ABDUL RAZAK VRS THE REPUBLIC (D15/11/2021) [2024] GHAHC 402 (16 October 2024)

1 16-10-2024 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD AT NKAWKAW - EASTERN REGION ON TUESDAY THE 16TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE. ---------------------------------------------------------------------------------------------------- SUIT NO. D15/12/2021 ABDUL RAZAK VERSUS THE REPUBLIC -------------------------------------------------------------------------------------------------------- PARTIES 1st Appellant in lawful custody. LEGAL REPRESENTATION Irene Sitsofe Attipoe Esq. holding the brief of Cyril Boateng Keteku for the Republic present. Benjamin Agyapong Esq. for 1st Appellant absent. --------------------------------------------------------------------------------------- JUDGEMENT -------------------------------------------------------------------- The appellant herein in exercise of his right to appeal permitted under the law has launched this appeal against the judgment of the Circuit Court Mpraeso, delivered on the 18th of June 2021. This was after time has been extended for him by this court to file the Appeal. The charges upon which the appellant was convicted and sentenced are as follows; 1. Unlawful Entry contrary to section 152 of Act 29/60 2. Stealing contrary to section 124[1] of Act 29/60 The appellant pleaded not guilty to the charges. The case went through a full trial and after the close of trial, the Appellant was accordingly convicted and sentenced to 5 years IHL for each of the two charges against him to run concurrently. The appellant, obviously being dissatisfied and aggrieved with the sentence of 5 years IHL for each count imposed on him by the trial Judge has appealed to this court on the following Grounds of Appeal. I wish to reproduce the salient part of the Petition of Appeal. 1) PART OF THE JUDGEMENT COMPLAINED OF The whole judgement. 2) GROUNDS OF APPEAL I. The five years sentence imposed on the convict is harsh and excessive having regard to the mitigating factors in favor of the convict. II. Any other grounds will be stated upon receipt of proceedings and judgement. 3) RELIEFS SOUGHT FROM THE HIGH COURT I. The conviction imposed on the Accused/Appellant be set aside. II. Reduction of the sentence or alternatively fine be imposed on the accused. SUMMARY OF THE FACTS: On 27/01/2020 at about 7:00pm, complainant a businessman, went to his warehouse at Mamaso, Nkawkaw where he stores his quantities of cooking oil for running his supermarket at Nkawkaw Central market. He detected theft of 379 gallons of 25litres Frytol Cooking Oil valued GH¢65,400.00. The complainant asked neighbours who lived around about the incident and per his findings, one Umar Farouk a witness informed him that, Appellant has been carting from his warehouse gallons of cooking oil on several occasions. Complainant reported the case to the police on 03/02/2020. That on 29/3/2020, the Appellant was arrested. According to the facts, he managed to have duplicate keys to the warehouse for his operations. The appellant on the day of trial pleaded not guilty and was tried and convicted for the offences leveled against him and sentenced as stated above. I will reiterate that the Appellant, being dissatisfied and aggrieved with the sentence imposed on him caused his Counsel to file a Petition of Appeal after the court had granted an application for extension of time within which to appeal on the 19th of June 2023. The Apex Court in Ghana, has stated in a plethora of respected decisions that an appeal is by way of rehearing of a case and Just like a civil appeal, criminal appeals are also by way of rehearing and an appellate court as a rehearing court, is to rehear an appeal and hence may comprehensively review the whole case. See the cases of Dexter Johnson v. The Republic [2011] SCGLR 601, and Bakana Ltd v. Osei [2014] 77 GMJ 68. The above cited principles therefore empower this court to consider this appeal in its entirety and substitute itself as the trial court by analyzing the circumstances of this case, the plea of the appellant who was the accused person vis- a -vis the sentence imposed on him to determine whether there is merit in this appeal. PETITION OF APPEAL The appellant Petition of appeal in principle was against conviction as well as the sentence as noted in Relief [3] of the Petition of Appeal erroneously titled Notice of Appeal. However, in Counsel’s submission filed on the 24/4/2024, he failed to make submission in respect of the ground pertaining to conviction. In law this means that counsel has abandoned the said ground see; Adams Addy & Another Vrs. Solomon Mintah Ackaah [J4/19/2021] [2021] unreported SC 14th April 2021] Kulendi JS. Therefore the sole ground of Appeal is the Appeal against the sentence stated as follows: I] The five years sentence imposed on the convict is harsh and excessive having regard to the mitigating factors in favor of the convict. ISSUE FOR DETERMINATION 1. Whether the sentence of the appellant was overly excessive taking into account all the mitigating and aggravating factors. SUBMISSION BY COUNSEL FOR THE APPELLANT: Counsel for the Appellant filed his submission dated 24/4/24. However, the Respondent did not file any written submissions in respect of this Appeal as ordered by this court. In arguing his ground of appeal, Counsel for the appellant submitted that the appellant was sentenced to 5 years imprisonment for each offence to run concurrently. He rightly noted the legal parameters for interference by an appellate court as stated by the Supreme Court in the case of