REPUBLIC VRS. BOTWEY (D10//40/23) [2025] GHACC 19 (8 April 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON TUESDAY, THE 8TH DAY OF APRIL, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU- BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: D10//40/23 THE REPUBLIC VRS: DAVID BOTWEY ACCUSED PERSON ABSENT INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT MARIAM MOHAMMED, ESQ. HOLDING THE BRIEF OF JAMES ENU, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT FACTS: The accused person was charged and arraigned before this court on 27th June, 2023, on the following charges; 1. Carnal knowledge of a mental patient contrary to Section 102 of the Criminal Offences Act 1960 (Act 29). 2. Indecent Assault contrary to Section 103 of the Criminal Offences Act, 1960 (Act 29). The brief facts presented by the prosecution are that the complainant, Mary Korsorku, aged 22, is a businesswoman and the younger sister of the alleged victim, Priscilla Korsorku, aged 24 at the time of the alleged incident. The prosecution alleged that the victim was a mentally ill person who was an inpatient at the Pantang Psychiatric Hospital at the time the incident was reported. The accused person, aged 50 years, is the brother-in-law of the complainant and the victim and they all live at Official Town- Ashaiman in their late father's house with the accused person and his wife. According 1 to the prosecution, since the year 2019, the victim has been mentally ill and receiving treatment at the Pantang Psychiatric Hospital as an outpatient, to the knowledge of the accused person. The prosecution further alleges that the accused person took advantage of the condition of the victim and sexually assaulted her. The prosecution claims that on the 18th of February, 2023 at about 2 pm, the accused person went into the victim's room, pounced on her, inserted his fingers into her vagina and fondled her breast. The accused person later removed his penis and inserted it into the victim's mouth and discharged semen into her mouth. The prosecution further alleges that in May 2023, the victim’s condition worsened and she was rushed to the hospital, where she was admitted for treatment. The doctor's assessment revealed that the victim had been abused sexually, and she asked the complainant to report the case to the Police. A complaint was lodged at the Domestic Violence and Victim Support Unit/Ashaiman and a Police Medical report form was issued. Later, a duly signed Medical Report was received from the hospital. This led to the arrest of the accused person. The prosecution states that investigations disclosed that the accused took advantage of the medical condition of the victim and sexually harassed her on several occasions. After investigations, he was charged with the offences and put before this honourable court. THE PLEA The accused person pleaded not guilty to the charges after the charges had been read and explained to him in the English language. The prosecution therefore assumed the burden to prove the accused person's guilt beyond reasonable doubt. The case proceeded to trial, and the prosecution called four witnesses: Priscilla Korsuko, the alleged victim, Mary Korsuko, the complainant, D/PW/Inspector Alice Nokobi Tetteh and Dr. Elsie Tetteh of the Pantang Hospital. The prosecution also tendered in evidence the following exhibits; 2 Exhibit “A”: Video Recording on a pen drive Exhibit ‘B’ ‘B1’ ‘B3”: Photographs Exhibit “C”: Investigation Caution Statement Exhibit ‘D’: Charge Statement of the accused person. Exhibit ‘E’: Statement of Salome Korsoku At the close of the case for the prosecution, Learned Counsel for the accused person submitted that there was no case sufficiently made out to call upon the accused person to open his defence. On 14th August, 2024, the court ruled that a case was sufficiently made out to warrant calling on the accused person to open his defence. The accused person testified in his defence and tendered in evidence Exhibit “1” and called no witnesses in his defence. BURDEN OF PROOF It is trite learning that in criminal cases, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Sections 11, 13, and 15 of the Evidence Act, 1975 (N.R.C.D. 323). In the case of Banousin v. The Republic [2015-2016] 2 SCGLR 1232 at page 1241, the Supreme Court held that: “The burden the prosecution has to prove is the accused person’s guilt, and this is beyond reasonable doubt. This is the highest burden the law can impose; and it is in contra distinction to the burden a plaintiff has in a civil case, which is proof on a preponderance of probability of the evidence. What “beyond reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring the innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence; in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused person.” 3 Thus, the burden is on the prosecution to prove the essential ingredients of the charge of the charges against the accused person beyond reasonable doubt. When the accused person is called to open his defence, what is required of him is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence of the accused person is on a preponderance of probabilities only, which is a lighter burden than what the law imposes on the prosecution. See the case of Osae v. The Republic [1980] GLR, 446. ANALYSIS COUNT 1 The accused person is charged with Carnal Knowledge of a mental patient in or under the care of a mental hospital, contrary to Section 102 of the Criminal Offences Act, 1960 (Act 29), which provides as follows, “A person who has carnal knowledge or has unnatural carnal knowledge of an idiot, imbecile or a mental patient in or under the care of a mental hospital whether with or without the consent of that other person, in circumstance which proves that the accused knew at the time of the commission of the criminal offence that the other person has a mental incapacity commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than five or and not more than twenty- five years.” To succeed, the prosecution must prove the following essential ingredients of the offence charged; a. Proof that the victim was an idiot, imbecile or a mental patient in or under the care of a mental hospital. b. Proof of knowledge at the time of committing the offence that the person had a mental incapacity in or under the care of a mental hospital. 