APPIAH AGEYI MOHAMMED VRS THE REPUBLIC (EAS/NKW/HC/F15/2025) [2024] GHAHC 381 (19 December 2024)

1 19-12-2024 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD AT NKAWKAW - EASTERN REGION ON THURSDAY THE 19TH DAY OF DECEMBER, 2024 BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE. ------------------------------------------------------------------- CASE NO. EAS/NKW/HC/F15/01/2025 APPIAH AGYEI MOHAMMED VERSUS THE REPUBLIC -------------------------------------------------------------------------------- PARTIES Appellant in lawful custody. LEGAL REPRESENTATION Nana Owusu Poku Esq. for the Apellant present. Cyril Boateng Keteku Esq. appears for the Respondent. The substantive Counsel for this case is Irene Sitsofe Attipoe Esq. -------------------------------------------------------------------------------- JUDGEMENT ----------------------------------------------------------------------------------- This is an appeal against the Judgment of the District Court, Nkawkaw in the Eastern Region, dated the 22nd October day of 2024. The court was presided over by His Worship Isaac Agyei. The Appellant was charged with one count of causing unlawful Damage contrary to Section 172 [1] [b] of the Criminal Offences Act 1960 [Act 29.] On 22/10/2024 the Appellant pleaded guilty to the count. He was convicted on his own plea and sentenced as below: By Court- The accused is hereby convicted on his own plea. Accused is hereby sentenced to 60 months in prison custody section 300 of Act 30 to apply. On the 1th Day of November 2024, the Appellant filed a Petition of Appeal It is the sentence of the Appellant that has given birth to this appeal. The law is settled that an appeal be it civil or criminal is by way of rehearing. This means, the appellate court is entitled to examine or review the entire record of proceedings including the judgment, decision or the order appealed against. After the review, the appellate court has the power to make its findings or come to a different conclusion from the trial court. See: • Apaloo V. The Republic [1975] 1 GLR 156 CA. • Tuakwa V. Bosom [2001-2002] SCGLR 61. • Dexter Johnson V. The Republic [2011] 2 SCGLR 601. Henry Kwaku Owusu V. The Republic [2016] 98 GMJ 95 SC. The meaning of the statement that an appeal is by way of rehearing in criminal cases was stated by Dotse JSC in the Dexter Johnson case (supra) on pages 669- 670 as follows “What therefore meant by an appeal being by way of rehearing is that the appellate court has powers to either maintain the conviction and the sentence or set it aside and acquit and discharge or increase the sentence”. I fully endorse this position in this judgment which I cannot depart from by way of the principle of stare decisis. It therefore behooves on this court to consider in its entirety the appeal records before me and substitute this court as the trial court. See Henry Kwaku Owusu V. The Republic (2016) DLSC2882. SUMMARY OF FACTS: Complainant, Alimatu Sadia is a shop keeper and stays at Kwahu Bepong. The Appellant Agyei Mohammed is 22 years old unemployed but lives with the complainant her biological mother in the same house. On the 15/10/24, the Appellant went to the complainant‟s shop and requested for money. The complainant told him to come later for the money since she had not made any sales that morning. The Appellant fuming with anger, entered the provision shop and caused damage to a gallon of cooking oil, quantity of rice and a showcase glass all valued GH¢1,000.00. The Complainant upon sensing danger called her other children who came to arrest the appellant to the Bepong Police Station and lodged a complainant to the police. Appellant in his investigation caution statement admitted the offence. After investigation he was charged with the offence of Causing Unlawful Damage. THE PRESENT APPEAL: The Appeal was filed on 1/11/2024. The petition of Appeal contains the following grounds of Appeal: 1. GROUND OF APPEAL [a] The sentence of 60 months is considered too harsh, excessive and unreasonable having regard to the age of the Appellant and the offence of misdemeanor committed. [b] That the sentence of 60 months will destroy and not reform the Appellant. It should be recalled that on the 12/11/24 counsel for the Appellant indicated to the court that he has abandoned his Appeal against conviction. From the above grounds, there is no doubt that the gravamen of Counsel‟s Appeal is against the Sentence. Summary of submission filed by Counsel for the Appellant. Counsel filed his written submission on the 29/11/2024. In his submission counsel argued both grounds 1 and 2 together. He submitted as follows: • • That the trial judge did not take into account the fact that the appellant is a first-time