REPUBLIC VRS ALIDU (C16/026/2024) [2023] GHAHC 619 (10 November 2023)

1 | P a g e 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. CC16/026/2024 THE REPUBLIC RESPONDENT VRS. INNUSA ALIDU APPLELLANT =============================================================================== JUDGEMENT This is an appeal from sentence handed down by the Circuit Court, Duayaw Nkwanta on 25th January, 2018 and on 22nd February, 2018. The accused/Appellant together with one Issaka Mohammed were charged with the offences of conspiracy of stealing contrary to sections 23 (1) and 124 (1) of criminal offences Act, Act 29 of 1960, unlawful Entry contrary to section 152 of criminal offences Act, Act 29 of 1960 and stealing contrary to section 124 (1) of criminal offences Act, Act 29 of 1960 upon their arraignment, the accused/Appellant initially pleaded guilty simpliciter to the offences of conspiracy and unlawful entry but pleaded not guilty to the offence of stealing there upon the trial circuit court convicted him on the said offences and sentenced him as follows, on offence of conspiracy of stealing which is count 1 of the charge 2 years imprisonment and on the offence unlawful Entry, which is count 2, of the charge sentenced him to 7 years imprisonment with hard labour and the sentence is to run concurrently. 2 | P a g e However, on the 22nd February, 2018, when the case was called the Accused/Appellant changed his not guilty plea on the offence of stealing which is count 3 to guilty plea simpliciter there upon the trial circuit court convicted him on the said count 3, that is the offence of stealing and sentence him to 8 years imprisonment with hard labour without stating whether the sentence is to run concurrently or consecutively. Now being aggrieved by the said sentence the accused/Appellant has appealed to this court on the grounds that; (a) The sentence imposed on the appellant is harsh and excessive judging from the circumstances of the case. (b) The court erred when failed, refused neglected and / or ignored to state that the sentence passed on the Appellant on 25th January, 2018 and that passed on the same Appellant on 22nd February, 2018 were to run concurrently since all the offences flowed from same transaction. In order to appreciate grounds of the appeal, it will be logical to produce here below, the facts of the case and the sentence entered by the court below, the basis for which this appeal has been anchored it reads. “Complainant Isaac Boakye is a farmer residing at Boaso near Duayaw Nkwanta whereas A1 Innusa Alidu and A2 Issaka Mohammed are farmers and reside at Boaso respectively. On 1st November, 2017 complainant visited his snail farm situated at Boaso and detected that thief or thieves had stolen 1000 snails valued at Ghc10,000.00 investigation led to the arrest of A1 Innusa at his hide out at Boaso. During investigation A1 mentioned A2 Issaka Mohammed as his accomplice and A2 was arrested at his hide out at Boaso. In their respective cautioned statements they admitted the offences of conspiracy of stealing unlawful Entry and stealing. After careful deliberation they were duly charged with the offences as stated on the charge sheet and were put before this Honourable Court. 3 | P a g e On record the charges were read over and explained to the Accused/Appellant upon which he pleaded guilty simpliciter to count 1 and 2 and not guilty on count 3. Thereupon the Accused/Appellant was convicted on his own plea in respect of counts 1 and 2. However, before the court imposed its sentence, it called for plea of mitigation on the part of the Accused/Appellant. The Accused/Appellant then said I would not do it again I have no wife and I have one child”. Prosecution then told the court that the Accused is known and that he was convicted by the District Court Duayaw Nkwanta. However, after listening to plea of mitigation this is what the trial circuit court said in imposing sentence on the Accused/Appellant. “After listening to Accused plea for mitigation of sentence and the fact that Accused is known, Accused is sentence to 7 years imprisonment with hard labour on count 2 and 2 years imprisonment on count 1 sentence to run concurrently after this, the case was adjourned for hearing. However, the Accused at the adjourned date changed his not guilty plea on count 3 to guilty plea. There upon the trial circuit court convicted him on count 3 and imposed a sentence of 8 years simpliciter. Now learned counsel argued ground (b) of the appeal first, that is; “The court erred when it failed, refused, neglected and / or ignored to state that the sentence passed on the appellant on 25th February, 2018 were to run concurrently, since all the offences flowed from the same transaction”. In his written submission the learned counsel for the appellant argued that appeal is by way of re-hearing to support his point on this assertion he quoted the following authorities namely; Mfum farms & Feedmill Vrs. Madam Agnes Gyamfuaa (DECD) sunst by Mrs Lovia Opoku Bander Civil Appeal No J4/25/2017 dated 24th October, 2018 Tuakwa Vrs. Bossom (2001-2002) SC GLR 61 4 | P a g e Frimpong @Iboman Vrs. The Republic (2012) 1 SC GLR 297 and host of other cases. The learned counsel for the appellant submitted in his written argument that appeal as a way of re-hearing is that the appellate court is hereby required to analyze the entire record and take the charge sheet, facts and plea of the accused explanation of the accused, submission by the prosecution and counsel for the accused if any and the record of proceedings in its entirety to find out whether the conclusion arrived at by the court below can be supported. Counsel for the Appellant further submitted that, the appellant guilty on count 1 and count 2 of the charges against him and was convicted and sentence on count 1, conspiracy to commit crime to wit stealing 2 years and on count ‘2’ unlawful Entry; 7 years imprisonment with hard labour, sentence to run concurrently whereas on count 3, which is stealing he pleaded not guilty. However, on the next adjourned date, which is 22nd February, 2018, the Accused/Appellant changed his not guilty plea to guilty plea on count 3 that is stealing there upon the said trial Circuit Court convicted him on his own guilty plea and accordingly sentence him to 8 years with hard labour simpliciter accordingly the learned counsel for the Accused/Appellant submitted that the Honourable trial judge was silent on whether or not the sentence of 8 years with hard labour was to run either concurrently or consecutively with earlier sentence given on 25th January, 2018. According to the learned counsel for the appellant submitted in his written arguments that when a court is silent on whether or not sentences are to run either concurrently or consecutively, the sentence must be deemed as running concurrently. He supported this assertion by writing that the law provides rules for scenarios wherever one act constitutes several offences in several acts done in furtherance of single criminal purpose that is to say that where multiple criminal acts are done by a person, that person may be punished for the entirety of the acts or one of the acts as one offence provided the acts were in furtherance of the same design and the court is of the view that the actions constitute one continuous transaction. The several acts may only be taken into 5 | P a g e consideration in meting out punishment but there is no liability for actions to be punished separately. The learned counsel for the accused/Appellant supported this preposition of law with sections 302 (a) and 303 (1) of the criminal and other offences (procedure) Act, Act 30 of 1960 and the following cases; Forson Vrs. The Republic (1976) 1 GLR 138 COMMODORE, aka Kayaa Vrs. The Republic (1976) 2 GLR 471 and Adomako Vrs. The Republic (1984 - 88) 2 GLR 766. The learned counsel for the Accused/Appellant finally submitted on this ground of appeal that the trial circuit court’s inadvertence, failure, refusal and or neglect to indicate that the sentence for count 3 should run concurrently with the earlier sentences on counts 1 and 2 delivered on the 25th January, 2018 as required by law was in contravention of sections 302 (a) and 303 (1) of Act 30 of 1960 and has therefore occasioned a grave miscarriage of justice. And therefore submitted that this appellate court remedies the error of the trial circuit court judge by reversing the barefaced error of law. On the other ground of appeal that is, “The sentence imposed on the appellant is harsh and Excessive judging from the circumstance of the case”. In arguing this ground of appeal in his written submission the learned counsel for the Accused/Appellant submitted that although the trial circuit court in sentencing the appellant took into consideration some mitigating factors, but the record also shows that the prosecutor announced to the court that the appellant was known without providing any documentary evidence to support the claim. And according to the learned counsel for the Accused/Appellant that might have brought about harsh and excessive sentence of 7 and 8 years respectively in spite of the facts and circumstances of the case. 6 | P a g e The learned counsel for the Accused/Appellant further submitted that there were other mitigating factors which the trial circuit court ought to have taken into consideration before passing the sentence that it passed on the Accused/Appellant. He made mentioned of some mitigating factors such as not wasting court’s time by pleading guilty simpliciter that the appellant also showed remorse and also the age of the Accused/Appellant all these mitigating factors were not taken into consideration by the trial circuit court. The learned counsel for the Accused/Appellant finally concluded that although the accused/Appellant conduct was reprehensible and condemnably by right thinking members of the society, nevertheless, there is always opportunity for one to reset his mind and start all over again as life is a learning process. In that regard it is the humble prayer that your Lordship exercises his discretion in favour of the Accused/Appellant by mitigating the sentence imposed on him as same in our opinion is harsh. In reply, the learned Assistant State Attorney agreed with the learned lawyer for the Accused/Appellant in respect of ground (b) of the appeal quoted supra and submitted that since those counts arise in respect of common criminal design and/ or purpose and forming part of a grand criminal design, sentence upon conviction in respect of the various counts must run concurrently by virtue of the combined effect of section 302 (a) and 303 of the criminal and other offences (procedure) Act, Act 30 of 1960 and that from the facts of the case counts 1, 2, and 3 emanated from only one criminal design as a result the presiding circuit court judge should have applied section 302 of the criminal and other offences (procedure) Act, Act 30 of 1960 and ordered for the sentences to run concurrently. On the issue of the sentence being harsh and excessive the learned Assistant State Attorney submitted in her written submission that the offences committed by the Accused/Appellant would attract punishment from 1 day imprisonment to 25 years imprisonment and looking at the imprisonment of 2, 7, 8 years imprisonment respectively to the said offences charged were not 7 | P a g e harsh, and excessive to support this assertion she cited section 296 (2) of criminal offences (procedure) Act, act 30. Although the learned Assistant State Attorney in her written submission stated that the passing of the sentence is at the discretion of the trial court, nevertheless the trial court, in passing sentence must be guided by some mitigating and aggravating factors, whereas mitigating factors would attract lesser punishment aggravating factors would attract harsher punishment. She also finally submitted in her written submission that applying the above factors to the case, it is apparent that there are several aggravating factors which prompted the judge to give the sentences he gave she also stated that Accused/Appellant actions could have crippled the legitimate business of the complainant forever and further deprive both himself and his family of their livelihood. Appellant complete and utter disregard for the well-being of other citizens must be strongly deprecated. And that it is worthy to note that none of the snails were retrieved, additionally according to prosecution the appellant was known and had once been convicted by Duayaw Nkwanta District Court. The learned Assistant State Attorney finally submitted that save that this appellate court should order for the sentences to run concurrently. The sentence of the trial circuit court judge should not be interfered with. The sentence should be made to stand to serve as deterrent to the appellant and likeminded individuals in the society. I propose to consider and determine all the two grounds of appeal globally I wish to say at the onset that I find merit in argument in support of ground (b) of the appeal that is; “The court erred when it failed, refused, neglected and/or ignored to state that the sentence passed on the Appellant on 25th February, 2018 were to run concurrently since all the offences flowed from the same transaction”. 8 | P a g e One of the clearly settled principles of law which admits of no controversy is that an appeal is by way of re-hearing what does this mean? In essence what this means is that, as an appellate court, whenever an appeal comes up for hearing the appellate court must consider its task as re-hearing of the case. 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 trial or prosecution of criminal cases - See the case of Kingsley Amankwa @ spider Vrs. The Republic (Criminal Appeal no. j3/04/2011-2021) unreported SC delivered on 21st July, 2021. Now flowing from this principle of law and taking into consideration the ground (b) of the appeal that is; “The court erred when it failed, refused, neglected and/or ignored to state that the sentences passed on the Appellant on 25th February, 2018 were to run concurrently, since all the offences flowed from same transaction”. There is no gain saying that the Accused/Appellant was charged with the following offences; namely conspiracy of stealing, unlawful Entry and stealing as count 1, 2, and 3 respectively on the charged sheet on 25th January, 2018, the Accused/Appellant pleaded guilty simpliciter on counts 1 and 2 that is the offence of conspiracy of stealing, and unlawful Entry contrary to sections 23, 124 (1) and 152 of criminal offences Act, Act 29 of 1960 on the said 25th January, 2018 and there upon the Accused/Appellant was convicted on his own plea of guilty on count 1 and 2 by the said trial circuit court and sentenced as follows; Count 1, 2 years IHL and count 2, 7 years IHL and sentence to run concurrently. Later the trial court adjourned the case to 22nd February, 2018 to trial the Accused/Appellant on count 3 that is the offence of stealing which he had pleaded not guilty. However, on the said adjourned date of 22nd February, 2018, the Accused/Appellant changed his not guilty plea on count 3 to guilty plea simpliciter. Thereupon the trial circuit court convicted him on count 3 upon his own guilty plea and sentenced him to 8 years IHL simpliciter. 