AGYEI VRS REPUBLIC (CC15/005/2024) [2023] GHAHC 617 (10 November 2023)

1 IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON THURSDAY THE 10TH DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. CC15/005/2024 APPIAH AGYEI CONVICT/APPELLANT VRS. THE REPUBLIC RESPONDENT ==================================================================== JUDGEMENT This appeal from the conviction and sentence handed down by the Circuit Court presided over by Her Honour Lily Amoah-Kankam on 15th August, 2023. The convict/Appellant was charged with the offence of Dishonesty Receiving contrary to section 146 of the Criminal Offences Act, 1960 (Act 29). Upon his arraignment he pleaded guilty consequently he was found guilty and convicted on his own plea and was sentenced to six (6) months imprisonment. Now being aggrieved by the said sentence, the convict/Appellant has appealed to this court on the ground that: (a) The sentence of six (6) months I. H. L. is harsh and excessive judging from the circumstances of the case. (b) The court erred when it failed to consider mitigating factors in sentencing the accused. It may be prudent to reproduce below, the facts of the case and the sentence entered by the court below, the basis for which this appeal has been launched. It reads: “Complainant is an over the counter drugs store operator whiles A1, A2 and A3 are mason, trader and student respectively. They all reside in Kintampo. On 19/7/2023 about 12:45pm, complainant reported to the police that on the same day about 6:45pm he received information that his drugs store situated along the Municipal Assembly Road has been broken into on receipt of the information, he proceeded to the shop where he detected that thief or thieves had broken into the store through the ceiling and made away with Dell Laptop Computer and its accessories valued Ghc4,500.00 which were in its black pack and cash the sum of Ghc500.00 in addition to some assorted pharmaceutical drugs which valued about Ghc10,000.00. In the course of investigations A1 was arrested and admitted having stolen the items. He was taken to the scene where he demonstrated how he gained access to the shop by breaking the outside ceiling before gaining access to the shop. A search was conducted in A1’s room and a black Laptop Dell Computer pack was identified as the one he kept Dell Laptop Computer in A1 stated further that he sold the laptop computer to A2 who own electrical appliances shop at Kintampo for Ghc800.00. A2 was subsequently arrested and he also corroborated the statement of A1, A2 further added that he also sold the exhibit laptop to A3 for Ghc1, 500.00 A2 led the police to A3 who is a student of Kintampo college of Health and was also arrested. The exhibit Dell Laptop Computer was then retrieved from A3. Complainant identified the exhibit laptop computer as his. In her cautioned statement. A3 told the police she bought the laptop computer from A2 at the cost of Ghc1, 500.00. After investigations all the accused persons were charged with the offences stated on the charge sheet and brought before the Honourable Court” On record the accused persons pleaded guilty simpliciter on all the charges against them. They were accordingly convicted on their guilty plea and accordingly sentence. In fact from the record, A2 was sentenced to 6 months imprisonment on count 4 which is dishonesty receiving. Furthermore the court in sentencing A2 made the statement to the fact that A2 who is in business of selling laptops to pay an amount of Ghc800.00 for laptop and later sold it for Gh1, 500.00 means that he was fully aware of the value of the laptop at the time of the purchase and should have exercise due diligence and that A2 was not remorseful. Now, in arguing the grounds of appeal concurrently by the learned counsel for the convict/Appellant relied on his petition of appeal and statement of case, he submitted that the court in passing the sentence against the appellant did not take into consideration mitigating factors before passing the sentence learned counsel for the appellant further submitted that although the court stated that the appellant was not remorseful, however according to the counsel this is contrary to the unsubstantiated position taken by the court and that rather the Convict/Appellant was remorseful and also did not waste the court’s time, all these are factors that should inure to the benefit of the Convict/Appellant, but the court did not consider it. Finally the learned counsel for the Convict/Appellant finally conclude as follows: “My lord, by failing to consider some of these mitigating factors (at least as far as the record of proceedings show) some injustices has been visited on the appellant because it is my view that if the court had meticulously considered the mitigating factors enumerated above, the court would have punished the appellant differently and not in this harsh manner” Furthermore learned counsel for the Convict/Appellant urge this appellate court to evaluate the law, the facts and all other circumstance of this case and decides the fate of the convict/Appellant in a manner that will shape his future and make him a better person in society. Especially so when he has spent over 1(one) month in prison and has learnt his lesson the hard way. In reply the learned state Attorney has stated with quite amount