offender as well as his remorsefulness. That the offence that the Appellant committed is a misdemeanor That the sentence will destroy rather than reform the Appellant. Summary of submission filed by the Attorney for the Republic. The Assistant state Attorney filed her submission on the 12/12/24. She submitted as follows: • • • • • • • • That Counsel for the Appellant erroneously stated that the offence the Appellant committed is a misdemeanor. The Appellant was charged, convicted and sentenced under Section 172[1] [b] of Act 29. The sentence was within the statutory limits of the law That the trial judge is mandated to consider several factors when imposing sentence as listed in Kwashie v. Republic [1971]1 GLR 488 at 493. The appellant admitted his guilt when the charge was read and explained. The appellant is a first time offender. The property that got damaged has been valued as GH¢1,000.00 The court could have imposed a less severe sentence considering the early plea, the age of the appellant for purposes of reformation. That it is proper that the court interferes with the sentence. ISSUE: The main issue for the determination by this court is whether the sentence meted out to the Appellant by the trial court is harsh and excessive. Addressing the issue: It should be noted that, despite the fact that counsel for the Appellant set out two grounds of Appeal, he argued both together without any differentiation. In my view, this is because all the two grounds of Appeal border on the harshness or the excessiveness of the sentence. Before I go to the merits of the appeal, to refresh our minds, I wish to state the nature of the offences at stake. Section 172[1] [b] of Act 29 provides: Causing unlawful Damage “A person who intentionally and unlawfully causes damage to a property to a value of exceeding one million cedis commits a second degree felony”. Having stated the above offence, It should however be noted that the general rules for punishment as indicated in Section 296 [2] of Act 30 states as follows: “A person charged with an offence which is a second Degree Felony can be liable for imprisonment for a term not exceeding 10 years except the offences listed in Section 296 [5] of Act 30.” Section 296 [4] also states, “a person charged with an offence declared by an enactment to be a misdemeanor and the punishment for that offence is not specified a person can be convicted to a term of imprisonment not exceeding 3 years.” Examining the charge sheet, I am of the view that, the Appellant was charged under Section 172 [1] [b] of Act 29. Contrary to the assertion of counsel for the appellant and as rightly noted by the Attorney for the Republic, the offence in the said section is not a misdemeanor but instead a second degree felony offence. Although the appeal is not against conviction, it is trite that the District court has a capping on the term of imprisonment that it should not exceed. See section 48[1] of Act 620 Courts [Amendment] Act 2002 Now what should be a trial court‟s consideration in determining the Appropriate Punishment or sentence? 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. There are plethora of authorities that state that, the court in imposing sentences has a duty to consider the entirety of the case to identify circumstances that are present. The trial court is under a legal obligation to balance both the aggravating and mitigating factors before imposing a sentence. To see some of these aggravating factors listed above, the case of Kwashi v. the Republic [1971] GLR 488 will be a good reference point as rightly noted by the Attorney for the respondent. Also, mitigating factors could include the age of the offender, whether he is a first offender, character, inter alia. The court must strike that imperative balance between these two factors to arrive at a reasonable sentence. Honestly, the fact that a convict is a first offender does not necessarily guarantee him a light sentence. For example, if a convict intentionally causes serious harm and is found guilty, it will be unconscionable for the court to let him go free or give him a light sentence because he is a first offender. The court thinks that, such is not the idea behind the mitigating factor being a first offender because despite being a first offender, the court must indeed look at the three; the offence, the offender, and the society at large. It is also worthy of note at this point to consider the Modus Operandi, the way the crime was hatched and perfected. All these would determine whether the court would consider a convict as a first-time offender and therefore is deserving of mercy. To be factored into all these considerations, will also be the gravity of the crime