The Republic vrs Justin Atandze (D6/003/2022) [2024] GHACC 137 (6 February 2024)

IN THE CIRCUIT COURT HELD AT AKROPONG ON TUESDAY THE 6TH DAY OF FEBRUARY, 2024 BEFORE H/H NANA ADWOA SERWAA DUA-ADONTENG OFORI SITTING AS THE JUDGE CASE NO. D6/003/2022 THE REPUBLIC VRS JUSTIN ATANDZE FINAL JUDGEMENT “The rape of a child is a violent act of contempt, not an expression of sexuality or affection.” ― Mike Lew, Gay Men and Childhood Sexual Trauma: Integrating the Shattered Self Regardless of the above, I am very minded by Article 19(2)(c) of the 1992 Constitution which provides that; “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.” The Accused stood before this court charged as follows; Count One Statement of Offence Defilement contrary to section 101(1) of the Criminal Offences Act, 1960 (Act 29) Particulars of Offence On June, 2022 at about 4;00pm at Atwima Agogo in the Atwima Nwabiagya in the Ashanti Circuit and within the jurisdiction of this court, did had (sic) carnal knowledge with one Erica Yeboah age (sic) 11 years of victim less than 16 years. 1 Brief facts Complainant Vida Frimpong is a trader, victim Erica Yeboah aged 11 years is a pupil of Atwima Agogo R/C. Whiles the accused Justin Atandze works as Plaster of Paris and all reside at Atwima Agogo. The witness Emmanuel Appiah@Omega is a mason and resides at Ejisu. The accused, his colleagues and the witness are(sic) working in an uncompleted building adjacent to the house of the complainant, and the victim had been going to the said house with her friends to play. On(sic) June, 2022, the victim and her friends went to the house of the accused to play. The accused asked the victim’s friends to leave the house because he wanted to send the victim and they left. The accused lured the victim to one of the rooms in the house and sexual intercourse with her once. Three days after, the victim went to the house again and the accused lured the victim into the same room and had sexual intercourse with her once. A week after the second act, the victim wen to the accused house and for the third time at the same room, the accused had sexual intercourse with the victim once. The accused threatened the victim not to disclose not to disclose the act to her parents else he will kill her and the victim with fear, kept the act confidential. On 22-08-2022, the complainant noticed a change in the victim’s ordeal od the accused act on her to the complainant. On 22/08/22, the complainant reported the matter to Abuakwa DOVVSU and police medical report form was issued to the complainant to send the victim to hospital for treatment and endorsement which she did. On 24-08-2022, the accused was arrested and in his cautioned statement to police denied the offence. Police visited the scene of crime with both parties which is an already built house. At the room where she was defiled by the accused thrice. Photographs of the scene were taken for evidential purposes. Witness statement was obtained from Emmanuel Appiah, a co-worker and had warned the accused to stop playing with the victim because of her age and further to that, he has sack (sic) the victim from the house more than two times. After investigation he was charged with the offence before this honorable court. PLEA The Accused plea was taken in Twi Language after the court explained to him what the available pleas were and the respective consequences of each plea. He pleaded Not Guilty to the charge of Defilement. 2 APPLICABLE LAW In the Supreme Court case of Eric Asante vs. The Republic [2017] Civil Appeal No. J3/7/2013 dated 2017-01-26 the apex Court held thus “In this wise it is relevant to state the ingredients of the offence of defilement which are as follows: (i) That the victim is under the age of 16 years (as provided for in Act 554). (ii) Someone had sexual intercourse with her; and (iii) That person is the accused. See the case of Republic V Yeboah [1968] GLR 248. The court in the Eric Yeboah (supra) again on the burden of proof held that “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would belief beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that through out a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408. However, beyond reasonable doubt does not mean beyond a shadow of doubt. The guilt of an accused person is sufficiently proved if the tribunal of fact is convinced that he committed the offence though there remains a lingering possibility that he is not guilty. See Oteng v The State [1966] GLR 352.” Prosecution’s Case It is the case of the prosecution that Vida Frimpomaa, mother to Erica Yeboah aged 11years noticed a change in her daughter’s health sometime in August, 2022. When she enquired from her child what was wrong, the child informed her that a man who was undertaking POP work 3 adjacent their house had had sexual intercourse with her three times on three different occasions. Prosecution says Vida reported the matter to the Abuakwa Police Station DOVVSU and was given a medical report to submit the child for examination and treatment. She subsequently led the police to arrest the accused whereafter accused was brought before the court for prosecution. The prosecution during the trial called the mother (complainant), the child (survivor) and the investigator as its prosecution witnesses. I will make a comment on the absence of the medical officer who authored the medical report