Robertson Vrs. The Republic [2013-2014] 2 SCGLR 1505 as follows: “the principles upon which the court would act on appeal against sentence were that it would not interfere with a sentence on a mere ground that if members of the court had been trying the appellant they must have passed somewhat different sentence. The court would interfere only when it was of the opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle.” Counsel also listed the factors that a court will consider before determining the length of a sentence. According to counsel, in the case at hand, the trial court save the consideration that the convict is a first offender did not consider other mitigating factors such as the age of the Appellant which is 23 years, dependents, ability to pay a fine and that the trial judge was under a legal obligation to balance both mitigating and aggravating factors. He submitted further, that it is this sentence that the appellant is aggrieved and dissatisfied with because same is harsh and overly excessive, hence he is urging on this court to take into accounts the mitigating factors and tamper justice with mercy by reducing the sentence. He stated that Modern Jurisprudence indeed supports restorative justice and frowns on Custodial sentence because restorative justice is more beneficial and economical to society. Counsel further argued that a 1st offender should be given the opportunity to reform. And play his role in the society. Counsel referred the court to the cases of Frimpong @ Iboman Vrs. the Republic [2012] 1 SC GLR 361 and Owusu Banahene Vrs. the Republic (2017/18) SCGLR @ 606 among others. By way of refreshing our minds, it is necessary that I reproduce what the offence creating sections say. Section 152 of the Criminal Offences Act, 1960, Act 29 as amended, states as follows; “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony.” „124 [1] states as follows: “A person who steals commits a second degree felony.” As pointed out by Counsel for the Appellant in his written submissions, the Apex court has postulated in a plethora of cases the factors that a court ought to consider when determining the length of sentence. Some of the cases in line are The Republic vrs. Adu Boahen [1972] GLR 70-78 and Kwashie Vrs. the Republic [1971] 1 GLR. In determining the length of a sentence, the factors which the trial judge is entitled to consider are: [a] The intrinsic seriousness of the offence; [b] The degree of revulsion felt by the law -abiding citizens of the society for the crime, [c] The premeditation with which the criminal plan was executed, [d] The prevalence of the crime within the locality where the offence took place, or in the country generally, [e] The sudden increase in the incidence of the particular crime, and [f] Mitigating or aggravating circumstances such as extreme youth good character and the violent manner in which the offence was committed. See, Sakyi Vrs. The Republic [2010] 34 MLRG 188 C. A. pages [202-203] per Kusi Appiah J. A. It also bears stating that, a punitive or deterrent sentence, may be passed so as to indicate the disapproval of society of that offence and where the court finds an offence to be grave. This was enunciated in the case of Frimpong alias Iboman V. The Republic supra. In sentencing the Appellant herein, the trial judge rightly noted that both the offences of Unlawful Entry and stealing are all second degree felony offences. The trial Judge also rightly noted the provision in section 296 [5] Act 30/60 which provides as follows: “A person convicted of a crime under any of the following sections of the criminal Act 1960 [Act 29] that is to say sections 124, 128, 131, 138, 145, 151, 152, 154, 165, 239, 252, 253 and 260 is liable to a term of imprisonment not exceeding twenty –five years.” It should be noted that, both offences that the Appellant was charged have been listed in section 296 [5] with a term of imprisonment not exceeding 25 years. Therefore the sentence meted out to the Appellant by the trial judge was within the ambit of the law. The court notes that the trial court took into consideration the period the Appellant spent in lawful custody as noted in Article 14 [6] of the 1992 Constitution of Ghana. It is also on record that the court took into consideration the fact that the Appellant is a first time offender, his youthful age, as well as his plea of leniency and mercy made to the court in the dock. As required by law, the trial court also took aggravating factors such as the Appellant breaching the position of trust and how the Appellant as a former employee of the complainant managed to have access to the duplicate key to open the warehouse of the complainant to steal from him. The trial court rightly noted that the action of the convict was premeditated and cruel. Under Section 30 (a) (ii) of the Courts Act 1998, Act 459, an appellate court may in appropriate cases, alter the finding, maintain the sentence, or with or without altering the finding, reduce or increase a sentence on appeal. However, there are settled principles on which the appellate court can so act. One such basic principle is that, an appellate court will not interfere with a sentence of a lower court unless the sentence was found to be manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle as earlier noted. See the case of Robertson Vrs. The Republic [2013-2014] 2 SCGLR 1505. As Counsel for the Appellant said, the appellant is a first time offender but in my view, the appellant did not commit this offence as a novice. It is trite knowledge that, a first offender may not deserve judicial