Republic Vrs Sackey [2023] GHAHC 1 (26 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON THURSDAY THE 26TH OF JULY, 2023 BEFORE HER LORDSHIP JUSTICE JOHN-MARK NUKU ALIFO “J” SUIT NO: F22/16/23 THE REPUBLIC ------------------------- RESPONDENT VS. FRANCIS SACKEY -------------------------- APPELLANT APPELLANT PRESENT EUNICE FRIMPONG ESQ. FOR THE APPELLANT JOSEPHINE DEBORAH AWAH ESQ. (ASA) FOR RESPONDENT JUDGMENT This is a criminal appeal against the judgment delivered by His Honour, Bernard Bentil (as he then was) on the 23rd day of November, 2020 at the Circuit Court Ofaakor, in the Central Region. The accused was charged with four counts of the offence of Fraudulent Land Transaction contrary to section 34 (a) and (b) of Land Registry Act, 1962 (Act 122) and one count of Forgery of Official Documents contrary to section 159 (b) and (c) of the Criminal Offences Act, 1960 (Act 29). The facts presented by the prosecution in support of the charges against the appellant can be found on page 3 of the record as follows; Page 1 of 20 Complainants in this case are (1) Alimatu Amadu a trader living at Iron City, (2) Agatha Mensah a teacher resident at Kwanbondzi, (3) Sampson Adjei a pastor residing at Kasoa, (4) Jennifer Dery a trader residing at Papaase No.2 and (5) Mark Torgbor a state protocol worker residing at Papaase No.2. Accused Francis Sackey is a mason and lives at Papaase No.2. Somewhere in the month of June 2018, 1st complainant Alimatu Amadu purchased fifty-two (52) plots of land situated at Awutu Kwei from the accused at the cost of GH¢65,000.00 on behalf of her Boss one Seth Asamoah who is domicile in Libya. Accused prepared an indenture and forged signatures of Nana Kwame Kurabi III, Ebusuapanyi Nai Kofi Appiah, Odikro Nai Kofi Odae and Benjamin Quaye, secretary, chief and elders of Bawjiase and overlords at Awutu Kwei who are supposed to sign the indenture and handed it to the 1st complainant Alimatu Amadu. When 1st complainant visited the site, 2nd, 3rd, and 4th complainants prevented her claiming ownership of thirty-three (33), four (4), and three (3) plots respectively within 1st complainant’s 52 plots. 2nd complainant, Agatha Mensah, stated that she also bought the land from the accused in the year 2013 at the cost of Gh¢32,000.00. The 3rd complainant Pastor Sampson Adjei also bought four plots from the accused within the 1st complainant’s land at the cost of GH¢10,000.00, but he made part payment of GH¢4,000.00 in 2019. 4th complainant, Jennifer Dery, bought three (3) plots of land from the accused at the cost of GH¢3,000.00 and paid GH¢600.00 for documents which is also within the 52 plots of the 1st complainant. 5th complainant, Mark Torgbor, bought two plots of land from the accused person at the cost of GH¢2,500.00, but made part payment of GH¢500.00 to the accused person. When the complainants realised that the accused has defrauded them, they called him, but he failed honour their call and kept on telling them stories. On 16/11/2020, 1st complainant lodged an official complaint with the Police. On 17/11/2020, accused was arrested. Preliminary investigations revealed that accused did not have right to sell the land in question. Statement was obtained from Nana Kurabi IV, the Gyasehene of Bawjiase and overlord of Awutu Kwei. At the trial, the accused pleaded “Guilty” simpliciter to the charges. The trial judge convicted and sentenced the accused-appellant on his own plea to four years Page 2 of 20 imprisonment for both counts 1 and 2, two years imprisonment for counts 3, 4 and 5. The sentence of counts 1,2, 3 and 4 to run consecutively while the sentence for count 5 is to run concurrent with counts 1 and 2 and a further order for the accused-appellant to refund all the money to the complainants. Dissatisfied with the sentence, the appellant, with the leave of court granted by the High Court on 5th January, 2023 through counsel, filed a petition of appeal with the following grounds of Appeal as follows; 1) The trial judge erred when he made the sentence in counts 1,2,3 and 4 to run consecutively instead of concurrently. 2) That the sentences imposed on the appellant to run consecutively is too harsh. On 16th March, 2023, leave was granted the parties to submit their written submissions and legal arguments to facilitate its effective and complete determination. On 26th July, 2023, granted leave to the appellant to file supplementary written submission. ISSUES FOR DETERMINATION The petition of appeal engendered the following issues for determination gleaned from the two grounds of appeal: 1. Whether the trial judge erred when he made the sentence in counts 1,2,3 and 4 to run consecutively instead of concurrently? 