MOHAMMED VRS REPUBLIC (CR/0589/2022) [2023] GHAHC 624 (13 October 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 13TH DAY OF OCTOBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0589/2022 ALI MOHAMMED @ ALI KOSEI CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein and one other were charged with the offence of conspiracy to rob and robbery contrary to Sections 23 and 149 of Act 29/60 and arraigned before the Circuit Court Accra on the 18th day of July 2014. The appellant pleaded guilty with explanation on both counts one (1) and two (2) while the A1 pleaded not guilty to count one (1) and guilty with explanation on count two (2). The court after listening to the explanation of the appellant found that same did not amount to a defence and proceeded to convict him on his guilty plea and sentenced him to fifteen (15) years on count one (1) and twenty (20) years on count two (2), sentences to run concurrently. It is against this sentence that the appellant filed the instant appeal on the 22nd of July 2022 pursuant to leave granted on the 14th of July 2022. The grounds of appeal are that: 1. The sentence is harsh and excessive considering some circumstances around the case, the fact that the appellant did not waste the time of the court. 2. That the appellant has since learnt his lessons and it’s out of deep regret that he pleads for the mitigation of sentence. FACTS OF THE CASE The case of the prosecution is that the complainant Ephraim Nii Ayi Otoo is a Caterer and lives at Russia whilst accused persons Mohamadu Mumuni alias Osaman and Ali Mohammed alias Ali Kosei are potters and live at Russia and Kokomba Market respectively. On 1/07/2014 at about 1:30am, while complainant was baking meat pie in his kitchen, accused persons and two others now at large armed themselves with a pistol and a matchete and forcibly entered into the complainant’s kitchen. A1 pulled a pistol on the complainant and he became afraid and run into his bedroom, leaving his Techno mobile phone and a techno tablet phone and cash, about GHt 800.00 on his table. Accused persons and their accomplices took the complainant's mobile phones, the money and left the complainant's premises brandishing the matchete on the wall and threatening anyone who dared to approach them. The complainant reported the matter to the police and during investigation, A1 was arrested at his hideout at Kokomba market. When his kiosk was searched, complainant's Techno tablet mobile phone was found in the room. The prosecution added that the A1 admitted the offences in his investigation cautioned statement and mentioned his accomplices as Ali Kosei Tanko alias Gaza and Nabir. Police intelligence led to the arrest of A2 the appellant herein. A2 also admitted the offences in his investigation cautioned statement and coroborated the statement of A1. The accused persons were therefore arraigned before the court. RESOLUTION OF THE GROUNDS OF APPEAL The duty of the court in this judgment and any appeal against sentence is to consider the sentence meted out to the appellant to make a decision whether according to the law and statute, same ought to be disturbed. The first ground of appeal is that the sentence is harsh and excessive considering some circumstances around the case especially the fact that the appellant did not waste the time of the court. The offence of conspiracy to commit the offence of robbery is provided for by Section 23 and 149 of the Criminal Offences Act 1960 Act 29. Section 23 of the Criminal Offences Act 1960 Act 29 provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” The law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that criminal offence. Section 24(1) of Act 29 provides that: “(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence.” Robbery on the other hand is a first degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It is provided in Section 149 of Act 29/60 that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment for a term of not less than ten (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” Per the law, a person who commits robbery with the use of an offensive weapon or offensive missile shall be sentenced to a minimum of fifteen years imprisonment. A person who commits robbery without the use of offensive weapon or offensive missile shall upon conviction be liable to a minimum sentence of ten years. The maximum sentence for robbery of any form is life sentence. Sections 149 of Act 29 and 296 of Act 30 prescribe for a maximum sentence of life imprisonment for the offence of robbery. Section 296 of Act 30 which is on general rules for punishment prescribes the maximum sentence for offences where the provision creating the offence does not specify it. Section 296(1) of Act 30 provides thus: “Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or a lesser term.” From the above therefore, the minimum punishment the appellant could legally face for count one the offence of conspiracy to commit the offence of robbery was in the case of use of offensive weapon, fifteen years and without the use of offensive weapon ten (10) years to life imprisonment. The appellant was sentenced to fifteen years on count one conspiracy to rob and twenty years on count two the offence of robbery. The court was therefore within the confines of the law with regards to the sentence meted out to the appellant. The appellant has however asserted that considering the fact that he pleaded guilty simpliciter and did not waste the time of the court, that fact should have mitigated the sentence. In sentencing the accused person, the trial court stated that it had taken into consideration the fact that the appellant is a first time offender but added that robbery is on the increase so the court was going to give a harsh sentence to serve as a deterrent to others. From the facts of the case it was the first accused person Mahamadu Mumuni @ Osaman who pulled a pistol on the complainant. The facts of the case continues that the appellant and the other accused person brandished machete on the walls and threatened anyone who dared to approach them or resist them in any way. What constitutes an offensive weapon or missile is defined in section 206 (3) of Act 29. Section 206 (3) provides thus: “For the purposes of this section (a) “Offensive missile” includes a stone, or a brick likely to cause harm if thrown (b) “Offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. From the record of appeal, the trial judge properly took into consideration the aggravating and mitigating factors regulating sentencing before he settled on the sentences being appealed against. The question of sentence is a matter of discretion with all courts. Thus the decision of the court as to the length of sentence to impose from within the statutory limits is an exercise of the court’s discretion. Andoh J in Komegbe and Others v The Republic (1975) 2 GLR 170 referring to the statement of Lord Halsbury L. C. in Sharp v Wakefield (1891) A. C. 173 at 179 defined judicial discretion as: " ... Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ... according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself" In complying with due process of law our courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. The appropriate sentence to be imposed should depend on the nature of the offence, the offender that is the convict and the entire circumstances of the case. In Apaloo vrs The Republic [1975] 1 GLR 156 at 190, this court stated that: “The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case or that the sentence is wrong in principle”. The dictum of Taylor J (as he then was) in Haruna vrs The Republic [1980] GLR 189 at page 191 that: “The question of sentence was a matter of discretion with all courts of justice. However, the discretion was exercisable on well known principles. In awarding sentence, all the circumstances must be considered. If there were circumstances tending to mitigate the application of the deterrent principle, then reasons must be given why those circumstances must be ignored if a deterrent sentence was imposed. If it was not done, then the discretion had not been properly exercised and an appellate court could interfere with the said exercise of discretion. If, however, all the circumstances relevant to the question of appropriate sentence have been adequately considered, the exercise of a discretion by a lower court ought not to be impugned by an appellate court”. Therefore in determining this appeal for reduction of the sentence, I have considered the entire circumstances of the case particularly the facts supporting the case. I have also considered the fact that the appellant and his accomplices brandished machete on the wall to threaten people around with the intention of preventing or overcoming the resistance of anyone to the stealing. From the facts given, the manner of commission of the offence indicates that this was a planned attack and not a spur of the moment act. The appellant and his accomplices actually planned the attack and went to the house of the victim at 1:30am with a pistol and machete to execute their plan. In doing so, they managed to steal a Techno mobile phone, a techno tablet phone and cash of GHC800.00. Upon their arrest, the sum of money was not retrieved. I have therefore taken into consideration the fact that the money was not retrieved. On the other hand, the mitigating factors are that the appellant was in his youthful years, as stated by the court and he was not known to the law as he was a first time offender, The youthfulness of an accused person and the fact of the person having had just his first brush with the law are factors which trial courts are also mandated to consider as possible mitigating factors. Youthfulness itself induces leniency in the eyes of the law as the court takes the position that there are a lot of life lessons to be learnt by persons in their youthful years. Also a guilty plea by an accused person saves the Court time. It further shows how remorseful and repentant the appellant was at the time of the trial. Even though the court had indicated that it was imposing a deterrent sentence, it is the view of this court that the fact that the appellant had pleaded guilty simpliciter, his youthfulness and the fact that some of the items were retrieved are matters that the court should have considered in imposing sentence. Going by the above, the sentence of fifteen (15) years IHL on count one is hereby affirmed. I hereby set aside the sentence of twenty (20) years IHL on count two (2) and substitute a sentence of fifteen (15) years IHL on count two (2). The sentences will run concurrently. The sentence is to take effect from the 21st July 2014 when the Appellant was sentenced. H/L MARY M. E YANZUH HIGH COURT JUDGE COUNSEL: SELASI KUWORNU FOR LAWRENCIA ADIKA FOR THE REPUBLIC/RESPONDENT APPELLANT IN PERSON 11