clemency if there are certain aggravating circumstances to justify harsher sentence where for instance a first offender in committing the offence uses cruel, or advanced methods of committing the crime. In such instance, a first offender should be punished harshly. See the case of Kwashie & Ano V. The Republic 1971 1 GLR 488-496 where it was held that; “Where an offence is of a grave nature the sentence must not only be punitive, but it must also be deterrent or exemplary in order to mark the disapproval of society of the particular offence”. The court noted at page 494 that upon these facts which reveal an offence of a very grave nature, the sentence must not only be punitive but it must also be deterrent or exemplary. The sentence must mark the disapproval of our society of such conduct by the appellants (emphasis mine). Where the court decides to impose a deterrent sentence, the value of the subject matter of the charge and the good record of the accused become irrelevant. ..”. See also the case of Adu Boahen V. the Republic [1972] 1 GLR 70. The counsel noted that the trial judge should have taken other mitigating factors like the Appellant’s age, dependents, ability to pay a fine into consideration. I must say that after a careful perusal of the entire record in this present appeal, I cannot but disagree with Counsel for the Appellant that the trial court did not consider mitigating factors in this case. The trial court took a number of mitigation factors brought to his attention into consideration such as the Appellant being a first time offender, the youthful age of the accused person, plea of leniency made by him in the dock etc. In fact, the trial Judge’s attention was not drawn to any dependents as counsel is suggesting. It needs mentioning at this stage that it is trite knowledge that where the crime was pre- arranged or pre-meditated and expertly executed, that may go to enhance the sentence. It has been said in a plethora of cases such as; Kamil V. the Republic 2011 1 SCGLR 300, that; “Sentencing is an exercise of discretion by a trial Judge and as long as the Judge has kept within the confines of what the law prescribes and had also considered the necessary aggravating and mitigating factors before passing the sentence, an appellate court, even if it would have imposed a different sentence must be slow to substitute its own with that of the trial judge”. See also the cases of; Haruna V. the Republic 1980 GLR 189, Nana Yaw Owusu V. the Republic [2020] DLCA 9263. It should be noted that, it was within the discretion of the trial judge to give a fine or a custodial sentence and he decided on the latter, upon considering how the crime was executed. See Ghana Sentencing Guidelines 2015 . However, the trial court considered sufficient mitigating and aggravating factors before handing over the sentence. It should also be recalled that the Appellant did not plead guilty to the charges which could have been a mitigating factor, but instead the trial court had to go through full trial to find him guilty. Besides he even denied his cautioned statement and that necessitated a voire dire [mini trial] which was also found against him. Aligning my thoughts with the earlier noted decided cases, and weighing the aggravating circumstances against the mitigating factors, I am of the respectful opinion that the court below dealt adequately with the Appellant with regard to the sentence meted out to him. This is because the offence of stealing and Unlawful Entry could attract a maximum sentence of 25 years for each offence. It should also be noted that the trial judge considered the couple of months the accused spent in lawful custody both before he met the bail condition and after the trial when he was remanded into custody pending the delivery of the judgement. This is in accordance to Article 14 [6] of Constitution 1992. It bears mentioning that, I am not determining how I would have exercised my discretion in this given situation. I am considering whether given the wide spectrum of discretion at the disposal of the trial Judge he exercised it within the parameters of the law. This Court does not find any mitigating circumstances justifying a sentence lower than what the trial Judge imposed, and so from the rendition of the position of the law in the cases referred, I am satisfied that the exercise of discretion by the trial Judge in imposing the sentence of 5 years imprisonment for each offence to run concurrently on the appellant was properly conducted. I see no reason why I should disturb the sentence imposed by the trial Judge. However with hindsight, I will reconsider the Appellant being a first time offender and revise the sentence as follows: Four [4] years for each offence to run concurrently and a fine of 333.33 Penalty Units estimated to be GH¢4000. In default of payment of the fine, the Appellant will continue to serve his 5 years imprisonment for each offence to run concurrently as decided by the trial Judge. For the sake of clarity, I hereby set aside the sentence of 5 years imprisonment on each offence to run concurrently and substitute same with a sentence of 4 years IHL on each count to run concurrently with a fine of 333.33 penalty units estimated to be GH¢4,000.00. In default of the payment of the fine, the Appellant will continue to serve his earlier term of 5 years imprisonment for each offence to run concurrently as stated at the trial court. The sentences must commence from the date of his conviction. Accordingly, this appeal succeeds. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS.) HIGH COURT JUDGE