of force that there is no merit in the appeal. In deed according to the learned state Attorney contrary to the argument made by the learned counsel for the Convict/Appellant the court took into consideration myriad of mitigating factors before passing sentence on the appellant and further also avers that, that the court enquire from the prosecution,, if the Appellant was known to the law. The learned state Attorney further argues that the trial court also noted that the convict/Appellant was not remorseful, as a court of first instant, the trial court was the court that observed the demeanor of the Convict/Appellant through trial and based on her observation passed sentence fit to punish the Convict/Appellant. In any case, according to the learned State Attorney assuming without admitting that, the court even allegedly refused to consider the mitigating factors mentioned by the learned counsel for the appellant before sentencing. We submit that in as much as in Ghana sentencing, same does not in any way replace the discretion of the court in imposing sentence as long as they are right in principle and the court contends for same to achieve purpose. Finally the learned State Attorney submitted that the trial court had justification in imposing the sentence that it did and that same to be punitive to the appellant who the court observed was not remorseful, though he pleaded guilty simpliciter to the offence of dishonesty receiving preferred against him, my lord for an offence for which the trial court could impose a sentence up to 25 years the court definitely took into account a number of mitigating factors. For this reason we pray that the judgment and sentence of the trial Circuit Court should not be disturbed by this Honorable Court. In the case of KINGSLEY AMANKWA (alias Spider) VRS. THE REPUBLIC (Criminal Appeal No. J 3/04/2019) (2021) unreported Supreme Court Judgment which was given in 21st July, 2021. The Supreme Court as per Venerable Dotse J. S. C stated as follows; “One of the clearly settled principles of law which admit of no controversy is that an appeal is by way of re-hearing. The question is what does it mean? In essence what it means is that, as an appellate court, whenever an appeal comes up for hearing, the appellate court must consider. Its task as re –hearing. The appellate court must put itself in place of the trial court as in this instance and consider in detail whether the trial of the appellant conformed to settled principles governing the proof of criminal cases by the prosecution and this must be based on settled time tested principle of proof beyond reasonable doubt. In determining whether the trial court and the intermediate court of Appeal performed their role of hearing and re-hearing the matter the cases which come up for consideration no doubt must include the following which were referred to by counsel for the Respondent………..” Therefore criminal appeal as a way of re-hearing the following then would constitute useful Guidelines or criteria that an appellate court will embark upon when it is re- hearing a criminal appeal as in the instant cases; namely; (1) In considering an appeal as one of re-hearing, the appellate court must undertake holistic evaluation of the entire record of appeal. (2) Evaluation must commence with a consideration of the charge sheet with which the appellant(s) was charged and prosecuted at the trial court. This must involve the evaluation of facts of the case relative to charges preferred against the appellant. (3) This also involves an assessment of statutes under which the charges have been laid against the appellant(s) an evaluation of whether these are appropriate vis-à- vis the facts of the case. (4) An evaluation of the various ingredients of the offences preferred against appellant(s) and the evidence led at the trial court has established key ingredients of the offence or offences preferred against the appellant. (5) There must be assessment of the entire trial to ensure that all witnesses called by the prosecution lead evidence according to the tenets of the evidence Act, NRCD 323. (6) To ensure that the entire trial conforms to the rules of natural justice. (7) Evaluation of exhibits tendered during the trial documentary or otherwise to ensure their relevance to the trial and in support of substance of the offence charged and applicable evidence. (8) A duty to evaluate the application of the facts of the case, the law and the evidence led at the trial vis-a-vsa the decision that the court has given. (9) To ensure that the basic principles inherent in a criminal prosecution that is to ensure that the prosecution had proved or established the ingredients of the offences charged beyond reasonable doubt against the appellant had been established. (10) In other words appellate court, and the trial court like Supreme Court, must ensure that even if the appellant’s defence was not believed it must go further to consider whether his story did not create a reasonable doubt either. Furthermore let me state certain basic principles underlying our criminal justice system as a prelude to considering the grounds of appeal raised before this court. The first is accused person is presumed innocent until prosecution proves or establishes the contrary this is constitutional guarantee provided under Acticle 19(2) (c) of the constitution of 1992 which states as follows: 19 (2) A person charged with a criminal offence shall (c) Be presumed to be innocent until he is proved or has plead guilty. The next is that throughout the trial of the accused person the prosecution has the burden to prove each ingredient of the charge against the accused beyond reasonable doubt. See section 11(2) of the Evidence Act, NRCD 323. In our instance appeal however, the appellant pleaded guilty simpliciter indeed A. N. E. AMISSAH in his MONUMENTAL Book “CRIMINAL PROCEDURE OF GHANA” which was published in 1982 at page 10 stated that “A plea of guilty is judicial confession which disposes of the obligation on the prosecution to prove the case” Furthermore section 239 (1) of criminal and other offences (procedure) Act 30 states that; “A plea of guilty when recorded shall constitute a conviction” In fact laws in this country regards guilty plea as a critical step in the trial process because of its legal implications. The temptation to convict an accused who pleads guilty to a charge is real one. Being a solemn declaration in open court a plea of guilty may carry a strong presumption of verity. A guilty plea properly made constitutes an effective waiver to go through plenary trial. However for the waiver to be valid. It must be intentional relinquishment abandonment of a known right or privilege, hence the accused must beware of the direct consequences of the plea for there to be a knowing and intelligent waiver of the constitutional right. It is therefore important that the record of proceedings must expressly state that the accused voluntarily and conscientiously made guilty plea unless voluntarily after proper advice and with understanding of the consequences. Once the record shows plea of guilty that should be the end of the matter and conviction stand – see page 247 “OF DANIEL KORANG book CRIMINAL PROSECUTION IN GHANA (practice and procedure) However, since in this appeal, the appellant pleaded guilty simpliciter he is not challenging the conviction but rather appealing against sentence. Therefore, I propose to consider all the grounds of appeal globally in considering this grounds of appeal. It must be said that appeal is by way of re-hearing I have taken my time to peruse the whole record of proceedings, the charge sheet and the passing of the sentence next I have taken a clinical look at the passing of sentence on the appellant by the trial court and I am of the candid opinion that the court did not take into consideration any mitigating factor before passing sentence on the appellant in fact in pre-sentence hearing this is what ensued between the court and the appellant. A2 (appellant herein) Q. Any plea in mitigation A. I am praying for forgiveness. It will never happen again. Q. How old are you? A. 32 years Q. Are you married? A. Yes. Q. What work do you do? A. I repair and sell laptops Q. Prosecution is he known A. No, my lady After these questions and answers the court went ahead to pass sentence on A2 (the appellant herein) as follows; “A2, who is in the business of selling laptops to pay an amount of Ghc800.00 for the laptop and later sold it for Ghc1, 500.00 means that he was fully aware of the value of the laptop at the time of purchase and should have exercised due diligence. A2 was not remorseful. He is sentenced to six (6) months imprisonment on count four (4). From the above statement by the court, it is clear that, the court did not take into consideration any mitigation factor(s) before passing sentence on the Appellant, it is rather very strange that the court rather created aggravating .circumstance in punishing the Appellant by saying that, he was not remorseful of the offence committed, with due respect this findings by the trial Circuit Court is not borne by evidence on record, on the contrary, how can we say that somebody who did not waste the court’s time by pleading guilty simpliciter, thus avoiding the state the huge expenses of committing resources to trial the appellant, has not shown remorse. Indeed sentence is a regulated judicial exercise. After valid conviction, the sentencing judge is not left to impose sentence according to his own whims and caprices. The sentence, to be imposed on convict is regulated by statute and certain well-known principles which have been religiously applied in our courts. The first duty of a sentencing Judge is to ensure that he acts within the sentencing parameters prescribed by relevant statute. When the statute prescribes minimum and maximum limits the sentencing Judge has a discretion in imposing a sentence within the statutory range. In the exercise of that discretion, the Judge must be guided by some considerations which have come to be known in criminal jurisprudence as mitigating and aggravating factors, where aggravating factors may influence a Judge to impose harsher or enhanced sentence mitigating factors may induce a Judge to reduce the sentence. In fact in the case of ABU & ORS. VRS THE REPUBLIC it was held at holding 1 that; (1980) G. L. R. 244-302 “In imposing sentence, it seemsto me that the court has a duty to consider all aggravating and mitigating circumstance” Also in the case of ASAA alias ASI vrs. THE REPUBLIC (1978) G. L. R. 1-3- Apatu Plange J (as he then was) stated at page 2 of the Report as follows; “Now