed allthe rubber bowls, bucket and the thatched houses belonging to the complainants. The convicts were arrested and in their respective investigative caution statements, admitted the offences. After investigations, they were charged with the offences and put before the Circuit Court, Dambai. The appellant and the other convicts pleaded guilty and they were convicted ontheir ownplea. ARGUMENTS BY COUNSELFOR THE APPELLANT Counsel for the appellant rehashed the facts of the case. According to counsel, the appellant and the othersuponconviction ontheir ownplea,were sentenced as follows: “COUNT1 - A fine of Ghc500.00 each or in default serve a prison term of 12 montheach. COUNT2 - A fine of Ghc1,000.00 each or in default serve a prison term of 14 monthseach. 3 COUNT3 - A fine of Ghc1,000.00 each or in default sere a prison term of 14 monthseach. COUNT4 - A fine of Ghc1,000.00 each or in default serve a prison term of 14 monthseach. COUNT5 - A fine of Ghc2,000.00 or in default serve a prison term of 24 months each. COUNT6 - 36monthsinprisonIL. And thesentences are torunconsecutively. Counsel for the appellant submitted that it is this custodial sentence of 36 months that they are praying the court to reduce or in the alternative the sentence be reviewed to a fine taking into account the three children who are minors with an unemployed wife left behind by the appellant. Counsel further submitted that the appellant has since paid an amount of Ghc6,700.00 inclusive of compensation to the complainant on the 7th day of January 2024 as per the receipts attached marked Exhibit A. That a guilty plea itself calls for mitigation and prayed the court to exercise its discretion in mitigating the sentence. That the appellant as a young man had been deterred enough and likely he would not commit similar offences and prayedtobe giventhe opportunity toreformoutside the prisonwalls. Counselfurther submitted thatthe court hasthe discretioninimposing sentence so long as the sentence is within the statutory limits imposed on the court and that the exact sentence passed in most cases depends onalargeextent uponthe discretion ofthe court as well as its statutory jurisdiction and cited the case of KOMEGBE vrs THE REPUBLIC [1975] 2 GLR 170 where the court adopted the measuring of discretion as propounded by Lord Halsbury LC in SHARP vrsWAKEFIELD[1891] AC173AT179. 4 Counsel again referred to Article 296 of the 1992 Constitution and submitted that discretionary power enjoins that same shall be deemed to imply a duty to be fair and candid and the exercise of discretionary power shall not be arbitrary, capricious or bias either by resentment, prejudice or personal dislike and shall be in accordance with due processoflaw. Counsel further submitted that as a general rule the court is not bound to give reasons for the sentence it passes. However, where the sentence is quite close to the maximum limit and extremely high the court is supposed to offer reasons for its decision and cited the case of GUNDAA vrs THE REPUBLIC [1989-90] 2 GLR 50. That the court is enjoined in passing sentence to consider the personal circumstance of the convict. That the appellant is a first offender and has no previous conviction which should have been taken into consideration by the court in mitigating the sentence and pray that the court temperjustice with mercyand grantthe appellant his freedom. On the other hand, counsel for the respondent also rehashed the facts of the case. Counsel referred to Section 124(1) of Act 29, the charge against the appellant and Section 296(5) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Counsel submitted that the sentence of 36 months imposed on the appellant is well within the law and not harsh having regard to the conduct of the appellant. Counsel referred to the case of KAMIL v REPUBLIC (Criminal Appeal No. J3/3/2009 dated 8th December 2010) where Ansah JSC stated in relation to the harshness or otherwise of a sentence as follows: “Where an appellant complains about the harshness of sentence, he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely to be punitive, calculated to deter others, to reform the offender, to appease the society andto beasafeguard to this country.” Counsel contends that the flagrant disregard of the law by the appellant and the other convicts, to march to the house of the complainants to assault them and cause damage 5 to their properties. However, the appellant decided to steal their properties in addition leaving the complainants in a state of destitute. That the sentence imposed by the Circuit Court Judge, the Judge had the opportunity to observe the demeanour of the appellant and set out to impose a custodial sentence to serve as deterrence to others should not be disturbed. Counsel again referred to the case of APALOO & OTHERS vrs THE REPUBLIC [1975] 1GLR156 where it was statedthat “The principles upon which the court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if member 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 opinion that the sentence was manifestly excessive having regard other circumstance ofthe case orthat the sentence is wrong in principle.” That counsel for the appellant admitted that the sentence imposed on the appellant is minimum and therefore submit that the sentence should not be interfered with as same iswell withinthe lawand notharsh. Counsel further submitted that counsel for the appellant referred to the appellant’s family as being three minor children and an unemployed wife for which reason the sentence should be reduced, counsel argues that this is not a reason for the court to exercise its appellate jurisdiction in reducing the sentence imposed and that the appellant ought to have thought about the difficulties his wife and children would have been in before he started the criminal enterprise. Counsel supported this with the case of DABLA AND OTHERS vrs THE REPUBLIC [1980] GLR 501 as follows: “The adverse effect the conviction of the appellants hadon their respective families was an irrelevant consideration. Consequently, the court would not consider it a mitigating factor in aplea forreduction ofsentence.” 6 Counsel further submitted that although there is nothing on the record of appeal to show that the Judge took into consideration any mitigating factors in sentencing the appellant, they are of the opinion that the sentence imposed would not have been any different even if the court took into consideration any mitigating factors because the sentence imposed is reasonable and commensurate with the actions of the appellant. Counsel thereby referred to the case of ASAAH ALIAS ASI v THE REPUBLIC [1978] GLR 1 which stated as follows: “In dealing with an appeal against sentence, an appellate court had to find 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 factor 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 adverted his mind to them he would probably nothaveimposed such asevere sentence.” Again, counsel stated thatalthoughthe appellant didnot stateas aground ofappealthe fact that the court ordered that the sentences imposed on him should run consecutively instead of concurrently, as appeal is by way of rehearing the appellate court has authority to comment on it and cited the case of DEXTER JOHNSON v THE REPUBLIC[2011] SCGLR 601at699tosupport it. Counsel again referred to Section 302 and 303 of Act 30 and argued that it is evident from the facts that the injuries sustained by the complainants and the damages caused to their properties emanated from the same action of the appellant and the other five convicts. Since all the counts emanated from one criminal act, the Judge should have pronounced the sentence to run concurrently instead of consecutively as held in the 7 case of TETTEH ASAMADEY alias OSAGYEFO v COMMISSIONER OF POLICE [1963] 2 GLR 400 as follows: “Where a person does several acts, each of which is an offence and the several acts were done in the execution of one grand design,, the prosecution may elect either (i) to charge the person with only one offence, in which case, on conviction, the court is entitled to take into consideration the rest of the acts in passing sentence, or (ii) to charge the person with the several acts, in such case if the person is convicted the sentence for each act must concurrently run with the others emanating from the one grand design. In this case though the appellant committed severaloffences, they were all committed outofone design.” Counsel concluded that per the provisions stated and the decided cases the sentence of 36monthsisnot harshand thereforethe appealshould be dismissed. ANALYSISANDEVALUATION This is an appeal against the Judgment of the Circuit Court, Dambai in the Oti Region. The appellant and five others were arraigned before the Dambai Circuit Court on a charge of Conspiracy to commit crime to wit Assault contrary to Section 23 and 84 of the Criminal and Other Offences Act 1960 (Act 29), Assault contrary to Section 84 of Act 29, Causing Unlawful Damage contrary to Section 172 of Ac 29, Stealing contrary to Section124 ofAct 29,Possession ofFire Armand Ammunitionwithout lawful authority contrary to Sections 11 and 26 of Arms and Ammunition Act 1972 (NRCD 9) (As amended by) the Arms and Ammunition (Amendment) Act, 1996 (Act 519) and Arms and Ammunition(Amendment) Act, 2001(Act 604). On their maiden appearance before the court on 6th day of December 2023, their plea were taken and they pleaded guilty and were all convicted on their own plea and 8 sentenced accordingly. The appellant alone was convicted on the charge of Stealing contrary to Section 124 of Act 29 and sentenced to a term of 36 months in prison. It is this sentence that the appellant is appealing against on the ground that the sentence of 36monthsinprisonis harsh. The facts which led to the conviction are as per the facts attached as follows: The complainants Ali Batsuyor, Ademu Mohamadi and Kadija Ibrahim and the convicts are cattle farmers who stay at Katafua a village near Kpelema. The convicts who claimed have witnessed series of destructions on their various farms by cattle, suspected the 1st complainant to have owned the cattle that caused the damages to their farm. As a result the convicts planned to act together with a common purpose to attack any Fulani Headsman they see around the Kataful village. On 01/12/2023 at 5.30p.m. the convicts mobilised themselves and armed with cutlasses and a single barrel gun, without justifications invaded the house of the complainants, attacked and subjected them to severe beatings. In the process, the appellant succeeded in stealing a cutlass, a techno mobile phone all valued at Ghc400.00 and a black hang bag containing cash the sum of Ghc1500.00 and two identification cards from the 2nd complainant. The convicts also destroyed all the rubber bowls, bucket and the thatched houses belonging to the complainants. The convicts were arrested and in their respective investigative caution statements, admitted the offences. After investigations, they were charged with the offences and put beforethe Circuit Court, Dambai. GROUNDOF APPEAL The sentence of36monthprisontermI.H.L is harsh. In arguing the appeal, counsel for the appellant contended that the appellant is a sole breadwinner of the family and so the court should take into account the three children 9 who are minors with an unemployed wife left behind by the appellant as same will jeopardize the maintenance of the family and the children. Counsel further argued that upon the conviction and sentence of the other charges, the appellant has since paid an amount of Ghc6,700.00 inclusive of compensation to the complainant on the 7th day of January 2024 as per the receipts attached marked Exhibit A. That a guilty plea itself calls for mitigation and prayed the court to exercise its discretion in mitigating the sentence. That the appellant as a young man had been deterred enough and likely he would not commit similar offences and prayed to be given the opportunity to reform outside the prisonwalls. Counsel further submitted that as a general rule the court is not bound to give reasons for the sentence it passes, however, where the sentence is quite close to the maximum limit and extremely high, the court is supposed to offer reasons for its decision. That the court is enjoined in passing sentence to consider the personal circumstance of the convict. That the appellant is a first offender and this should have been taken into account to mitigate the sentence to be imposed and he has no previous conviction which should have been taken into consideration by the court and pray that the court temperjustice with mercyand grantthe appellant his freedom. On the other hand, counsel for the respondent also contends that the sentence of 36 months imposed on the appellant is well within the law and not harsh having regard to the conduct of the appellant and that the flagrant disregard of the law by the appellant and the other convicts to march to the house of the complainants to assault them and cause damage to their properties. However, the appellant decided to steal their properties in addition leaving the complainants in a state of destitute. That the sentence imposed on the appellant is minimum and therefore submit that the sentence should notbe interfered with assame is well withinthe lawand notharsh. 10 Counsel further submitted on the issue of appellant’s family that this is not a reason for the court to exercise its appellate jurisdiction in reducing the sentence imposed and that the appellant ought to have thought about the difficulties his wife and children would havebeen in beforehe started thecriminal enterprise. Counsel further admitted that although there is nothing on the record of appeal to show that the Judge took into consideration any mitigating factors in sentencing the appellant, they are of the opinion that the sentence imposed would not have been any different even if the court took into consideration any mitigating factors because the sentence imposed isreasonable andcommensurate withthe actionsoftheappellant. Again, counsel stated that although the appellant did not state as a ground of appeal, the fact that the court ordered that the sentences imposed on him should run consecutively instead of concurrently, as appeal is by way of rehearing the appellate court has authority to comment on it. Counsel again referred to Section 302 and 303 of Act 30 and argued that it is evident from the facts that the injuries sustained by the complainants and the damages caused to their properties emanated from the same action of the appellant and the other five convicts. Since all the counts emanated from one criminal act, the Judge should have pronounced the sentence to run concurrently instead of consecutively. However, concluded that the sentence of 36 months is not harshand therefore theappeal