KONTOH VRS. REPUBLIC (CR/0175/2024) [2024] GHAHC 284 (16 May 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 16TH DAY OF MAY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0175/2024 THOMAS KONTOH CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein who was the second accused, one Patrick Yankah A1, Kwame Ogura A3 and one Awudu at large were arraigned before the Agona Swredu Circuit Court on the 3rd day of December 2014 and charged with the following offences: COUNT ONE A1, A2 appellant herein and A3 were charged with the offence of conspiracy to commit crime to wit robbery contrary to Sections 23 and 149 of Criminal Offences Act 1960/Act 29. COUNT TWO 1 A3 was charged with the offence of abetment of crime to wit robbery contrary to Sections 20 and 149 of the Criminal Offences Act 1960/Act 29. COUNT THREE A1 was charged with assault contrary to Section 85 of the Criminal Offences Act 1960 Act 29. COUNT FOUR A1, A2 the appellant herein and Awudu at large were charged with attempt to commit crime to wit robbery contrary to Sections 18 and 149 of the Criminal Offences Act, 1960/Act 29. COUNT FIVE A1 was charged with causing unlawful harm contrary to section 69 of the Criminal Offences Act 1960/Act 29. The appellant pleaded not guilty to the charges on the 3rd of December 2014. After a full trial, the appellant was convicted and sentenced to thirty (30) years IHL on count one that is the offence of conspiracy to commit robbery and thirty five (35) years IHL on count two the offence of attempt to commit the offence of robbery. It is against this sentence that the appellant filed the instant appeal on the 12th of February 2024. GROUNDS OF APPEAL The grounds of appeal are that: 1. That the sentence imposed on the Appellant is harsh having regard to the circumstances surrounding the case hence his plea for reduction of sentence. 2 2. That the appellant is remorseful and promise never to indulge in any criminal activities in future. 3. That the appellant prays that the court tempers justice with mercy by reducing the sentence of thirty five (35) years IHL to the minimum. FACTS OF THE CASE The case of the prosecution is that the victim Kojo Owubah is a native of Agona Nyakrom. The fist Accused (A1) and second accused (A2) became friends while serving their prison terms at the James Forte prisons. A2 is a permanent resident of Agona Nyakrom. On 22/11/14, Al and A2 together with one Awudu who is at large met at Agona Nyakrom and planned to rob one Georgina Foriwaa, the wife of the victim with weapons. They then invited the third Accused (A3) who is the master of A2 to help them draw the plan and lead them to the said Georgina Foriwaa's house for the robbery. On 23/11/14 at about 1.45am, A3 led all the other Accused persons to a junction leading to the victim's house and directed them to the house saying it is not safe for him to join them to the house since he could easily be identified. With Al holding a cutlass, the said Awudu holding a gun and together with A2, the three entered the house of the victim. Al and Awudu entered an unlocked room in the house where one Albert Saah, a son of Georgina Foriwaa sleeps. Al hit the said Albert Saah with the cutlass, woke him and forced him to direct them to where Georgina Foriwaa sleeps. Albert however, directed them to victim Kojo Owubah's room and they knocked at the door leading to the room. As soon as the door was opened, the robbers tried to enter into the room but the victim managed to push them out. In the process of pushing them, Al inflicted wound on the head of the victim with the cutlass he was holding. Alarm was raised by witnesses in this case during which the Accused persons bolted. 3 Upon a tip off, A2 and A3 were arrested. Al was later on arrested by another witness in this case. After their arrest, Al and A2 were identified by Albert Saah as two of the robbers who came to the house. They were charged and brought before court for trial. RESOLUTION OF THE GROUNDS OF APPEAL From the grounds of appeal filed, the appellant is clearly seeking this court to mitigate the sentence imposed on him. Even though he prays the court to consider how remorseful he is and promises never to indulge in any criminal activities in the future, the law is clear that a ground of appeal which calls on the court to consider how remorseful an appellant is, is nothing more than a plea to the court and cannot be considered as a ground of appeal. Even if the court were to consider that, same is nothing but mere assertions for which no evidence have to given to support them. The duty of the court in this judgment and any appeal against sentence is to consider the sentence meted out to the appellant to make a decision whether according to the law and statute, same ought to be disturbed. The offence of conspiracy to commit the offence of robbery is provided for by Section 23 and 149 of the Criminal Offences Act 1960 Act 29. Section 23 of the Criminal Offences Act 1960 Act 29 provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” Section 24 (1) of Act 29/60 provides: “Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had 4 abetted that criminal offence. Section 20 (3)(b) speaks to the effect that ‘’A person who abets a criminal offence is, if the criminal offence is not actually committed; the abettor is punishable in the same manner as if the criminal offence had been actually committed in pursuance of the abetment.” Section 18 (1) and (2) of the Criminal Offences Act 1960 Act 29 provides that. “(1) A person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent— (a) by reason of the imperfection or other condition of the means; or (b) by reason of the circumstances under which they are used; or (c) by reason of the circumstances affecting the person against whom, or the thing in respect of which the criminal offence is intended to be committed; or (d) by reason of the absence of that person or thing. (2) A person who attempts to commit a criminal offence commits a criminal offence, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offence has been completed. Robbery on the other hand is a first degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It is provided in Section 149 of Act 29/60 that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment for a term of not less than ten (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” 5 Per the law, a person who commits robbery with the use of an offensive weapon or offensive missile shall be sentenced to a minimum of fifteen years imprisonment. A person who commits robbery without the use of offensive weapon or offensive missile shall upon conviction be liable to a minimum sentence of ten years. The maximum sentence for robbery of any form is life sentence. Sections 149 of Act 29 and 296 of Act 30 prescribe for a maximum sentence of life imprisonment for the offence of robbery. Section 296 of Act 30 which is on general rules for punishment prescribes the maximum sentence for offences where the provision creating the offence does not specify it. Section 296(1) of Act 30 provides thus: “Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or a lesser term.” From the above therefore, the minimum punishment the appellant could legally face for count one and count four the offence of conspiracy to commit the offence of robbery and attempt to commit robbery was in the case of use of offensive weapon, fifteen years and without the use of offensive weapon ten (10) years to life imprisonment. The trial judge was clearly within the confines of the law with regards to the sentence meted out to the appellant. In sentencing the appellant, the trial court considered the increasing rate of robbery by the youth which she said was notorious within Nyankrom and its environs, the period the appellants had spent in custody which was about two (2) years, the fact that the appellant was known to the law, the fact that his accomplice 6 A1 inflicted wounds on the PW2 and that the facts could also have supported the charge of unlawful entry against the A1 and A2. As far as appeals against sentences are concerned, an appellate court must rarely interfere with sentencing passed by a trial judge unless it is manifestly excessive, on case-to-case basis. This law was enunciated in the case of RAHIM IBRAHIM & 3 OTHERS V THE REPUBLIC H2/2/201 that ‘’The principles upon which this Court acts on an appeal against sentence are well-settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The Court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle.” See Apaloo and Others vrs The Republic [1975] 1 GLR 156.” The case of Kwashie v The Republic [1971] 1 GLR 488 Azu-Crabbe, JA espoused thus: 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 6) Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed 7 In Article 14 of the Constitution, 1992, any time spent in detention before or during the trial is to be considered when imposing a sentence. The application of the above stated grounds is at the behest of the trial judge who may exercise their judicial discretion as each case may demand. In all cases, the discretion must be exercised taking into consideration the maximum sentence permitted by the statute creating the offence. See: Banda v The Republic (1975) 1 GLR 52. An appellate court may not simply interfere with the exercise of this discretion simply because the said appellate judge believes it would have exercised the discretion differently. As outlined in the case of Odonkor v The Republic (1967) GLR 690; when the appellate judge is faced with a prayer of interfering with a sentence the court must consider the following matters: 1) Whether the sentence is manifestly excessive, considering the circumstances of the case 2) Whether the sentence is wrong in principle or based on a wrong proposition of law 3) Whether in sentencing the trial judge failed to exercise discretion properly The trial judge from the record took into consideration the above stated factors before convicting the appellant. It is the view of this court however that there are other factors which the trial court should have taken into consideration which might have mitigated the sentence. In the case of Melfa v The Republic [1974] 1 GLR 174 – 176 the court held that each crime must be assessed on its own merit with considerations to the total circumstances of the case. In determining whether this court should interfere with the sentence, I have considered the fact that in sentencing an accused person who has been convicted with others, the role played by each convict is to be taken into account. In the case of Dabla vrs The 8 Republic [1980] GLR 501 the court held that in imposing sentences on persons jointly convicted, the sentences should reflect the role each party played; if one person’s role is minor and the other is say the architect, then the sentences should reflect these roles, the architect as a general rule receiving more than the one who played a minor role. From the record. there is compelling evidence that A2 had limited involvement in the modus operandi of the crime. He was passive in the use of the weapons in the attempted robbery. A1 was mostly the aggressor during the robbery venture. Per the record, Exhibit F showed that A1 struggled with PW2 and caused the door to hit the head of PW2 and the injury caused to the head of PW2 by the use of cutlass was solely the handiwork of the A1. Another mitigating factor was the youthful nature of the appellant which the trial court should have taken into account. The record of proceedings reveal that the Appellant was 27 years of age. The youthfulness of an accused person is a factor which trial courts are also mandated to consider as possible mitigating factors. Youthfulness itself induces leniency in the eyes of the law as the court takes the position that there are a lot of life lessons to be learnt by persons in their youthful years. Upon considering the above, I hereby set aside the sentence of thirty (30) years IHL on count one that is the offence of conspiracy to commit robbery and thirty five (35) years IHL on count four the offence of attempt to commit the offence of robbery. I hereby substitute the sentence of 30 years IHL on count one with a sentence of 25 years IHL and on count four the sentence of 35 years IHL with the sentence of 25 years IHL. The sentences will run concurrently and shall commence on the 14th December 2016 when the Appellant was sentenced. MARY M.E YANZUH J. HIGH COURT JUDGE 9 PARTIES: APPELLANT PRESENT COUNSEL: DORCAS FELLI FOR DERRICK ACKAH NYAMIKE FOR THE REPUBLIC/RESPONDENT PRESENT APPELLANT IN PERSON 10