that the prosecution lied on as proof of the child being abused. Given that this is a criminal matter and the burden of proof lies on the prosecution first to make a prima facie case against the accused, I shall not present the case of the accused yet but shall proceed to analyze the prosecution’s case which led to the court making a ruling that the prosecution had made a prima facie case which the accused had to answer. Prosecution witnesses Prosecution called the child as PW1. Let me be quick to add her that her evidence-in-chief was taken on 6th December, 2022 by the court differently constituted. The accused asked her a one question thereafter and sealed her mouth for further cross-examination. It was at this stage that the trial judge was promoted and the case stalled from then to 8th August, 2023 when the court became active again after taking over the case. Rather unfortunately, the accused person could not be located to appear before the court and a bench warrant was issued for his arrest and his sureties produced before the court. Accused was eventually produced by the sureties on 30th October, 2023 and remanded into lawful custody for being a flight risk. On 6/11/23, the court on the authority of Rep v. Stephen Opuni & 2 Ors (Criminal Appeal Case No. H2/25/2023 dated 3rd July, 2023 adopted the proceedings before the court and accused was admitted to his former bail for the trial to take its normal course. At this point although the accused took his plea in Twi Language and had in fact proceeded to cross-examine the PW1 in twi, he requested to proceed in Ewe and the court adjourned proceedings for an Ewe interpreter to be procured at the next adjourned date. There is the need to explain the trajectory of events because of a prayer made by the complainant, child’s mother during the trial that she had lost interest in the case because of the incessant 4 adjournments. The court explained to her that she had a right to opine her concerns which had duly been noted and further explained that the adjournments were partly because the court was without a judge for a few months and eventually when the case revived the Accused could not be located. However, with the activation of the case, the parties had mutually agreed to have the matter heard on a daily basis until its completion. This arrangement culminated in the case being concluded within six months of its reactivation. With due regard not to avert justice for a speedy trial, the court directed the accused person while on bail that he could still seek legal representation if he so minded and even explained that he could go to Legal Aid Services if he did not have the finances for paid legal services. Regardless, the accused continued the trial pro se on the argument that he could not procure the services of any lawyer. Having laid out the undertones of the trial, I will proceed with the evidence adduced by the prosecution witnesses. PW1 PW1 is the child who informed her mother, complainant/PW2 that she had been sexually assaulted on three occasions by the accused. The PW1 gave her evidence on oath (Bible) in Twi. It was her testimony that sometime in June, 2022, while in the company of her friends, the accused called them and sent them on an errand. However, he asked her to stay behind while her friend went on the errand and when they left, he lured her into his room and had sex with her. This act was repeated on three days after and again one week after. Then sometime in August, 2022 when her mother noticed a change in her health, she admitted to being assaulted by the accused and was sent to the hospital for examination and treatment. Thereafter, she in the company of her mother took the police to where the accused assaulted her. During cross-examination when accused questioned PW1 why she didn’t report the assault until her mother found out, PW1 answered that it was because accused threatened to kill her if she told anyone. Again, when the accused asked the PW1 whether she had any proof or witness to show that he slept with her, PW1 answered that there was no one around who saw them and her proof was 5 that there were many men working on the building so she had no reason to only point to him as her abuser if he had not abused her. Finally, when accused asked PW1 why she kept allowing him to sleep with her since she says he slept with her three times, PW1 answered that it was because he promised to buy her a phone which he did not. Section 59 of the Evidence Act, 1975 (NRCD 323) on evidence of witnesses; in this case a child provides that: (1) A person is not qualified to be a witness if he is- (a) incapable of expressing himself so as to be understood, either directly or through interpretation by one who can understand him; or (b) incapable of understanding the duty of a witness to tell the truth. (2) A child or a person of unsound mind is competent to be a witness unless he is disqualified by subsection (1) of this section. PW1 although a child was made to give her evidence on oath on the understanding to the court that she understood the nature of the oath and the consequences to testifying falsely. She was well articulated and testified without any coaching in the testifying room away of the courtroom via audio-video facilities in the presence of a court official. She answered to the questions asked by the accused person during cross-examination and maintained her answers through out that accused slept with her. Section 7 of NRCD 323 (1) Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. (3) Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict. 6 Section 7 of NRCD 323 mandates the court to rely on the evidence of the child even if uncorroborated so long as he is capable of expressing himself to be understood either directly or through interpretation and understanding the duty to be truthful. The question to ascertain is whether or not the evidence of the PW1 is relevant evidence and therefore admissible evidence. By virtue of sections 51(2) and (3) of NRCD 323, the rule of admissibility of any evidence is its relevance. The evidence of PW1 is a first-hand recount of what she says allegedly happened. Her evidence is the fulcrum of the prosecution’s case against the accused. I find her evidence to be of utmost relevance. In cross-examination, the accused was not able to establish conflict between the statement of the PW1 made to the police and the oral evidence made during the trial. PW1’s oral evidence was consistent with the witness statement filed on her behalf. She did not fidget or such a disposition of nervousness or inability to speak for herself or recollect events even during cross-examination. In evaluating the evidence of PW1, I find that the PW1 conducted herself as a credible witness. Section 80 (1) and (2) of NRCD 323 provide thus; (1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following:- (a) the demeanour of the witness; (b) the substance of the testimony; (c) the existence or non-existence of any fact testified to by the witness; (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; 7 (e) the existence or non-existence of bias, interest or other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness. In Republic v Asafu-Adjei (No2) 1968 GLR 567 CA the court found that there has never been a general rule in this country that a court in a criminal trial cannot convict an accused person on only the testimony of one witness if that witness is found to be credible and the evidence of the accused does not raise a reasonable doubt as to his guilt. The rationale for this rule was given in the English case of R. v Henry and Manning (1969) 53 Crim App Rep 150 where Salmon L.J said as follows at page 153 of the Report: “What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate, and sometimes for no reason at all.” Also, in Section 7 (5) it is provided as follows: “Nothing in this section shall preclude the court or any party from commenting on the danger of acting on uncorroborated evidence or commenting on the weight and credibility of admitted evidence or preclude the tribunal of fact from considering the weight and credibility of admitted evidence.” Though corroboration is generally not mandatory to secure conviction does not mean that where corroborative evidence could be obtained in a case, the prosecution can fail to lead such evidence 8 and turn round to argue that corroboration has not been made a requirement by the statute creating the offence in question. PW2 It is the evidence of PW2, mother of the child and complainant that she saw some changes in the health of her child following which the child admitted to being sexually assaulted by the accused. She says she was asked to send the child for medical examination which she did and thereafter assisted the police to arrest the accused. She submitted the medical report to the police which proved that her child had been abused. During cross-examination, accused asked the PW2 whether she had witnessed him having sex with the child to which PW2 answered that she had not but had no reason to disbelieve the child because many men had come to work in the area and the child had never made such an allegation against any of them. She went further to say that on one occasion, although it was raining, accused passed through the rain and came to stand behind her window to call the child. Finally, she concluded that in the presence of the investigator, accused offered to pay her off so that she will agree to forgo the case, that if he went innocent why would he want the case to go away. In Fori v Ayirebi [1966] GLR 627, SC, it was held that if a party fails to cross-examine his opponent or his witness while the opponent or the witness is in the box and he has the opportunity to react to his opponent’s case, the court should not attach much weight to the evidence that party later gives on his behalf on that particular issue after the opponent or his witness has left the witness-box. The accused did not cross-examine the PW2 on her testimony that he tried to call the child behind her window. In fact, the accused did not challenge PW2 on that testimony and just moved on to ask another question. Juxtaposing the Fosi v Ayirebi case (supra) with Gyan alias Amoah v Dabrah [1974] 2GLR 318 at 325, in which it was held that the rule on the consequences of the failure to cross-examine should not be applied strictly in the case of an illiterate unrepresented by counsel. 