9 | P a g e Admittedly, the learned trial circuit court judge in imposing sentence on the accused/appellant on 22nd February, 2018 stated as follows; “Plea retaken on count 3- guilty. By Court: Accused is convicted on his own plea of guilty on count 3. Any plea for mitigation of sentence. I do not have wife, I have one child who is 1and half years old; BY COURT: “After listening to accused plea for mitigation of sentence accused is sentenced to eight years imprisonment IHL on count 3’’. It can be observed from the record there is no mentioned about whether the sentence of 8 years imprisonment with hard labour is concurrently or consecutive. However, it has generally been accepted that if a person is convicted in respect of several counts emanating from one grand design or criminal conduct, sentence in respect of those counts must run concurrently because the criminal act arose out of one transaction. In fact section 302 of Act 29 of 1960 (Criminal offences Act) states as follows; “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, from one continues transaction, that person may be punished for the whole of the Acts as one criminal offence, and all the facts may be taken into consideration in awarding punishment, but that person is not liable to separate punishments as for several criminal offences….” 10 | P a g e This section 302 (a) of the criminal offences Act, Act 2 of 1960 has been given succinct and sound judicial interpretation by our courts. In the case of Forson Vrs. The Republic (1976) 1 GLR 138 the court held as follows; “Since the appellant was tried separately in respect of separate offences arising from one continues transaction, he was by Act 30, section 302 (a) liable for punishment for the whole of such acts as one crime but shall not be liable to separate punishment as for several crimes”. Also in the case of R. Vrs. Kamara & Ors. (1942) 8 WACA 95; “The seven appellants were convicted on 3 counts each the judge ordered the sentence to be served consecutively here the court held that all three counts related to one act or set of acts and the sentences should run concurrently”. In the case of TETTEH ASAMADAY @ OSAGYEFO & ANOR. VRS. C. O. P. (1963) 2 GLR 400. In this case the appellants were convicted of four counts each. Two each of the 4 counts arose out of one transaction. The trial judge ordered their sentence to run consecutively. However, the appellate court held that where a person does several acts each of which is an offence and the several act were done in execution of one grand design, the prosecution may elect either; (i) To charge the person with only one offence in which case on conviction the court is entitled to take into consideration the rest of the acts in passing sentence or (ii) To charge the person with several acts in such case, if the person is convicted the sentence for each act must run concurrently with other emanating from the one grand design. Finally in the case of Commodore @ Kayaa Vs. The Republic (1976) 2 GLR 471. The court held that; 11 | P a g e “Since the alleged acts supporting the two charges were acts done in the Execution of the same criminal designs or purpose and formed one continuous transaction the combined effect of sections 302 (a) and 303 of Act 30 required the sentence to run concurrently” In fact section 303 (1) of Act 30 states as follows; “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 consecutively and if sentences of fines shall not operate in a manner that imposes fines cumulatively”. Hence it was held in the case of Adomako Vrs. The Republic (1984-86) 2 GLR 766; “That the cumulative effect of sections 302 & 303 of Act 30 was that where the acts formed one continuous transaction, then it was mandatory sentences should run concurrently and not consecutively. Since the acts of which he was accused formed part of one transaction. The sentences had to run concurrently”. In the instance appeal the charge of stealing which is count 3 flows from the same transaction together with count ‘1’ and ‘2’ that is the counts or offences came about as a result of the snails stealing enterprise embarked upon by the Accused/Appellant. Therefore any punishment meted out on the offender is supposed to apply to entirety of all the transactions as they were flowing from one sequential set of events. Hence the sentence imposed on the Accused/Appellant on count 3, that is sentence of 8 years with hard labour without indicating that it is to be run concurrently with the earlier sentence pronounced on count ‘1’ and ‘2’ on 25th January, 2018 was wrong in law, since it contravenes section 302 (1) and 303 (1) of Act 30 and amounted to blantant disregard to the law. Now on ground (a) of the appeal as canvass by the learned counsel for the appellant that is; 12 | P a g e “The sentence imposed on the appellant is Harsh and Excessive judging from the circumstances of the case”. Although it must be noted that as a principle, sentencing is a matter of discretion for the trial court and an appellate court will only interfere when in its opinion. The sentence is manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle. Factors that court considers in determining the length of sentence include; (1) Any period of time spent in lawful custody in respect of that offence before completion of his trial (Article 