2. Whether the sentences imposed on the appellant to run consecutively in the light of the facts and evidence before the court is too harsh? In dealing with the grounds of appeal, this court shall deal with the grounds of appeal seriatim. Page 3 of 20 1. THE TRIAL JUDGE ERRED WHEN HE MADE THE SENTENCE IN COUNTS 1,2,3 AND 4 TO RUN CONSECUTIVELY INSTEAD OF CONCURRENTLY. In arguing this ground of appeal, counsel for the appellant argued that the appellant was charged with four counts of fraudulent land transactions contrary to section 34 (a) and (b) of Land Registry Act, 1962 (Act 122). Counsel indicated that appellant is said to have sold various plots of land to complainants. However, all these plots are within a total of 52 plots and he dealt with them differently in relation to different people. Counsel relied on Section 302 (a) of the Criminal and Other Offences Procedure Act, 1960 (Act 30) which set out clearly how punishments run either concurrently or consecutively. Counsel for appellant argued that for the tenor of Section 302 (a) of Act 30 to apply, the acts must be in respect of one person or thing each of which is a crime. She opined that in the instant case and reading from the facts, all the transactions the complainants complained off were in respect of land within 52 plots of land. She further argued that by implication all the acts were done in respect of one thing, that thing being the 52 plots of land. Counsel relied on the Practice Note; (Blackie vs The State) (1962) 2 GLR 219 SC, where the court held that the offences committed by the appellant in respect of which the two indictments were preferred formed a series of offences and similar character. “The trial circuit judge in the instant case should have made the sentence of five years I. H. L to run concurrently with the former sentence imposed in the earlier case. Failure to do so meant that the appellant would be serving two consecutive sentences of five years I. H. L totalling ten years I. H. L. This in our view is manifestly excessive and we agree with the learned senior state attorney that the sentence imposed in this case should be made to run concurrently with the sentence imposed by the trial court on the 20th November, 1961”. It is the submission of learned counsel for the appellant that the Blackie Case supra, sits on all fours with the present appeal in the sense that though the transactions took place at separate times the offence formed a series of the same and similar character Page 4 of 20 being fraudulent transaction in land. Counsel further submitted that in the Blackie Case supra, the person was charged with two indictments but in the instant case the charges were put into one charge sheet, the more reason why the sentence should have run concurrently. Counsel cited the cases of Tetteh Asamadey Alias Osagyefo and Another vs. Commissioner of Police (1963) 2 GLR 400-402. (holding 2) and Banda vs. The Republic (1972 2 GLR 253 (holding 2) where the Court held that “Since it was a principle of sentencing that consecutive sentences should not have the effect of crushing an accused person, the total sentence of eight years imposed on the accused was under the circumstances excessive. The sentences should therefore run concurrently”. In summation, Counsel posited that from cases and statute cited, it is clear that the acts of the appellant were done in respect of one thing being the 52 plots of land and were done in execution of the same design which is to be engaged in fraudulent transaction in land. She prayed that the court exercises its discretion to make the sentence imposed on the appellant to run concurrently. In her response to this ground of appeal, Counsel for the Respondent cited the cases of Tuakwa vs. Bosom (2001-2002) SCGLR 61, Brown vs. Quarshigah (2003-2004) 2SCGLR 903 among others that in support of the rule that appeal is by way of rehearing. She also cited the case of Boso vs. The Republic (2008-2009) 1GLR 361 at 371 where Georgina Woode CJ (as she then was) held thus “The rule that appeals are by way rehearing is not limited to substantive appeals only, but the sentences passed provided an appeal lies therefrom”. Counsel for the Respondent argued that sentencing of accused persons upon conviction is at the discretion of the trial court within the confines of the law as evidenced by the provisions of articles 19(11) and 296 of the 1992 Constitution of the Republic of Ghana. Counsel further submitted that the forms in which sentence meted out to an accused person should run upon conviction is prescribed by statute and made reference to Sections 301, 302 and 303 of Criminal and Other Offences Procedure Act, 1960 (Act 30). Page 5 of 20 Counsel for Respondent summed up her interpretation of Sections 301, 302 and 303 of Act 30 supra as thus, sentences must run consecutively when the accused is charged with different offences unless the court directs otherwise while sentences must run concurrently when the charges for which the accused was convicted emanate from one continuous transaction and they were done in execution of the same design. Counsel cited the cases Banda vs. The Republic (1977) 2 GLR 219 and Adomako vs. The Republic (1984-86) 2 GLR 766 at 768 to buttress her point. In Banda vs. The Republic (supra), the appellant who stole the personal effects of four different complainant living in one village was charged with four counts of stealing and sentenced by the trial court to two years imprisonment to run consecutively for each count upon his plea of guilty. On appeal the High Court in allowing the appeal per holding 2 held as follows: “(1) a prerequisite for the award of concurrent sentences under Act 30, s.302(a) was that those several acts each of which constituted a crime should have been directed against one person or thing. The section was in applicable where, as in the instant case, the accused committed one crime against one person and thereafter went and committed that same crime against different persons. In such circumstance it was perfectly lawful undersection 303 of Act 30 to pass separate sentences for each count”. In the case of Adomako vs. The Republic at page 768 (supra) Mensah A. G “J” held as follows: “The cumulative effect of both sections 302(a) and 303 of the Criminal Procedure Code, 1960 (Act 30), is that when acts of an accused person are done in execution of the same design and that they form one continuous transaction, then the court should make any sentences imposed on the accused run concurrently and not consecutively. In fact section 303 of Act 30 is mandatory”. Counsel for the Respondent argued very strongly that the combined effect of the offence creating statute Section 34(a) and (b) of Act 122 and the punishment for a second-degree felony as prescribed in Section 296(2) of Act 30 are to the effect that the Page 6 of 20 offence of Fraudulent Land Transaction being the charge preferred against the appellant is a term of imprisonment not exceeding ten years. Counsel further submitted that the sentences handed down to the Appellant by the trial court which were four years imprisonment for both counts 1 and 2, two years imprisonment for counts 3 and 4 was proper and within the confines of the law. She further posited that the trial judge was justified in letting the sentences on counts 1, 2 and 3 run consecutively since per the particulars of offence of those counts of offences, the offence was committed by the Appellant against three separate and distinct complainants on different dates notwithstanding the fact that the subject matter of the offence was similar. Additionally, the offence couched in counts 1, 2 and 3 were not committed in furtherance of one grand design or transaction as held in Adomako v. The Republic (supra) and Banda v. The Republic (supra). The Respondent Counsel strongly argued that, the Appellant is misconceived on the premise of the decision in the Practice Note; Blackie v. The State [1962] 2 GLR 219 SC. Counsel for Respondent argued rather forcefully that the import of the holding of the Supreme Court in the Practice Note; Blackie vs. The State (supra) was that whenever there are two different charge sheets of criminal cases against the same accused person notwithstanding the number of counts of offences in those two charge sheets pending before the court(s), any conviction and subsequent sentencing on the first charge sheet does not amount to a previous conviction to be considered by the court during the sentencing upon conviction for the second charge sheet. Thus, the cumulative number of sentences for the counts of offences on the first charge sheet imposed by the court would run concurrently with the cumulative number of sentences to be handed by the court in relation to the second charge sheet against the same accused person. This means that the decision was necessary in determining the computation of terms of imprisonment to be served by an accused person who was convicted by a court or courts in respect of two separate charged sheets arising from different facts although the offences charged may be similar within the same period. Page 7 of 20 Counsel for Respondent emphasized that the instant case is distinguishable from the circumstances in the case of the Practice Note; Blackie vs. The State (supra). In the Practice Note; Blackie vs. The State (supra) there were two different indictments/charge sheets while in the instant case there is only one charge sheet. Furthermore, in the instant case the counts of offence for Fraudulent Land Transaction arose from three distinct transactions while in the Practice Note; Blackie v. The State (supra) the counts of offence or unlawful entry and stealing arose from one transaction in the first indictment and similar counts of offence in the second indictment which also arose from one transaction. Counsel therefore opined that the decision in the case of the Practice Note; Blackie v. The State (supra) is not applicable to the instant appeal. In her arguments, learned counsel for the Respondent made a critical assertion that the trial judge was wrong in letting the sentence of 2 years for count 4 run consecutively instead of concurrently. This is because the particulars of offence for count 4 clearly showed that the offence arose out of the continuous transaction involving the first, second and third complainants for which the Appellant was given a consecutive sentence for counts 1, 2 and 3. Thus, there was a breach of the procedure by the trial court regarding the sentence for count 4 which should run concurrently with the other counts instead of consecutively. In conclusion on this ground of appeal Counsel for Respondent submitted that the trial court did not err in law by letting the sentences for counts 1, 2 and 3 run consecutively and prayed the appeal be dismissed on this ground. She, however, submitted that since an appeal is by way of rehearing and not limited to substantive appeals only, this court should correct the sentence to allow the sentence for count 4 run concurrently with any of the sentences for counts 1, 2 and 3 in accordance with law. As aforementioned, this appeal begs the issues whether the trial judge erred when he made the sentence in counts 1,2,3 and 4 to run consecutively instead of concurrently. Page 8 of 20 Indeed, it has been held that an appeal is by way of rehearing. Thus in the case of Bakana Ltd vs Osei [2014] 77 GMJ 68 at 76, the court held that an appellate court as a rehearing court is to rehear an appeal as if the rehearing were the original hearing of the case and hence may comprehensively review the whole case by analysing the entire record of appeal, taking into account the testimonies and all the documentary evidence adduced at the trial before arriving at a decision. See also the cases of Tuakwa vs Bosom [2001-2002] SCGLR 61, Brown vs Quashigah [2003-2004] 2 SCGLR 930 Praka vs Ketewa 1964 GLR 423 SC. Thus, this court is enjoined by law to refer to the record to form its own opinion of the facts, case law and relevant statutes, in this case, to determine whether the trial judge erred when he made the sentence in counts 1,2,3 and 4 to run consecutively instead of concurrently. Article 19 (11) and 296 of the constitution 1992 relied on by counsel for the respondent provide as follows; No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. Where in this constitution or in any other law discretionary power is vested in any person or authority a) That discretionary power shall be deemed to imply a duty to be fair and candid; 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 and c) Where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not with the provisions of this constitution or that other law to govern the exercise of the discretionary power. In the case of Victor Ocloo vs The Republic [2014] 69 G. M. J. 173, it was held that sentencing is at the discretion of the court as long as it falls within the statutory limit Page 9 of 20 imposed by law. Under Article 296 of the Constitution 1992, when discretionary power is conferred on a person, he is enjoined to exercise it fairly and candidly in accordance with due process and devoid of any arbitrariness or personal dislike. See the case of Banda vs The Republic [1975] 1GLR 52, where it was held that “The exercise of the power of sentencing lay entirely within the discretion of the trial court, and provided the sentence fell within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that go in mitigation of sentence, an appellate court should not disturb the sentence only because it would have felt disposed to impose a lighter sentence if it had tried the case at first instance”. The records show that the appellant was charged with four counts of fraudulent land transactions contrary to section 34 (a) and (b) of Act 122. Counsel for appellant submitted that appellant is said to have sold various plots of land to the complainants. However, all these plots are within a total of 52 plots of land and the appellant dealt with the complainants differently. It is the submission of Counsel for the appellant that by implication all the acts were done in respect of one thing being the 52 plots of land. (The emphasis is mine), hence the sentence should run concurrently not consecutively. Counsel for the appellant in all his submissions tried with great ingenuity and skill with stretch of interpretation to convince this court that the various plots of land within the total 52 plots is one thing to bring it within the ambit of section 302 (a) and 303 of Act 30 and to be apposite with her argument that the sentences imposed on the appellant ought to run concurrently. From the facts of the case this Court cannot agree with Counsel for the appellant that different plots of land being 33 plots sold to the 2nd complainant, 4 plots sold to the 3rd complainant, 3 plots sold to the 4th complainant and 2 plots sold to the 5th complainant as one thing. It is the finding of this Court that though they all fall within the 52 plots of land sold to the 1st complainant they are obviously distinct from each other and tagged to different persons the appellant defrauded by his criminal conduct to which Page 10 of 20 he admitted. Should there be cadastral plans for these lands their dimensions obviously shall not read 52 plots on all 6 different lands hence they cannot be in relation to “one thing” for the purpose of this appeal. 301. Sentences consecutive unless the Court otherwise directs Where a person after conviction for a criminal offence is convicted of a different criminal offence, before sentence is passed on that person under the first conviction or before the expiration of that sentence, a sentence which is passed on that person under the subsequent conviction, shall be executed after the expiration of the first sentence, unless the Court directs that it shall be executed concurrently with the first sentence or a part of it. 302. Several crimes, or several acts done in execution of one criminal purpose With respect to cases where one act constitutes several criminal offences or where several acts are done in execution of one criminal purpose, the following provisions shall have effect: (a) where a person does several acts against or in respect of one person or thing, each of which is a criminal offence but the whole of which acts are done in execution of the same design, and in the opinion of the Court before which that person is tried, form one continuous transaction, that person may be punished for the whole of the acts as one criminal offence, or for anyone or several of those acts as one criminal offence, and all the acts may be taken into consideration in awarding punishment, but that person is not liable to separate punishments as for several criminal offences; and (b) where a person by one act assaults, harms or kills several persons, or in any manner causes injury to several persons or things, that person is punishable only in respect of one of the persons so assaulted, harmed or killed, or of the persons or things to which injury is so caused, but in awarding punishment the Court may take into consideration all of the intended or probable consequences of the criminal offence. 303. Saving in respect of concurrent sentences Page 11 of 20 (1) The Court may pass on a person convicted, at one or more trials of any two or more offences, a separate sentence in respect of which section 302 imposes certain restrictions in regard to punishment, and the separate sentences, if sentences of imprisonment, shall run concurrently and not consecutively, and, if sentences of fines, shall not operate in a manner that imposes the fines cumulatively. (2) Subsection (1) is without prejudice to section 302. Counsel for the appellant demonstrated such dexterity in her argument by citing the Practice Note; Blackie v. The State [1962] 2 GLR 219 SC and the case of Tetteh Asamadey Alias Osagyefo and Another vs. Commissioner of Police (1963) 2 GLR 400-402. (holding 2). The dictum in the Blackie case is lost on Counsel for the Appellant because the instant case is clearly distinguishable from the circumstances therein and cannot support her argument that the sentences ought to run concurrently. In the instant case, the counts of offence for Fraudulent Land Transaction arose from four separate and distinct transactions and not committed in furtherance of one grand design or transaction as in the Blackie case where the offence of unlawful entry and stealing arose from one transaction in the first indictment and similar count of offence in the second indictment which also arose from one transaction. I agree with the submission of Counsel for Respondent that per the dictum of Adomako vs. The Republic (supra) and Banda vs. The Republic (supra) there is no merit in upholding the assertion of the Appellant that these sentences should run concurrently since a holding in that direction would result in a contradiction with the clear dictates of law, particularly Sections 301 and 303 of Act 30. Therefore, in the court's opinion this ground of appeal is without merit, and same is hereby dismissed. In view of the fact that the trial judge should have made the count 4 run concurrent with either counts 1,2,3 this Court will correct the sentence to allow the sentence for count 4 run concurrently with count 3 based on the facts of the case and tenets of the law. Page 12 of 20 2. THAT THE SENTENCES IMPOSED ON THE APPELLANT TO RUN CONSECUTIVELY IS TOO HARSH. Per the argument of counsel for the appellant, sentences imposed on the appellant to run consecutively is too harsh, he being a young offender at age of 37 years and a first- time offender, having also pleaded guilty simpliciter not wasting the time of the court with a lengthy trial. Counsel cited the cases of Haruna vs. The Republic (1980) GLR 189-192, Banda vs. The Republic (1977) 2 GLR 253, Kweku Frimpong @Iboman vs. The Republic (2012 Criminal Appeal No. J3/5/2010 18th January, 2012 Dabla amongst others to support her arguments. In her response, counsel for the respondent admitted that per the record, there is evidence that the learned trial judge erred in making the 2 years sentence of the appellant on count 4 to run consecutively. She submitted that the trial judge erred when he ordered the appellant should refund the monies to the complainants without the further order of additional liability of the payment by the appellant of twice an amount equivalent to twice the value of the aggregate consideration received by the appellant in conformity with section 34 of Act 122. She further argued strongly that the sentence imposed on the appellant was neither harsh nor excessive as the judge prefixed his award of sentence with the statement that the appellant would be dealt with leniently. Counsel also submitted that the custodial sentence was also mandatory by statute and further that the judge was fettered by the requirements and case law to make the sentences of counts 1,2 and 3 to run consecutively. Counsel cited these cases to support her arguments; Apaloo & Ors vs. The Republic (1975) 1GLR 156 especially at pages 190-191, Razak & Yamoah vs. The Republic (2012) 2SCGLR 750 at pages 766-767, Asamoah Gyan vs. The Republic (2019) 132 GMJ 178 at pages 193-197 and Boyefio vs. NTHC Properties Ltd. (1997-98) 1GLR 768. Page 13 of 20 Learned Counsel fiercely resisted the attempt by Counsel for appellant to refer to the appellant as young offender. She posited that at age 37 years at the time of commission of the offence, the appellant legally did not fall within the category of persons defined as young offender within the true meaning of section 60 of the Juvenile Justice Act, 2003 (Act 653). She submitted on the whole the appeal of the appellant should be disallowed having regard to the circumstances of the case. The issue gleaned from the second of ground of appeal which this court must resolve is whether the sentences imposed on the appellant to run consecutively in the light of the facts and evidence before the court is too harsh? Pertinently, 34 (c) of the Land Registry Act (Act 122) designates the offence of fraudulent transaction as a second degree felony and the offender is liable to in addition to any other punishment that may be imposed, to pay am amount of money equivalent to twice the value of the aggregate consideration received by that person. According to Section 296(2) of Criminal and Other Offences Procedure Act, 1960 (Act 30) Criminal and Other Offences Procedure Act, 1960 (Act 30), “Where a crime, not being a crime mentioned in sub-section (5), is declared by any enactment to be a second-degree felony and the punishment for the crime is not specified, a person convicted shall be liable to imprisonment for a term not exceeding ten years”. It is pertinent to note that the appellant did not appeal against the conviction but just the sentences being consecutive and is asking this Court to make the sentences to run concurrently. The legal issue on the ground of appeal has been aptly set above in this judgment. Page 14 of 20 I agree with Counsel for the Appellant that the question of sentence is at the discretion of the court and that same must be exercised judiciously within the confines of the law such as statutory obligations where the law prescribes the length of sentences. Article 296, of the 1992 Constitution imposes a duty thus: “Where in this Constitution or in any other law discretionary power is vested in any person or authority- (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the 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; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulation that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.” This provision is a sacred, and sacrosanct proceeding from the sovereign will of the people of Ghana to enjoy the judicious use of the exercise of discretionary power in the administration of justice. It is a canon that serves to promote the duty to be fair and just in accordance with our laws. The very fabric of society would be plunged into an abyss of despondency without the constraints that it lends to the high reputation of the rule of law. It is my considered opinion that the learned trial judge exercised the said discretion within the ambit of Article 296 supra in the sentencing of the appellant save that he erred in letting count 4 run consecutively instead of concurrently as afore held in this judgment. This Court has determined that the dictum in the Blackie case and that case of Banda (supra) are clearly distinguishable and cannot support Counsel for appellant`s argument that the sentences ought to run concurrently. In analysing the position of the law on sentencing, it is apposite to refer to the locus classicus case of Kwashie & Anor vs. The Republic (1971)1 GLR 488-498. In Page 15 of 20 dismissing the appeal against the excessiveness of sentence, the court- per Azu Crabbe J. A as he then was held inter alia that: “Since the offence was of a very grave nature, the sentence must not only have been punitive, but it must also have been a deterrent or exemplary in order to mark the disapproval of society of such conduct by Police Officer. When a court decides to impose a deterrent sentence, the nature of the subject matter of the charge and the good character of the accused become irrelevant. The Learned Jurist stated further that, in determining the length of the sentence, the factors which the trial judge is entitled to consider are: i. ii. iii. iv. The intrinsic seriousness of the offence. The degree of revulsion felt by the Law abiding citizens of the society for that particular crime. The premeditation with which the criminal plan was executed. The prevalence of the crime within the particular locality where the offence took place or in the country generally. v. The sudden increase in the incidence of the particular crime and vi. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. In the case of R vs. Blake (1962) 2 QB 377, where in dismissing an appeal against a maximum sentence of 14 yeas` imprisonment, Hilbery J stated that: “It has been said rightly that in passing sentence a judge has to consider the offence and the offender but he has to also to consider the interest of society”. It is trite that as a principle, sentencing is a matter of discretion for the and trial court and an appellant court will only interfere when in its opinion the sentence is manifestly excessive having regard to the circumstances of the case and all mitigating factors or when the sentence was wrong in principle. See Owusu Banahene vs. The Republic (2019) 149 G. M. J 231. S. C. and also Apaloo vs. The Republic (1975) 1GLR 156. Page 16 of 20 Counsel for the appellant sought to sway the court to agree with her submission that custodial sentence was not mandatory by the offence creating section of Section 34 (c) of Act 122 when she boldened the word “may” which is persuasive and not mandatory. However, she entangled herself by stating Section 296 (2) of Act 30 (supra) which makes custodial sentence for such a second degree felony mandatory with the express use of the word “shall”. This Court therefore rejects the argument of Counsel that the trial court had a discretion not to impose a custodial sentence within the tenants of the statute. The sentences imposed by the trial court for all the courts being 4 years each for counts 1 and 2, and 2 years each for counts 3,4 and 5; were less than half of the maximum term of 10 years sanctioned by Section 296 (2) of Act 30 (supra). It is trite learning that where a statute has prescribed a procedure to follow on an issue it is only that procedure that can be taken. See the case of Boyefio vs. NTHC Properties Limited (1997-98) 1GLR 768 where the Supreme Court in holding 3 held as follows: “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure that was to be followed.” It is also evident on the record at page 5 of the record of appeal that the trial judge considered all the mitigation factors before sentencing the appellant on his own plea. The trial court took into consideration the fact that he was a first offender and had pleaded guilty without wasting he court`s time. The least said about Appellant Counsel`s classification of the appellant as young offender at age 37 years the better. It is incredible that Counsel would make such argument in the face of the definition of a young offender and young person in Section 60 of the Juvenile Act, 2003 (Act 653). It is also the final submission of Counsel for the appellant that: “… considering the observation by the judges in the cases of Haruna and Iboman on the fact that long Page 17 of 20 sentences do not serve any modern purpose, it is prayed the court exercises its discretion to temper with the sentence imposed on the appellant”. In his Book Textbook on Criminal Law in Ghana, (2021), Daniel Korang at page 162-163 stated as follows, “Denunciation remains a key purpose of criminal punishment. The theory behind denunciation as an objective of sentencing is to express society`s disapproval of the crime. The crimes in the penal statutes reflect the behaviours that society disapproves of and that society has deemed do not accord with our value system. As such, the theory is less abort plaining blame on the particular offender and more about defining the values and moral code that we expect people