4 c. There must be proof of natural or unnatural carnal knowledge of the victim by the accused person. Firstly, the prosecution must prove that the victim was an idiot, imbecile or mental patient in or under the care of a mental hospital. From the particulars of the offence, the victim is alleged to have been in or under the care of a mental hospital. The Mental Health Act, 2012 (Act 846) under Section 97, defines a mental disorder and mental health as: "mental disorder" means a condition of the mind in which there is a clinically significant disturbance of mental or behaviour functioning associated with distress or interference of daily life and manifesting as disturbance of speech, perception, mood, thought, volition, orientation or other cognitive functions to such degree as to be considered pathological but excludes social deviance without personal dysfunction; "mental health" means the state of wellbeing of the mind in which one is capable of functioning at a satisfactory level of emotional, psychological and behavioural adjustment personally and with society; A mental patient can therefore be defined as a person diagnosed by a mental health practitioner as having a mental illness, mental disorder or any form of mental impairment. The expression “a mental patient in or under the care of a mental hospital” can mean in-patient status where the victim is staying at a mental hospital for treatment and outpatient status (under the care), where the victim is not hospitalised but is regularly receiving medical treatment or psychiatric reviews at a mental hospital. The first prosecution witness testified that she was mentally ill and that she had been going for review. At the time of the alleged incident, she was overdue for review, but her sister was not around so she had not gone for review. The second prosecution witness also confirmed that the victim was a mental patient under the care of Pantang Hospital. The second prosecution witness under cross-examination by Counsel for the 5 accused person stated that the victim is a mental patient and that she was first diagnosed at the Pantang Hospital in November 2020. Although she states that she had forgotten the condition her sister was diagnosed with, her condition was recurrent and was triggered after her encounter with the accused person. According to her, prior to the incident, the victim was talking to herself and roaming the neighbourhood. To confirm the mental state of the victim, the fourth prosecution witness, Dr. Elsie Agyeman of the Pantang Hospital, testified and identified the General Medical Form that she authored, tendered by the defence and marked as Exhibit “1”. The medical officer testified that the victim first reported to the Pantang Hospital on 24th November, 2020 and was diagnosed with schizophrenia and psychotic features. According to her, schizophrenia is a mental condition where the patient has disorganised thinking and behaviour as well as perception. She states that ever since the victim was diagnosed, she has been visiting their facility for periodic review and states emphatically that the victim was a mental patient. She further testified that the victim has schizophrenia and could not tell her current state because her mental state changes over time, and she had to reassess her current mental state. She further states that schizophrenia is a chronic mental illness and that it is not cured but managed and patients who suffer from that illness are expected to be on medication for as long as it is required. The defence did not call any expert to contradict the expert testimony of the fourth prosecution witness. The evidence adduced by the prosecution shows that at the time the victim is alleged to have been unnaturally carnally known by the accused person, she was under the care of Pantang Hospital being managed for Schizophrenia, a recognised mental disorder. The medical officer tendered the medical report to confirm the same. The prosecution therefore succeeded in proving that the victim was diagnosed with schizophrenia and was under psychiatric care at the time of the alleged incident. 6 On the second ingredient of the offence charged, the prosecution must prove that the accused person knew that the victim was a mental patient under the care of a mental hospital. It is trite that knowledge as an ingredient of a criminal offence can be either actual or constructive. In the case of Santuoh v. The Republic [1976] GLR 44, the High Court, Kumasi, presided over by Owusu-Addo J, speaking on guilty knowledge as an element of a crime charged held at page 48 as follows: “in discharging onus of proof of knowledge it is not necessary for the prosecution to lead evidence of actual knowledge; it is sufficient if evidence from which knowledge can be justifiably inferred is established.” The evidence of the prosecution shows that the accused person is married to the elder sister of the alleged victim and they lived in the same house at the time of the incident, showing that the accused person knew the mental condition of the victim and that she was under the care of a mental hospital. The accused person, in his defence, testified that he lived with his wife and her siblings, including the victim in the case. According to him, whilst living with them, the victim was said to be exhibiting tendencies of a person tormented by evil spirits and was taken to a prayer camp in Doryumu, where she was seemingly treated and discharged. According to him, his work schedule is such that he does not get to see both the complainant and the alleged victim quite often, coupled with his wife also not being accustomed to discussing matters concerning her siblings with him. The accused person further testified that sometime in the year 2020, he had not seen the victim for some time and asked about her whereabouts from his wife, who reluctantly claimed she noticed an abnormal change in the victim’s behaviour again and had sent her back for treatment without informing him about where she had sent the victim to for treatment. He states that he believed that she sent her back for treatment at the prayer camp in Doryumu as was first done. He further contends that he never knew the victim was under the care of any mental facility or hospital for any form of mental disorder because upon her return to the house from the second treatment which he believed was 7 at the same Prayer Camp in Doryumu, the victim behaved normally before the instant case. The evidence of the accused person that he knew the victim had a mental condition but was made to believe that she was at a prayer camp strains credulity since the accused person lives with them, and his wife has been sending the victim to the Pantang hospital for periodic review. I therefore find that the accused person knew that the victim was under the care of the Pantang Hospital. Lastly, the prosecution must prove the accused person had natural or unnatural carnal knowledge of the victim. Section 99 of Act 29 states that “where on a trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal or unnatural carnal knowledge is complete on proof of the least degree of penetration.” In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, SC@ page 879, Dotse JSC defined carnal knowledge as “ the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed.” Section 104 (2) of Act 29 defines unnatural carnal knowledge as sexual intercourse in an unnatural manner or with an animal. Sir Dennis Adjei in his book Contemporary Criminal Law in Ghana 2nd edition at page 241, states that though unnaturally having sexual intercourse has not been defined, in the Ghanaian context, having sexual intercourse through the anus, nose, ears and mouth would constitute unnatural carnal knowledge. 8 Given the alleged mental state of the victim and the fact that at the time the complaint was lodged, she was on admission at a mental hospital, the prosecution did not file a witness statement for the victim. The victim gave an oral testimony that the accused person is her brother-in-law and that he has been sexually harassing her. She stated that the accused person harasses her and touches her anytime he wants to give her money. According to her, the harassment takes the form of the accused person either touching her, holding her breast and telling her to have sexual intercourse with him or suck his penis if she refuses to have sexual intercourse with him. The alleged victim, in her evidence-in-chief, was insistent that the accused person had never had sexual intercourse with her but that he only attempted to. She further identified the video tendered in evidence by the prosecution and stated that the accused person asked her to touch and suck his penis, whilst kissing and fondling her breast and that he also laid her on the bed. She states that her condition became serious and when she was admitted to the Pantang Hospital, she disclosed what the accused person had been doing to her. The alleged victim under cross-examination by Counsel for the accused person again testified that between 2019 and 2023, she had sexual intercourse with someone other than the accused person but was insistent that the accused person had not had sex with her but touches her inappropriately and puts his penis into her mouth for her to suck it. Under further cross-examination by Counsel for the accused person, the following exchanges took place; Q: Miss Korsorku, between 2019 and 2023, you have had sex with someone other than the accused person is that not so? A: Yes, My Lord. Q: Did you ever fall sick or got disturbed after that sexual intercourse you had? 9 A: No, My Lord. Q: So in fact, you visiting the hospital, in this case the Pantang Hospital is not as a result of any sexual activity is that the case? A: Yes, My Lord. It is not the sex. Q: It is your testimony before this honourable court that the accused person has never had any sexual intercourse with you, is that not correct? A: Yes, My Lord. Q: And you can also confirm to this court that he has never penetrated or attempted to penetrate you through the anus? A: My Lord, he has attempted to do that. Q: Miss Korsorku, the accused person has never slept with you through your anus, is that not so? A: No, My Lord. The second prosecution witness, Mary Korsorku, testified that the accused person is married to her half-sister. The victim has been diagnosed at Pantang Hospital with a mental condition. She states that the accused person moved in to live with her elder sister in their father’s house after their father's demise, where she and the victim have also been living since 2018. She testified that the accused person sexually harassed the victim and on several occasions touched her breasts and buttocks, which she reported to the accused person’s wife, their sister, on two occasions. As a result of the constant harassment, the victim moved into her room to live there. On 18th February, 2023, she was in the room with the victim when the accused person entered without knocking and laid on the victim. When she questioned him, he asked her to shut up or else he would extend it to her. She decided to take video evidence on 10 the blind side of the accused person for his wife (their sister) who does not always believe her when she reports the conduct of the accused person. She states that she saw the accused person kissing, holding and fondling the victim’s breasts and other parts of her body and the victim was cooperating with the accused person. The accused person also inserted his penis into the victim's mouth, but she could not video that part because of how he positioned himself. When the accused person left the room, she observed a substance like semen in the mouth of the victim. She reported the incident to her cousin and sent the videos to her to confirm her assertion, and her cousin promised to address the matter with the accused person’s wife. A few days after the act, the victim's condition deteriorated; she became aggressive and uncooperative, talked to herself, refused to take her drugs and began walking on the streets within the neighbourhood. She was sent to Pantang Hospital, where she had been receiving treatment and was admitted for treatment. She disclosed to the doctors that the accused person had been having sexual intercourse with the victim. The doctor had a meeting with the family and advised them to report the matter to the police. Under cross-examination by Counsel for the accused person, the second prosecution witness testified that she did not see the accused person having sexual intercourse with the victim but attempted to have anal sex with her. She also states that the accused person inserted his penis into the mouth of the victim but she could not take a video of that part. She further testified that there was no analysis to determine that what the victim allegedly spat out was semen but concluded that the accused person was making noise before he ejaculated into the mouth of the alleged victim. She also testified that the accused person used to sexually harass her too, but she did not disclose it to anyone. The third prosecution witness (the investigator) testified that on 26th May 2023, the second prosecution witness reported a case against the accused person that he had sexually assaulted her and the victim in this case who is mentally ill and that at the time of the complaint, she was on admission at the Psychiatric Hospital receiving treatment. Based on that, the accused person was arrested. She tendered in evidence the 11 investigation caution statement of the accused person, admitted and marked as Exhibit “C’. She visited the hospital where the victim was on admission, and the victim confirmed that the accused person had been sexually assaulting her. She also states that at the hospital, the medical doctor told her that the victim had been sexually abused in her environment, which is not good for her mental state. The investigator under cross-examination by Counsel for the accused person, testified that her investigations did not disclose that the accused person had sexual intercourse with the alleged victim. The investigator under further cross-examination by Counsel for the accused person, the following exchanges took place; Q: Throughout your 22 paragraphs witness statement, nowhere did you mention that the accused person had anal sex with the victim, PW1. Is that not so? A: That is so. My Lord. Q: Again, nowhere in that witness statement did you disclose that the accused person had had sexual intercourse with the victim, PW1. A: My Lord, that is so. Q: Again, in your investigations as well as your witness statement you never mentioned or confirmed that the accused person inserted his penis into the mouth of the victim, PW1. A: My Lord, that is so. Q: Can you tell this honourable court the basis part from the complainant for preferring this instant charge against the accused person as you have no evidence to that effect. A: My Lord, when I visited the victim at Pantang Hospital, the doctor on duty told me the victim had been sexually assaulted. The doctor also said she was ready to testify in court. Q: Did the said doctor tell you the nature of the sexual assault? A: No My Lord. Q: Did you, as an investigator, also unearth anything to that effect? 12 A: No, My Lord. The accused person, in stating his version, testified that he was invited into their room by the complainant on the day of the alleged incident. He reluctantly entered the room about ten minutes afterwards, and to his surprise, the complainant was half-naked and fondling her breasts and other parts of her body whilst the victim was also on the bed. While he stood there amazed, the complainant pushed him onto the victim, who started kissing his body. The complainant locked the door and also fell on her back, caressing his body, which turned him on. It was when the victim started kissing him, and he gave in to kiss her back that the complainant started taking the video in pursuance of their ill intentions. The accused person vehemently denied having natural or unnatural carnal knowledge of the victim and states that he never inserted his penis into the victim’s mouth and discharged semen into her mouth since the complainant’s video does not capture that. The accused person under cross-examination by the prosecution, denied having sexual intercourse with the victim and stated that if he had wanted to have sex, he would have had sex with the naked complainant. He again states that they gave him tea that they had prepared and they started caressing him, and that he did not know what happened afterwards. The accused person firmly believes that he was set up due to a property dispute between the parties. On the totality of the evidence led by the prosecution and the defence put up by the accused person in support of the allegation of natural or unnatural carnal knowledge, the prosecution witness admits that the accused person has not had sexual intercourse with the victim. The video evidence also does not show the accused person having sex with the victim through the mouth, but rather, it shows the accused person passionately kissing the victim and the victim holding the penis of the accused person and masturbating him. There is no evidence of sperm analysis to prove that the accused person ejaculated into the mouth of the victim as proof that he inserted his penis into 13 the vagina of the victim. I therefore hold that the prosecution failed to prove beyond reasonable doubt that the accused person had natural or unnatural carnal knowledge with the victim, a mental patient under the care of a mental hospital. I therefore pronounce the accused person not guilty of the charge and accordingly, I acquit and discharge him. COUNT 2 The accused person is charged with indecent assault contrary to Section 103 of Act 29. From the particulars of the offence, the accused person is alleged to have inserted his finger into the vagina of the alleged victim, fondled her breast, kissed her mouth and removed his penis for her to hold and play with and at the time of this act he knew that the said Priscilla Korsorko was a mental patient. Section 103(1) of Act 29, provides that a person who indecently assaults another commits a misdemeanour and is liable on conviction to a term of imprisonment of not less than six months. Section 103(2) defines indecent assault in the following terms: “A person commits the criminal offence of indecent assault if, without the consent of the other person that person (a) Forcibly makes sexual bodily contact with the other person; or (b) Sexually violates the body of the other person, in a manner not amounting to carnal knowledge or unnatural carnal knowledge.” To succeed, the prosecution must prove the following essential ingredients of the offence; a. That the accused person forcibly made sexual bodily contact or sexually violated the body of another person; 14 b. That the sexual bodily contact or sexual violation was without the consent of the other person c. That the sexual bodily contact or sexual violation did not amount to carnal knowledge or unnatural carnal knowledge. The victim testified that the accused person fondled her breasts and asked her to hold his penis after attempting to penetrate her anus which she refused. The victim and her sister, PW1 and PW2 testified that the accused person had been sexually harassing the victim and that he has been touching her breast, buttocks, kissing her and letting her touch his penis. The accused person, in his evidence before the court, admits that when he entered the room, he lost his self-control when the victim started caressing him, leading him to reciprocate her actions by kissing and caressing her. In his investigation caution statement, admitted and marked as Exhibit “C”, the accused person stated that the complainant invited him to their room and when he got there, they were using sex toys and he told them not to do that but to let a man have sex with them. The complainant and the victim started playing romance with him. He later laid on the victim and the complainant also on him from behind. In the process, he and the victim started kissing, but he denied having sexual intercourse with the victim, and he did not see that they were videoing the act. The video evidence confirms this statement of the accused person admitted and marked as Exhibit “A” in which the accused person, oblivious that PW2 was recording him is seen passionately kissing the victim whilst the victim stimulated the penis of the accused person with her hand for him to achieve sexual pleasure. From the evidence before the court, although the victim was at the age of sexual consent, (24 years) at the time the incident is alleged to have occurred, the prosecution’s case is that she lacked capacity to consent to sex since she was under the 15 care of a mental hospital. Under Section 14 of the Criminal Offences Act, 1960 (Act 29), a person shown by medical experts to be under any form of mental incapacity cannot consent to sexual contact, and as such, granted that the victim fully participated in the act, such consent will be void because of insanity unless it is proved that she was in her lucid moment. The medical expert, PW4, testified under cross-examination that people with schizophrenia can have “lucid moments” where they consent, even to sexual intercourse. Under cross-examination by Counsel for the accused person, the following ensued; Q: Whilst on medication, can there be periods or moments where the patient may be described as being lucid? A: Yes, there would. Q: You will agree with me that within that lucid moment, she can grant consent, including sexual consent, to her boyfriend? A: Yes, My Lord. In the Zimbabwean case of S v. Zidyengi (303 of 2024) [2024] ZNHHC 303, the High Court of Zimbabwe presided over by Justice Munangati- Manong set aside the rape conviction of a man who had a consensual relationship with a mentally challenged woman. The court found that there was no expert evidence proving that the complainant was incapable of consent. The trial magistrate’s decision was based on speculation rather than medical proof. The ruling emphasised the rights of mentally challenged individuals to make decisions, including sexual relationships, during their lucid moments. The judge held as follows; “It is imperative to note that the rights to dignity, privacy and not to be discriminated upon are incorporated in the Convention on the Rights of Persons with Disabilities to which Zimbabwe is a signatory. The convention provides and emphasizes that persons with disabilities have the right to make their own decisions, including in matters related 16 to their personal lives and healthcare. This resonates with what the complainant in Casu did, being able to make a decision that she was not going to be forced to take medication whilst pregnant. Thus, the unwarranted restriction to enjoyment of sex, enter into a relationship with a person of the other sex may border on infringement of rights of the mentally challenged persons given their right not to be discriminated upon on the basis of disability. It may be necessary to exercise care, caution and restraint in seeking to strike a balance between protecting the wellbeing of the mentally challenged and preserving their rights to enjoy amenities of life especially where adults are concerned. The considerations applying to minors should certainly differ.” Although the law on the incapacity of persons suffering from mental illness to consent to sex aims at protecting vulnerable individuals from exploitation given that mental health conditions especially schizophrenia can impair judgment and make individuals more susceptible to coercion or abuse, a case-by-case assessment of the individual’s ability to consent based on medical or psychiatric testimony to confirm same cannot be gainsaid. The medical records before the court produced by the medical expert show that prior to the alleged incident on 18th February 2023, the victim had visited the Pantang hospital on 31st January, 2023 with the same condition and had been placed on medication from 31st January, 2023 to 28th February 2023. The medical expert confirmed that schizophrenia cannot be cured but managed, and as such, a patient is supposed to be on medication as long as it is required. She further testified that the victim had a relapse, and for someone in her condition, she would not have a drug holiday. She further stated that she could not state in absolute terms that as long as the victim was on medication, she would be lucid, since it would be based on reassessment. The defence did not call any expert evidence to contradict the expert called by the prosecution and to show that the first prosecution witness at the time had the capacity to consent to the sexual bodily contact with the accused person. 17 On the totality of the evidence led by the prosecution and the defence put by the accused person, I hold that the prosecution proved their case beyond reasonable doubt that the accused person made sexual bodily contact with the victim in this case a mental patient who at the time the incident occurred was incapable of giving consent due to her infirmity of mind. I therefore pronounce the accused person guilty of the charge of indecent assault, and I accordingly convict him of same. SENTENCING It is trite learning that sentencing is at the discretion of the court, but this discretion is fettered by statutory limits and guidelines to ensure that sentencing is not at the whims and caprices of a judge. The factors a trial judge must consider in imposing the length of a sentence as stated in the case of Kwashie v. The Republic [1971] I GLR 488-496, are as follows: “(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.” In sentencing the convict, the court takes into consideration the plea in mitigation put forth by Counsel on behalf of the accused person and the fact that he is a first-time offender. The court also takes into consideration the familial relationship between the accused person and the victim and that given the mental condition of the victim, she needed protection from people in her household from any form of abuse and exploitation. Thus, if the brother-in-law of the victim turns out to be the perpetrator of the abuse, the court must register its displeasure and the displeasure of the whole 18 country to the abuse of persons battling mental health issues. The court also considers the punishment prescribed by law for the offence, which attracts a minimum punishment of six months and, being a misdemeanour, a maximum of three years and the need to impose a deterrent sentence to deter the convict himself from repeating the act and like-minded people. I therefore sentence the convict to serve a term of imprisonment of three years in hard labour on count 2. Consequential Orders 1. Psychological Counselling is recommended for the victim. 2. A bench warrant shall be issued together with the warrant of commitment for the arrest of the convict. Upon his arrest, the arresting officer shall endorse the date of arrest at the back of the warrant and the sentence of imprisonment shall commence on the date of his arrest. 3. The Registrar of the Court shall write to the Ghana Immigration Service to place the convict on the stop list and shall prevent him from travelling outside the country and notify the Court of his intention to leave the country until a court determines otherwise. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 19