should be dismissed. Moving forward, it is to be noted that as it has been generally stated, an appeal is by way a re-hearing of the case. See the cases of TUAKWA v BOSOM [2001-2002] SCGLR 61, OPPONG v ANARFI [2011] 1 SCGLR 556, KWA KAKRABA v KWASI BO [2012] 2 SCGLR 556 and AGYEIWAA v P&T CORPORATION [2007-2008] 2 SCGLR 985 where Wood CJ(as she thenwas) stated atpage 989as follows: 11 “The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to the conclusion on both the facts and the law.” The Supreme Court per Dotse JSC in the case of DEXTER JOHNSON vrs THE REPUBLIC(2016) 98GMJ 95,SCalso statedat pages669-670 asfollows: “What is therefore meant by an appeal is by way of rehearing is that, the appellate courthas powersto either maintain the conviction and the sentence or set itaside and acquit and discharge orincrease the sentence.” Also, in the case of FRANCIS YIRENKYI vs THE REPUBLIC (J3/7/2015 delivered 17th February2016)Dotse JSCstated asfollows: “Since an appeal has been held to be a rehearing, the Court should rather resort to the appeal record rather than relying on bits and pieces from submissions of both counsel and the decision of the trial judge, …………….At every stage of a trial process, more so at appellate level, it is the responsibility of the courts to evaluate the evidence led in court and analyse it with the laws applicable before coming to a decision. A court of law should not be misled by the submissions of any party in a case beforeit.” This means that the appellate court is entitled to examine and evaluate the entire evidence led at the trial per the record of proceedings including the charge sheet, documents and exhibits tendered and relied on during the trial as well as the evidence during testimony and cross-examination, judgment, decision or the order appealed against, to satisfy itself that the prosecution has succeeded in establishing the key ingredients ofthe offence charged against the appellant beyond reasonable doubt. After, the appellate court has the power to make its own findings or come to a different conclusion from the trial court, thus make the appropriate orders that are deemed 12 necessary, thus, powers to either maintain the conviction and the sentence or set it aside and acquit and discharge orincrease the sentence. In the case of AMANKWAH vrs THE REPUBLIC (Criminal Appeal No. J3/04/2019 [2021] GHASC 27 (21 July 2021), the Supreme Court stated the guiding principles in rehearing criminalappeals asfollows: “GUIDINGPRINCIPLES IN RE-HEARING CRIMINAL APPEALS 1. Inconsidering an appealas one ofre-hearing, the appellate court must undertake aholisticevaluationofthe entire recordofappeal. 2. This evaluation must commence with a consideration of the charge sheet with which the appellant was charged and prosecuted at the trial court. This must involve an evaluation of the facts of the case relative to the charges preferred against theappellant. 3. This also involves an assessment of the statutes under which the charges have been laid against the appellant and an evaluation of whether these are appropriatevis-à-vis the factsofthe case. 4. An evaluation of the various ingredients of the offense preferred against the appellant and the evidence led at the trial court. This is to ensure that the evidence lead at the trial court has established the key ingredients of the offence oroffense preferredagainst the appellant. 5. There must be an assessment of the entire trial to ensure that all the witnesses called by the prosecution lead evidence according to the tenets of the Evidence Act, 1975,NRCD323. 6. Ensure thatthe entire trial conformstothe rulesofnaturaljustice. 7. An evaluation of all exhibits tendered during the trial, documentary or otherwise to ensure their relevance to the trial and in support of the substance of the offence charged and applicable evidence. 13 8. A duty to evaluate the application of the facts of the cases, the law and the evidence led atthe trialvis-à-vis the decisionthat thecourt has given. 9. To ensure that the basic principles inherent in criminal prosecution, that is to ensure that the prosecution had proved or established the ingredients of the offences charged beyond reasonable doubt, against the appellant had been established. 10.Inother words, the appellate court, and a final one like this Supreme Court, must ensure that even if the appellant’s defence was not believed, it must go further to consider whether his story did not create a reasonable doubt either. See cases of AMARTEY v THE STATE [1964] GLR 256 which was applied in DARKO v THE REPUBLIC [1968] GLR 203 per Amissah JA sitting as an additional High CourtJudge……….. 