9 “The proper test to adopt is to find out whether there is positive admission of a fact in issue and if not whether there is contrary evidence from the opposing party’s side. Where there is an issue joined, this becomes an issue of fact to be decided on the credibility of the parties and their witnesses.” In this case, the literacy of the accused did not come into question, save to say he could during the trial understand English when same was spoken. He was as earlier mentioned not represented by counsel during the entirety of the proceedings despite being directed to do so if he so wished. Hence, his failure to properly cross-examine the PW2 on her evidence cannot be ruled as an admission of fact but a matter to be determined based on the credibility of the parties. In applying section 80 of NRCD 323 to the evidence of PW2, I find that even after cross- examination, there were no established inconsistencies between her statement to the police and her statement in court. I therefore find PW2 to be a credible witness whose evidence corroborated that of PW1. PW3 Before I analyze the evidence put forward by PW3, I want to correct some errors on the record. As indicated earlier, this case was an inherited part heard, with CMC conducted and part of the evidence of PW1 already taken. It was realized that in filing the witness statements, PW3 was labelled as PW4 creating the impression that there were four prosecution witnesses instead of three. It is important to state that the record was accordingly corrected on the surface of the process and this judgment is written reflecting the correction. Therefore, the last prosecution witness G/Constable Kesse Samuel is PW3 and not PW4. It is the evidence of PW3, that he is a police officer stationed at Abuakwa Divisional DOVVSU who on 22nd August, 2022 was referred to handle the case when the complainant made a report of sexual assault against her daughter. He says he issued a medical form for the child to be sent for examination and the medical form confirmed that the hymen of the child had been broken with the fourth and tip of the fifth finger able to penetrate the vagina. He proceeded that to ensure that the abused was indeed a minor by confirming from her birth certificate her date of birth. With the confirmation of her age and the medical report, he proceeded to arrest the accused on 24th August, 2022. Upon his arrest, the child identified the accused as the one who had sexual 10 intercourse with her on three different occasions and led the police to the room where she said the assault occurred. He proceeded to formally charge the accused with the offence of defilement and brought him before the court. PW3 tendered into evidence the Investigation Caution Statement of the accused marked as Exhibit A, Charge statement of accused marked as Exhibit B Police Medical Form issued on 22nd August, 2022 for the child to be examined marked as Exhibit C, birth certificate of the child marked as Exhibit D, photographs of the crime scene marked as Exhibit E series. The child was subsequently taken to Nkawie Government Hospital where she was examined by Dr. George Gad K. Han who submitted his report to the PW3 who in turn tendered it into evidence. During cross-examination by the accused when asked if there was any proof found by the police during investigation that accused has sexually assaulted the child, PW3 answered that the evidence was the medical report showing the child’s vagina had been penetrated and the child identifying accused as the perpetuator. Again, when asked whether the PW3 could produce the doctor who authored the medical report, PW3 answered in the affirmative but the doctor did not testify. The next issue for determination is whether or not failure to call the medical doctor as a witness was fatal to the prosecution’s case to wit, is it mandatory for the prosecution to call the medical doctor who examined the victim in a sexual abuse case, to testify during the trial? A medical doctor in a criminal trial regardless of his relevance to the society is merely but a witness just like any other witness. His expertise or otherwise in the medical field is only relevant to the testimony he proffers as long as the testimony is regarded as relevant testimony. Additionally, a medical doctor is what section 67 of NRCD 323 refers to as an expert witness. An expert witness should satisfy “the court that he is an expert on the subject to which his testimony relates by reason of his special skill, experience or training.” For clarity I shall reproduce the relevant sections of NRCD 323 on expertise evidence for ease of reference. Section 67 (1) A person is qualified to testify as an expert if he satisfies the court that he is an expert on the subject to which his testimony relates by reason of his special skill, experience or training. 11 (2) Evidence to prove expertise may, but need not, consist of the testimony of the witness himself. Section 112 If the subject of the testimony is sufficiently beyond common experience that the opinion or inference of an expert will assist the court or tribunal of fact in understanding evidence in the action or in determining any issue, a witness may give testimony in the form of an opinion or inference concerning any subject on which the witness is qualified to give expert testimony. Section 113 (1) A witness testifying as an expert may base his opinions or inferences on matters perceived by him or known to him because of his expertise or on matters assumed by him to be true for the purpose of giving his opinion or inference. (2) The matters on which a witness testifying as an expert bases his opinion or inference need not be admissible in evidence. (3) The matters on which a witness testifying as an expert bases his opinion or inference need not be disclosed before the witness states his opinion or inference, unless the court in its discretion determines otherwise, but he may be examined by any party concerning the basis for his opinion or inference and he shall then disclose that basis. Expert evidence is in fact opinion evidence. As aptly put in Phipson on Evidence (10th ed), para 1289 at page 478, “experts give evidence and do not decide the issue”. It is the duty of the court to rely on its own observation and not merely rely on the expert evidence. Under Section 121(2) of Act Criminal Procedure Act, (1960) Act 30, the court is to admit any document purporting to be an original report under the hand of a qualified medical practitioner relating to the nature or extent of the injuries of any person certified to have been examined by the practitioner if it is produced by a police officer, as evidence of the facts stated in that report. Section 121(2) does not require the medical report to be necessarily tendered by the medical officer and in fact makes room for the document to be tendered by the police officer. 12 A prosecution which fails to call a witness to corroborate the testimony of another witness does so at its own peril as that failure may raise a reasonable doubt in the mind of the court as to the guilt of an accused person. Especially if the sole witness turns out not to be a credible witness, the prosecution’s case will collapse. For instance, in the case of Republic v Yeboah (supra) the prosecution called medical evidence to the effect that the accused person had chronic gonorrhea and the victim was infected by him. Two friends of the victim who walked with her to the residence of the accused person and saw her enter there testified for the prosecution and this made the accused person to admit that the victim entered his room. So, despite the accused person’s denial of having sexual intercourse with the victim, the court convicted him on the corroborative evidence. Where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. But as stated above, in the absence of corroboration, if a court is convinced beyond reasonable doubt by the testimony of a sole witness, it may convict. However, in Kyiafi v Wono [1967] GLR 463 at 467 C.A the court per Ollennu J.A. said as follows: "It must be observed that the questions of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses." A court has to test its impression as to the veracity or truthfulness of oral testimony of a witness against the whole of the evidence of that witness and other evidence on record. See Ackom v Republic [1975] GLR 419. I find that although it would have made for better clarity if Dr. Gad had been called by prosecution to testify and possibly tender the medical report, it was not a prerequisite to the prosecution to establish the burden placed on it. I equally find that in the absence of the medical examiner, prosecution was able to produce credible witnesses whose testimonies allowed the prosecution to lay a prima facie case of defilement against the accused. 13 It was on the basis of this finding that the court at the prosecution’s case and in accordance with section 173 of Act 30 had made out a sufficient case to warrant the calling on the accused to open his defence in respect of the charge of defilement. Being an interlocutory order, accused was informed of his right to appeal the ruling without any leave of the court as stipulated by section 24(3) of the Courts Act, 1993 (Act 459) as amended. Accused’s Case Accused testified from the witness box, swearing on the Bible in Ewe. The accused maintained that he was innocent and did not understand why despite him being innocent he had still being brought to court. He stated that “I said I was not guilty. They have said a lot of things but since I am not guilty, I am not guilty. If I will die, I will die because I have not done anything. I am done.” Q. Is that all you want to tell the court? A. Yes During cross-examination by the prosecution however, accused stated that the child’s mother PW1 had heard of a stealing case in which he was involved at his workplace and it was after hearing of that case that she raised an issue of defilement against he, accused. That he had a cordial relationship with the mother, PW1 and had in the past even given her money. Accused insisted that he had not had sex with the child but did not disprove that he had had several encounters with her predominantly in the company of her friends. Accused concluded that to ascertain the veracity of what he was saying, both he and the child should be sent to the shrine. Having heard the defence of the accused, I find that he could not refute the evidence of the prosecution against him. Even in the absence of the medical doctor to explain the nature of the injury caused to the child, accused did not raise doubt in the court’s mind that he went to call the child from behind the window, he could not refute the testimony that he had sent the child’s friends on an errand and asked her to stay behind. He could not refute the fact that he had promised to give the child a mobile phone if she did not report their sexual experiences to anybody. His case that the child’s mother framed him because of a stealing case at his workplace 14 had no bearing to the case of defilement and it is unexplainable why the mother will decide to bring charges of defilement against him rather than say stealing. I find conclusively that the child is under the age of 16 years, someone had sex with her and that someone is the Accused. By reason of this finding, I find the Accused Guilty of the offence of defilement and accordingly Convict him for the offence. Pre-Sentence Hearing Upon finding the accused Guilty of the offence of defilement, Erica Yeboah, 11years, the court is bound to consider mitigating and aggravating factors which will determine the suitable punishment to meet out to him. Defilement is a 1st degree felony carrying between 7-25 years imprisonment. Aggravating factors 1. Long duration – Happened in June, 2022. No record of continuation beyond there. 2. Large Age difference – 22 years and 11 years hence 11 years difference. 3. Longer aged victim - No the age limit is 16 years. Victim is 5 years less of that. 4. Vulnerable victim – She has no physical challenges or mental challenges. She appeared in court stable and alert. 5. Victim becomes pregnant – No 6. Excessive violence – the medical report says victim presented no bruises or cut on the vaginal even though the hymen was broken and two fingers can be inserted. 7. Greater injury (physical or psychological) no evidence of same was submitted to the court. 8. Violation of sage place – Scene of crime is Accused person’s place not victim’s place. 9. Family – Accused person is a strange (no family. Accused person is not in a position of trust. He was not in charge of taking care of the victim. 10. Using drugs and alcohol – no evidence of same is submitted to the court. 11. Transmission of diseases – no evidence of same is submitted to the court. Mitigation Factors 15 1. Short duration – Yes. The offence in the month of June, 2023 and did not go on for a long period. 2. Lesser violence - No evidence of violence 3. Lesser injury – Breaking the Hymen 4. Low intellect of Accused – appeared in court as mentally stable and communicates in Twi and Ewe. Sentence Level 1. Few aggravating factors, many mitigating factors – 8-10 years Accused person’s circumstance 1. No, wife, children or dependents. No family in Kumasi to be affected by sentencing. 2. Community work or good work – none presented to court. Previous convictions – none presented to the court Breach of any court orders – none presented to the court. Seriousness of the offence: Defilement is a first-degree offence. Balancing the aggravating and mitigating factors, I lean on the mitigating factors since there is an absence of many of the aggravating factors. Prevalence of offence: There is no record to the court that indicates an upsurge or prevalence of offence within the jurisdiction of the court. Compensation: The medical examination and report for the child. SENTENCE 16 Summing up all the analysis above, I am reminded of a harrowing recollection of childhood sexual abuse by American author, Sierra D. Walters in her Memoir titled Debbie [2016] in which she says of sexual abuse; “It is not a single crime when a child is photographed while sexually assaulted (raped.) It is a life time crime that should have life time punishments attached to it. If the surviving child is, more often than not, going to suffer for life for the crime(s) committed against them, shouldn't the pedophiles suffer just as long? If it often takes decades for survivors to come to terms with exactly how much damage was caused to them, why are there time limits for prosecution?” The essence of the law is to give justice to all who come before it, victim and perpetuator. The buck does not stop at the foot of the victim who says she/he has been defiled and hence ‘off with her accused’s head’. The fundamental principle of justice is innocence until guilt is proven. Therefore, as painful or harrowing as the victim recounts her experience, the court must be able to firmly conclude that the accused caused the victim the abuse she recounts and met out punishment commensurate with the abuse. The Supreme Court affirmed the principles for imposing sentences upon a convicted person, namely in determining the length of sentence, the factors 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 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 court found an offence to be grave, it must not only impose a punitive sentence, the good record of the accused would be irrelevant. It is trite that a court has a wide discretion in imposing sentence so long as the sentence is within the statutory limits imposed on the court. The exact sentence passed in most cases depends to a large extent upon the discretion of the court as well as its statutory jurisdiction. Article 296 of the 1992 Constitution enjoins that discretionary power be exercised thus:- “(a) The discretionary power shall be deemed to imply a duty to be fair and candid. 17 (b) The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”. Article 14(6) of the 1992 Constitution provides:- “Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment”. On the totality of the above consideration particularly the time spent by the Accused person on remand in lawful custody, I sentence the Accused person as follows: - 8 years in prison with hard labour - Pay compensation of GHs500 to victim within one (1) month of this case. H/H NANA ADWOA SERWAA DUA-ADONTENG OFORI CIRCUIT COURT - AKROPONG 18