and dealing with appeal of this nature the court has to find out whether there were any mitigating factors which the trial Magistrate took or failed to take into consideration if the record reveals that he took all the said mitigating factors into consideration before imposing the sentence, then his discretion can be said to have been properly exercised in the absence of any special circumstances an appellate court will be slow to interfere. If, however, the record does not reveal that the trial Magistrate took any such mitigating circumstances into consideration, then the appellate court will find out whether the said mitigating factors were such that if the trial Magistrate had adverted his mind to them, he would probably not have imposed the said sentence” Furthermore in the IMRRAIM VRS THE REPUBLIC (1991) 2 G. L. R. 39 KPEGA J (as he then was) also in emphasis the need to look at mitigating factor in passing the sentence wrote as follows; “In condemning a sentence as too severe the consideration is not so much that the trial court has exhausted its jurisdictional range-qua court, but rather that, there were mitigating factors which were ignored or were not comprehended by the trial court. In imposing a sentence the trial court must take all circumstances of the case into account where there are mitigating or aggravating factors……” Also in the case of HARUNA VRS. THE REPUBLIC (1980) G. L. R. 189-192 TAYLOR J. (as he then was) stated in the Report as follows; “When young men……have had their first brush with the law, it was essential in the interest of the reformative elements in criminal justice that they be not sentence to prison unless a prison sentence was a mandatory legal requirement. If a prison sentence was not mandatory, then as a general proposition, unless there were special circumstances calling for a custodial sentence the court must avoid incarcerating young offenders” In the modern times DOTSE J. S. C. has reiterated this same point in the case of KINGSLEY AMANKWA (alias spider) vrs. THE REPUBLIC quoted supra, he states as follows; “On the basis of our delivery so far we can safely conclude that there is an urgent need to reform our criminal justice system with particular reference to consideration of restorative justice and also suggest alternatives to custodial and possibly introduce “parole” for well-behaved prison inmates. We are aware that the office of Attorney –General and the Ministry of Justice: the law reform commission, the Judiciary, the Prison Service, and other law enforcement agencies have been thinking of the criminal justice system. It appears that those proposals have remained too long on the debating line without any concrete proposal being tabled for discussions and approval. Data received from Ghana Prison Service as at 9th July, 2021 indicates that there is total prison population of 13,200 out of which male population is 13,053 and female is 147. Total authorized capacity of country’s prison is 9,945. This means the prisons are over populated as at the above date by 3,255. This situation is definitely unacceptable and we would wish to add our voice once again to the many calls for reforms in our sentencing procedures and punishment in general the overcrowding rate of 32% has to be substantially improved to make our prisons a habitable place for inmates this is the time to implement non-custodial sentencing guidelines and procedures. The objectives for the call for reforms is to ensure that the goals of punishment by way of sentencing of offenders adjudged by the court is executed with the view to ensuring that it is done with the following aims, correction, rehabilitation we wish to reiterate our endorsement of the TOKYO Rules (Rules which were adopted by the U. N. General Assembly resolutions 45/100 of 14th December 1990 which states as follows; Criminal Justice Systems provide a wide range of non-custodial measures from pre-trial to post sentencing dispositions……….we also propose that restorative aspects of our sentencing policies be given serious attention to bring some medicum of reforms into this much abused system ……………restoration justice system is also more widely a way of dealing with crime generally in a rational problem solving way” From the above analysis of facts and law in this appeal, it is my considered opinion that the sentence of 6 months imprisonment was harsh taking into consideration of the facts of the case, and the fact that there were a lot of mitigating factors such as young age, pleaded guilty simpliciter without wasting court’s time and also being first time offender, I believe that if the court had taken this mitigating factors into consideration it would not have sentenced the appellant to six (6) months imprisonment rather strangely the court on its own manufactured aggravating circumstance from the case and by so doing gave the appellant harsh punishment by saying that he was not remorseful. I shall therefore allow the appeal I feel that the sentence of 6 ((six) months imposed on the appellant is quite excessive taking into consideration the mitigating factors and other circumstances surrounding the case, in substitution of 6 (six) months. I therefore imposed a sentence of 2 (two) months to take effect from the date of conviction. (SGD) JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) Cay…/