committed and the incidence of its commission (whether it is on the increase) and the revulsion of society of that crime for i.e. Defilement. Taking a cue from judicial precedent on this issue, the court held in Adu Boahene v. The Republic [1972]1 GLR 70 that, “where the court found an offence to be very grave, it must not only impose a punitive sentence but allow a deterrent or exemplary one so as to indicate the disapproval of society of that offence”. What the court will take into consideration is whether such verdict would satisfy the society such that, they will report a crime instead of taking the law into their hands. Generally, the court must strike a balance between these aggravating and mitigating factors especially if the ground of appeal is that, the person is a first time offender. However, if the crime is premeditated and violently committed by the convict, then obviously he has divested himself of any lenient consideration. Bringing all these considerations to bear in the instant appeal, the records do not show that the appellant is known. In fact, there is nothing on record to show that the Appellant was given the opportunity to make prayer for mitigation of sentence. There is also no indication that the appellant was represented at the trial. There is nothing on record to show that the trial court actually considered any aggravating and mitigating factors in arriving at his decision of 60 months IHL. In the face of the Record specifically the charge sheet, the age of the Appellant was given as 22 years. Since there is no indication that he is known on record, I presume that the Appellant is a first time offender and also a young man who has shown remorse as a result of the crime he committed hence his early Plea of Guilty, but was convicted and sentenced to 60 months IHL. Whether the trial Magistrate has jurisdiction to impose a sentence of 60 months IHL unless under his enhanced jurisdiction under section 300 of Act 30 is of interest. However the Appeal is not against conviction. Nevertheless, trial magistrate did not give reasons for the imposition of the said sentence. He did not consider aggravating and mitigating factors listed above before the imposition of the sentence. Again, there is nothing on record to show that the accused threw away his mother‟s wakye as postulated by counsel for the Appellant but rather, caused damage to a gallon of cooking oil and some quantity of rice and a showcase glass. The Magistrate reference to Section 300 of Act 30 which has to do with enhanced sentence in previous convictions is not borne out from the record. There is nothing on record to attest to the fact that the magistrate inquired whether the Appellant is known. At page 420 of Criminal Procedure and Practice in Ghana 3rd Edition, Justice Dennis Dominic Adjei noted that „a court seeking to do Justice to the parties in a case shall receive evidence from the parties to inform itself to enable it pass the appropriate sentence‟. This is to avoid serious miscarriage of justice. I must reiterate that in this Appeal, the trial Court did not invite the Appellant to make a pre-sentencing statement after his conviction. Perusing through the record, this court has noted an aggravating factor such as the convict being in a position of trust and breaching that trust by committing the offence to his own mother by damaging the items listed in the facts of the case. In spite of the aggravating factor noted above, I will consider the accused/ Appellant youthful age of 22 years. It should be noted that, there is nothing on record to show that the appellant is known and so, I will consider him as a first-time offender. I will also consider his early plea of guilty as one of the mitigating factors. I am also guided by the Ghana Sentencing Guidelines 2015 which puts premium on mitigating or aggravating factors such as value of the property at stake, premeditation or spur of the moment in passing a sentence in respect of an offence which revolves around damage to or loss of property. The court has painstakingly considered the entire case, there is no doubt that the Appellant committed the offence in the spur of the moment. The Appeal is of merit, the sentence was so excessive and will not aid in reformation of the character of the Appellant who caused unlawful damage to his mother‟s property on a spur of moment, the value of the items damaged is estimated to be GH¢1,000.00. This court will set aside the sentence of 60 months imprisonment imposed on the Appellant by the District Court, Nkawkaw and impose a sentence of 3 months imprisonment. The Sentence is to take effect from the date of his conviction. Appeal succeeds. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE