JINGO & 10 OTHERS VRS REPUBLIC (F22/25/2023) [2023] GHAHC 566 (19 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON THURSDAY THE 19TH DAY OF OCTOBER, 2023 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE AMADU JINGO & 10 ORS VRS THE REPUBLIC SUIT NO. F22/25/2023 - - APPELLANT RESPONDENT JUDGMENT This is an appeal against the sentence imposed on the Appellant by the learned trial judge, H/H Dorinda Smith Arthur (Mrs.), sitting at the Circuit Court, Cape Coast in the Central Region of the Republic of Ghana. The Appellant was arraigned before the Circuit Court, Cape Coast on the charge of stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). On the 8th day of October, 2019 and after the charge had been read and explained to the Accused Persons, the Appellant pleaded guilty with explanation. The Learned trial judge, after carefully listening to the explanation proffered by the Appellant, entered a plea of guilty since the explanation rendered by the Appellant was tantamount to a plea of guilty. The Learned judge proceeded to convict the Appellant on this basis and subsequently sentenced the Appellant to Eight (8) years IHL. In addition, the Appellant is to refund to the complainant, the amount of One Hundred and Eighty Cows multiplied by GH₵ 2000 after serving his sentence. This is what the learned trial judge said when sentencing the Appellant: I have considered that Accused person pleaded guilty without wasting the court’s time. He is a first-time offender. However, the act of A1 by stealing 180 cows without accounting for one to the complainant is a wicked way of dealing with the complainant that has spent monies spanning over nineteen years on A1 and the cows. I have considered that 15 of the cows have been retrieved. A1 abused the trust complainant had for him. I hereby sentence A1 to eight years IHL for count one. A1 to refund to the complainant the amount of 180 multiplied by GH₵ 2000 after serving his sentence. Events which culminated into the conviction and sentence of the Appellant are that, in the year 2000, the Complainant employed the Appellant and gave him forty (40) cattle for rearing. The Appellant was moved from Accra by the Complainant to Gomoa Panfokrom on a land acquired by the Complainant for cattle rearing. In 2010, the Complainant and the Appellant took stock of the cattle and found that the number of cattle had increased to ninety-seven (97). In 2016, the Appellant also employed one Abubakari Seidu (the 2nd Accused) to assist him take care of the cattle since the number of cattle had increased. In August 2019, the Complainant met the Appellant and after taking stock of the cattle, they found that the number had increased again to One Hundred and Eighty (180) cattle. On 25th September, 2019 one Mohammed Sheikh Farid (the 3rd Accused) reported to the Police that armed robbers attacked the 2nd Accused Person on 23rd September, 2019 and all the cattle had been stolen. Investigations led to the arrest of the Appellant together with the 2nd and 3rd Accused Persons. The 2nd Accused person told the Police that the cattle were stolen by the Appellant. Further investigation established that the 3rd Accused Person bought five (5) cattle from the Appellant. From the facts, the Appellant, together with the 2nd and 3rd Accused Persons are involved in the stealing of all the cattle and have promised to lead the police to the dishonest receivers. The Appellant’s sole ground of appeal, as gleaned from his Petition of Appeal filed on 25th April, 2023, is that the sentence is harsh and excessive having regards to the fact that he is a first time offender and has been ordered to refund the total amount of money involved. The Appellant thus prays this Honourable Court to reduce the sentence to the barest minimum. The import of this is that the conviction of the Appellant was in order or that the Appellant was rightly convicted. Thus, this Court only has to focus on the issue of whether or not the learned trial judge, in sentencing the Appellant, exercised her discretion judiciously. In arguing the appeal, Counsel for the Appellant contended that because stealing is a second degree felony with no prescribed punishment under Act 29, it therefore behoves a trial judge who is to impose sentence on an accused person to make reference to section 296(5) of Act 30 and where necessary, section 297(1) of Act 30. Counsel for the Appellant further argued, and rightly so, that long term sentences do not serve any modern purpose of punishment. He relied on Ameshinu v the Republic (2010) Civil Appeal, (Suit No. H2/18/2010) dated 22nd July, 2010 (delivered by the Court of Appeal), Kweku Frimpong @ Iboman vrs The Republic (2012) (Criminal Appeals No. J3/5/2010) dated 18th January, 2012 (delivered by the Supreme Court). In conclusion, Counsel for the Appellant prayed this court to take into consideration, the circumstances of the instant case which includes that old age of the offender (presently 64 years), how remorseful he became after the incident, how he did not waste the trial court’s time, how he did not fully benefit from the offence and finally how it is permissible by law that this Court grants the prayer of the Appellant by relying on section 297(1) of Act 30 and give a fine in lieu of the Appellant’s remaining sentence or reduce his sentence to the barest minimum. It is trite knowledge that sentencing is totally discretionary and this discretion is to be exercised within the confines of the law. In other words, the judge is to exercise its discretion fairly in compliance with Article 296 of the 1992 Constitution. The Courts have severally held, providing a list of factors to be considered by a court when determining the length of sentence. The list is as follows: 1. Any period of time spent in lawful custody in respect of the offence prior to the completion of trial in accordance with Article 14 of the Constitution; 2. The intrinsic seriousness of the offence; 3. The degree of revulsion felt by law abiding citizens of the society for the particular offence; 4. The premeditation with which the crime was convicted; 5. The prevalence of the crime within the particular locality where the offence took place or in the country generally; 6. The sudden increase in the incidence of the particular crime. 7. Mitigating circumstances such as the extreme youth, good character, remorse and reparation; 8. Aggravating circumstances such as the violence or the manner in which the crime was committed. See OWUSU BANAHENE V THE REPUBLIC [2017-2020] SCGLR 606; FRIMPONG alias IBOMAN V THE REPUBLIC [2012] 1 SCGLR 297; and KAMIL V THE REPUBLIC [2011] 1 SCGLR 300. Suffice to say that the above list is not exhaustive. The Courts keep adding to it on a case to case basis. The law is that an appellate court cannot disturb a sentence imposed by a judge in the exercised of her discretion unless it is proved that she did not exercise her discretion judiciously. See AKPEENA V THE REPUBLIC (CIVIL APPEAL NO. H2/23/2018) DATED 13TH FEBRUARY 2020 (DELIVERED BY THE COURT OF APPEAL). The necessity of interference would arise if the appellate court is 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. See APALOO V THE REPUBLIC (1975) 1 GLR 156 and ROBERTSON V THE REPUBLIC (CRIMINAL APPEAL NO. J3/4/2014) DATED 28TH MAY 2014 (DELIVERED BY THE SUPREME COURT). In appeals against sentence, as in this instant case, the duty of the Court is to find out whether there were mitigating facts which the trial judge took or failed to take into consideration. The law is that, if the record indicates that the learned trial judge took all the said mitigating factors into consideration before imposing the sentence, then his discretion can be said to have been properly exercised and in the absence of any special circumstances, the Appellate Court ought to be slow to interfere with such sentence. On the other hand, where the record reveals otherwise, then the Court must find out whether the said mitigating factors were such that if the trial judge had adverted his mind to them, he would probably not have imposed the said severe sentence. See ASAAH alias ASI V THE REPUBLIC (1978) GLR 1. In this instant case, it is clear that the learned trial judge took into consideration the mitigating factors the Appellant is urging this Honourable Court to take into consideration save for the old age of the Appellant and how he did not fully benefit from the offence. This can be seen in the learned judge’s first two sentences as follows: “I have considered that Accused person pleaded guilty without wasting the court’s time. He is a first time offender.” In the light of the above discussed law on sentencing, I am of the considered view that the mere fact of a person not being previously known to the law nor the age of the offender does not automatically entitle him to a lighter punishment. After all, these are only a fraction of the factors to be considered when passing sentence. The Supreme Court has held in the case of KWEKU QUAYE alias TOGBE V THE REPUBLIC (CRIMINAL APPEAL NO. J3/08/2020) DATED 28TH JULY, 2021 that any examination of the above reproduced list would put the seriousness of the offence first before mitigating factors that the court could consider at its discretion. This is exactly what the trial judge has done. A critical and thorough examination of the sentence by the trial court indicates that the discretion of the judge was heavily inform by the gravity or seriousness of the offence committed by the Appellant. The Appellant’s conduct of stealing 180 cattle entrusted to him for rearing, in my view, is very grave. I agree with the learned trial judge that this conduct is a wicked way of dealing with the complainant. In the circumstances, I am satisfied that the learned trial judge exercised her discretion judiciously. The Learned judge took into consideration the seriousness of the offence committed but never lost sight of mitigating factors when imposing her sentence. Therefore, on the authority of ASAAH alias ASI V THE REPUBLIC and KWEKU QUAYE alias TOGBE V THE REPUBLIC (supra), my discretion also lies against interfering with or disturbing the sentence. Having regards to the severity of the offence committed, eight (8) years imprisonment is only about a third of the maximum punishment prescribed for stealing in section 296(5) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Also, my opinion, the subsequent order by the trial court requiring the Appellant to refund the value of the cattle to the Complainant does not make the sentence harsh and excessive. On account of the foregoing, this appeal fails in its entirety. The sentenced imposed by the learned trial judge is hereby affirmed. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL EUNICE FRIMPONG ESQ. FOR THE APPELLANT. CALEB S. SENU ESQ. FOR THE RESPONDENT. 7