11.Finally, the burden on a final appellate court such as this court, is generally to go through the entire record of appeal and ensure that in terms of substantive law and procedural rules, the judgment appealed against can stand the test of time. In other words, that the judgment appealed against can be supported having regard to the record of appeal and that there is no substantial miscarriage of justice thatresultsfromthe trialcourt orthe intermediate CourtofAppeal.” It is trite that a person charged with a criminal offence is presumed innocent until proven guilty or has pleaded guilty in Ghana. Article 19(2) of the 1992 Constitution provides asfollows: “A person charged with a criminal offence shall be presumed innocent until he is provedguilty or haspleaded guilty.” This means that it is the duty of the prosecution to prove the guilt of the accused person who has been charged with a criminal offence beyond reasonable doubt or the accused person himself pleads guilty. The accused person is generally not required by law to 14 prove anything. He is only to raise reasonable doubt in the mind of the court as to the commission of the offence to secure an acquittal as stated in the case of BRUCE KONUA v THEREPUBLIC(1967)GLR611. As rightly stated by counsel for the respondent, the grounds upon which an appellate court can interfere with the sentence given by the court below was discussed in the case ofAPALOO &OTHERS vrsTHEREPUBLIC(supra) that “The principles upon which the court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if member 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 opinion that the sentence was manifestly excessive having regard other circumstance of the case or that the sentence is wrongin principle.” Also in the case of ROBERTSON v REPUBLIC (J3/4/2014 [2014] GHASC 169 (28 May 2014) the Supreme Court laid down the guidelines for interfering in the sentence of an accused personby anappellate courtasfollows: “Sentencing is discretionary and where the discretion has been judicially exercised, an appellate court has no just cause to interfere with the exercise of discretion. The principles upon which the court would act on an appeal, against sentence were that 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 opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrongin principle.” As stated earlier, in the case of AMANKWAH vrs THE REPUBLIC (supra) the SupremeCourtstated some oftheguiding principles in rehearing criminal appeals that: 15 “In considering an appeal as one of re-hearing, the appellate court must undertake a holistic evaluation of the entire record of appeal; this evaluation must commence with a consideration of the charge sheet with which the appellant was charged and prosecuted at the trial court; this must involve an evaluation of the facts of the case relative to the charges preferred against the appellant and this also involves an assessment of the statutes under which the charges have been laid against the appellant and an evaluation of whether these are appropriate vis-à-vis the facts of the case.” Again, as rightly cited by counsel for the respondent, in the case of ASAAH alias ASI v THEREPUBLIC(supra) the Courtmade the following observations asfollows: “In dealing with an appeal against sentence, an appellate court had to find 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 adverted his mind to them he would probably nothaveimposed such a severe sentence.” I have perused the record of appeal and as counsel for the respondent rightly submitted, thetrial Judge didnot assignany reasonsforthe sentence passed byhim. Inthe case ofKAMIL vrsTHE REPUBLIC[2011] 1 SCGLR 300,the Supreme Court laid down the guidelines for both trial and appellate courts on matters that should be taken into consideration before an appropriate sentence could be imposed. Thus, the court 16 must take into consideration the seriousness of the offence, how the citizens consider that type of offence, the manner in which the crime was committed and whether the crime is on the ascendency in the area. The court is also bound to consider the mitigating and aggregating circumstances ofthe offence. In passing sentence, a Trial Judge is to bear in mind the basic principles of punishment. In the case of KWASHIE v THE REPUBLIC [1971] 1 GLR 488 CA and the said principles were affirmed by the Supreme Court in the case of FRIMPONG alias IBOMANv THEREPUBLIC[2012]1SCGLR 297 at303 (holding 8)asfollows: “The Supreme Court would affirm the principles for imposing sentences upon a convicted person, namely, in determining the length of sentence, the facts which should be considered by the trial judge were: (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 pre-meditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; (5) the sudden increase in the incidence of that particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violentmanner in which the offence was committed.” It is trite that in imposing sentence of a convicted person, the courts normally take into consideration facts such as whether the sentence is of a deterrent, reformative or retributive nature. Also, the criminal and previous antecedents of the accused are taken into consideration as held in the case of GLIGAH & ATISO