in society to adhere to”. See the cases of R. vs. Sargeant (1974),60 Cr. App. R 74 at p. 77, R. vs. Nasogaluak, 2010 SCC 6, (2010) 1 S. C. R at p.49 and Ryan vs. The Queen (2001) 206 CLR 267 at p.118. The Learned Author continues “Without punishment it seems likely that victimising conduct would become so prevalent as to make life nasty and brutish. Prevalence of crime in society creates terrible levels of neurosis, fear and panic in society especially where the perpetrators are not apprehended, tried and punished. To leave a criminal act is close to condoning it since punishment acts as a re- assertion that the law has been broken and it expresses the moral indignation of the community”. Both parties have largely advanced sound legal arguments, which I have taken into careful consideration in order to be fair and just in this appeal, in accordance with the laws. I shall therefore be constrained by the tenets enshrined in Article 296 supra in the matter of the appellant’s sentencing. The Court has given considerable thought to the very sound arguments in the supplementary written submission filed by Counsel for Appellant on 26th July, 2023 with the leave of this Court. The Court has taken cognizance of the fact that although presently incarcerated the Appellant through his relatives has initiated Page 18 of 20 steps of reparation to some of the victims of fraudulent actions before judgment, ostensibly as a way of seeking mitigation by refunding the sums Ghs32,000.00 to Agatha Mensah and Ghs3,600.00 to Jennifer Dery respectively; The Court would consider such a mitigating factor in a favourable light and will deal leniently with the appellant in this appeal. In the case of Baah vs. The Republic (1991) 1GLR 483-490, the Learned Jurist Kpegah JA (as he then was) at page 490 held: “I hold the view that it is in bad taste for a trial court after conviction to aggressively demand that an accused make reparation or pay the amount he is said to have stolen from another before sentence is imposed on him. It will add a lot more decency to our criminal process, which is admirable for its accusatorial nature, if a remorseful offender is left alone to offer reparation. I have no doubt that such an offer and compliance by an accused should be taken into account when it comes to sentencing. I do not think the two positions, which may appear mutually exclusive, are in any way contradictory. Any contrary opinion will, in my humble view, make otiose and meaningless the elaborate provisions of section 147 of Act 30 as amended by Act 254”. Upon a careful examination and consideration of the petition of appeal, written submissions and legal arguments of the parties, the judgment of the trial circuit court appealed against in this Court, the various statutes, judicial precedents, legal principles and authorities, I hereby affirm the sentencing of the appellant by the trial circuit court on counts 1, 2 and 3 to run consecutively but hereby set aside the sentencing on count 4 as it was in error and same must therefore run concurrently with count 3. Consequently, ground (1) of the appeal is dismissed. It is in the light of the aforementioned opinion of the Court and in the exercise of the courts discretion that this Court hereby sets aside the sentencing of the appellant by the trial circuit court to four years imprisonment for both counts 1 and 2, two years imprisonment for counts 3, 4 and 5 as too harsh for the appellant as a first offender. Page 19 of 20 In place of same, I hereby impose a sentence of 2 years imprisonment for count 1, 1year imprisonment for count 2 and 9 months imprisonment for counts 3, 4 and 5. The sentence of counts 1, 2, and 3 to run consecutively. Counts 4 and 5 to run concurrently with count 3. Imprisonment commencing from the day of pronouncement of the earlier sentence on 23rd November, 2020 in keeping with SECTION 296 (2) OF THE CRIMINAL AND OTHER OFFENCES (PROCEDURE) ACT, 1960 (ACT 30). The appeal thus succeeds on ground 2. This Court hereby also sets aside the sentence by the trial circuit court for the appellant to refund all the money to the complaint as same is not in accordance with law. The appellant is to pay money equivalent to twice the aggregate consideration received from the complaint in conformity with Section 34 of Act 122. CONCLUSION; It is worth noting that the State has a duty to protect society from criminals and people with propensity to violence to ensure social harmony and to maintain law and order. As long as crime exits, imprisonment is unavoidable. However, punishment according to the reformative theory is seen as reforming or rehabilitating the offender but not to destroy him. This sentence should be deterrent enough to would-be criminals as it is fair and just and the appeal thus succeeds on ground 2. (SGD) JOHN-MARK NUKU ALIFO HIGH COURT JUDGE CAPE COAST Page 20 of 20