14 (4) of the 1992 constitution. (2) The intrinsic seriousness of the offence. (3) The degree of revulsion felt by law abiding citizens of the society for the particular crime. (4) The premeditation with which the crime was committed (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 circumstance such as the extreme youth good character, remorse and reparation. (8) Aggravating circumstances such as the violence or manner in which the crime was committed – see the case of Owusu Banahene Vrs. The Republic (2019) DLSC 6578 page 2 per Adinyira J. S. C. Therefore in essence these are the factors that a trial court should consider before passing any sentence. In the case of Haruna Vrs. The Republic (1980) GLR 189-192. The court held at page 191 of the Report as follows; “In awarding sentence particularly when the court sets out to award a deterrence sentence all circumstances must be considered if there were circumstances tending to mitigate the 13 | P a g e application of the deterrent principle then reasons must be given why those circumstances must be ignored if deterrent sentence was imposed’’. Also in the case of Abu & Ors Vrs. The Republic (1980) GLR 294-302, the court held that; “In imposing sentence it seems to me that the court has a duty to consider all aggravating and mitigating circumstances. In our instance case although the Accused/Appellant pray for mitigating of sentence, the trial court did not take into considerations before passing sentence on the accused/Appellant, rather the trial court in passing the sentence on Accused/Appellant took into consideration aggravating factor of the Accused/Appellant being known hence the harsh sentence. Nevertheless the law is that previous conviction must strictly be proved according to law unless the Accused himself admits. Hence allegation of previous conviction must be proved in accordance with sections 117and 135 of Act 30 of 1960 (That is criminal offences (procedure) Act. In fact section 117(1) of Act 30 states as follows; “In an enquiring, trial or other proceedings under this Act, a previous conviction or acquittal may be proved in addition to any other mode provided by any other enactment. (a) By an extract certified and personally signed by the officer having the custody of the records the court in which the conviction or acquittal was recorded to be a copy of the sentence or order of acquittal or (b) By a certificate signed by the officer in charge of the prison in which punishment was inflicted or by the production of a warrant of commitment under which the punishment was suffered together with, in each case evidence as to the identity of the accused with the person so convicted or acquitted 14 | P a g e (2) A certificate in the form prescribed by the minister responsible for police signed personally by an officer appointed by the minister in that behalf who has compared the fingerprints of the Accused person with the finger prints of a person previously convicted is prima facie evidence of the facts set forth in the certificate where it is produced by person who took the finger prints of the Accused. From the above it was therefore legally wrong for the trial court to have accepted the mere fact that the accused/Appellant was known to the law in other words, he has had a previous conviction, without asking the prosecution to prove it in accordance with section 117 of Act 30 of 1980 it was also clear that in order to give an Accused/Appellant deterrent sentence, the court deliberately ignored certain mitigating factors which inure to the benefits of the Accused/Appellant such mitigating factors like plea of guilty show of genuine remorse saving the state expenses of trying him and also the adverse effect the sentence would have on the young child of the accused/Appellant. I am therefore of the opinion that if the trial circuit court had taken into consideration these mitigating factors it would not have passed the sentence that it passed on the Accused/Appellant. Finally the trial court in Ghana must be guided by the statement made by the Canadian Supreme Court in the case of R. Vrs. Wust (2000) 1 SCR 455 that; “Even if it can be argued that harsh, unfit sentences may prove to be a powerful deterrent and therefore still serve a valid purpose, it seems to me that sentences that are unjustly severe are more likely to inspire contempt and resentment than foster compliance with the law. It is well-established principle of criminal justice system that judges must strive to impose a sentence tailored to the individual case” 15 | P a g e In fine I would therefore agree with the learned counsel for the Accused/Appellant that the sentence imposed on the appellant is harsh and excessive judging from the circumstances of the case. I would therefore allow the appeal and in substitution therefor, I would impose sentence as follows; Count 1 - 2 years imprisonment with hard labour Count 2 – 5 years imprisonment with hard labour and on Count 3 – 7 years imprisonment with hard labour. Sentence to run concurrently and to take effect from the date of conviction. (SGD) …………………………………. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) Cay/… 16 | P a g e