vrs THE REPUBLIC [2010] SCGLR870. As stated earlier, the Trial Judge did not assign any reasons for the sentence passed on the appellant. The Court will therefore presume that the Trial Judge failed to take into consideration the fact that the appellant had no previous criminal record and had also 17 refunded the full amount and items dishonestly appropriated before passing the sentence. It is also clear and apparent on the record of appeal that the appellant did not haveany legalrepresentation at the courtbelow. Asthe authorities have held, it was the duty ofthe Trial Judge toenquire into the personalcircumstances ofthe appellant to see if there are mitigating factors existing in accordance with the Ghana Sentencing Guidelines and the case of ASAAH alias ASI v THE REPUBLIC (supra) and KAMIL vrsTHEREPUBLIC(supra). Also in the case of ASAMOAH GYAN v THE REPUBLIC [2019] 132 G.M.J. 178 C.A. the Court of Appeal in considering factors to be considered when determining the length of sentence, held that it is the duty of the trial court to take the personal circumstances oftheconvict into consideration. In the instant appeal, counsel for the respondent submitted that, the sentence imposed on the appellant is minimum and therefore well within the law, as the law states, the maximum sentence fixed by law is for a term not exceeding twenty-five years as per Section296(5) oftheCriminal and OtherOffences ProcedureAct, 1960(Act 30). It would therefore be right to conclude per the record of appeal that the Trial Judge did not enquire information from neither the prosecution nor the appellant. It is my view that if the Trial Judge had made enquiries and obtained the appropriate information from the prosecution and that of the appellant, and had also taken into consideration the fact that the appellant is a family man and sole bread winner of his family, coupled with the restitution which had already taken place, the Trial Judge would have been guided and would have been in a better position before passing sentence. And also considered that,being afirst offender, his sentence deservesmitigation. Upon perusing the record of appeal, it is my further view that the Trial Judge failed to exercise his discretion judicially, ie according to reason and justice and not according to 18 sentiment or sensibility. If the discretion is exercised judicially, it will not be interfered with on appeal as held in the case of POKU v FRIMPONG [1972]2 GLR 230, CA. A discretion exercised on no ground cannot be judicial as held in the case of MUSA v LIMO-WULANA [1975] 2 GLR 290, CA. It is my humble view that there are many mitigating factors as per the record of appeal which the Trial Judge failed to consider in passingsentence. Counsel for the respondent also rightly submitted that, the Trial Judge failed to take into consideration the fact that all the counts emanated from one criminal act and since all the counts emanated from one criminal act, the Judge should have pronounced the sentence to runconcurrentlyinstead ofconsecutively. A person may commit several acts, each of which may amount to an offence. If the severalacts were done in executionof onegrand design andthat personis charged with the several individual acts and convicted on them, the sentence of each act must run concurrently with the others emanating from that one grand design as held in the case of TETTEH ASAMADEY alias OSAGYEFO v COMMISSIONER OF POLICE (supra) as rightly cited by counsel for the respondent. In the said case, the accused person was found by the High Court to have committed several offences, but all in respect of one person. It was held on appeal that the trial court was in law obliged to impose sentences to run concurrently by virtue of sections 302(a) and 303 of Act 30. See also the case of ADJEIv THEREPUBLIC[1977]1GLR 156. In conclusion, I have considered the facts of the instant case, the circumstances of the case, the mitigating factors raised by counsel for the appellant and that also raised by counsel for the respondent, the authorities cited above and the term of imprisonment imposed on the appellant. I am of the opinion that it will be appropriate to allow the appealagainst the sentence and I herebyset aside the36-month sentence. 19 It is onrecord that the appellant was convicted and sentenced on 6th December 2023 and so the appellant has served about twenty-five (25) weeks, which is almost six (6) months of prison term. As counsel for the appellant rightly submitted, the appellant must have learnt his lesson by now. It is therefore my view that being a first offender, that period must have been long enough to punish him. In place of the 36 months, I shall sentence the appellant to a fine of five hundred (500) penalty units or in default serve twelve (12) monthsimprisonment in hardlabour. The appealagainst sentence hereby succeeds. H/LJOAN E.KING JUSTICEOF THE HIGH COURT EMMANUELAWIAGAHFOR APPELLANT DINA DZIFAAMEFINUFOR THERESPONDENT 20