SAJJAH VRS. REPUBLIC (CR/0601/2022) [2023] GHAHC 628 (21 November 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 21ST DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0601/2022 MUTTAH SAJJAH CONVICT/APPELLANT VRS THE REPUBLIC RESPONDENT/RESPONDENT JUDGMENT The Appellant herein was arraigned before the Accra Circuit Court on the 25th of October 2013. On the charge sheet, the prosecution charged the appellant with a count of conspiracy to commit crime to wit robbery contrary to Section 23 (1) and 149 of the Criminal Offences Act 1960 Act 29 and two counts of robbery contrary to Section 149 of Act 30/60. According to the prosecution, the appellant herein and one Abdul Manuf Yussif who was deceased at the time the case was presented in court conspired to commit the offence of robbery and actually committed the offence of robbery. The Appellant pleaded not guilty to the three counts and after a full trial, the trial court on the 10th of March 2014 found the appellant herein guilty on all three counts, convicted him on same and sentenced the appellant to twenty years IHL on the offence of conspiracy to rob and thirty years IHL on both counts of robbery. All the sentences were to run concurrently. It is against this sentence that the appellant filed the instant appeal on the 7th of April 2022. The grounds of appeal in the instant appeal are as follows: 1. That the appellant is a first time offender 2. That the convict is remorseful 3. That the convict undertakes not to repeat the act or any similar crime. FACTS OF THE CASE On 21" July, 2012, at about 3.30pm, the complainants Clifford Attaglo who is a policeman stationed at Kasoa and Sharon Davidson a senior admin assistant at Central University, both former students of Swedru secondary school attended an old student association meeting along with other members of the association at a pub near Hansonic junction in Dansoman. The first suspect Muttah Sajarr aged 24 years, a trader by profession and second suspect Abdul Manuf Yussif aged 25 years a painter by profession both residents of Awoshie, stormed into the venue on an unregistered Honda motor bike wearing helmets and one of them armed with a pistol entered the pub and threatened to shoot anyone who failed to surrender their belongings. They robbed Clifford Attaglo of his Kodak digital camera valued at GH¢ 500.00 and a ladies handbag belonging to Sharon Davidson containing GH¢ 100.00 her ATM card, her makeup bag and other items. Using a similar mode of operation, the suspects had earlier robbed one Victor Nda of his Acer laptop and blackberry mobile phone. In their attempt to escape following the robbery in Dansoman, the suspects were hit by an oncoming vehicle. As a result they fell to the ground and sustained various degrees of injuries; the second suspect fractured his right leg. The suspects were arrested and taken to Police Hospital for treatment and later discharged. Nonetheless, on 28 July, 2012, the health of the second suspect deteriorated and he was taken to the Police Hospital for treatment but died on arrival. The handbag belonging to Sharon Davidson was retrieved along with some of her items as well as the unregistered Honda motor bike and the gun the suspects used in carrying out the robberies. Based on these facts the accused persons have been charged with the offences and arraigned before this honourable court for trial. SUBMISSIONS OF COUNSEL FOR THE APPELLANT Counsel for the appellant submitted that the appellant is a first time offender, has been remorseful, there is no record from the prison authorities that the appellant has misbehaved since lawful incarceration and all the items taken from the victims during the robbery were retrieved by the Police from the appellant, as such this court is to consider all that in mitigating the sentence of the appellant. He added that the early release of the appellant from prison custody will go a long way to ease the congestion in the prison. He also urged the court to consider the prime age of the appellant when he was arrested and also the fact that he has spent about ten years in lawful custody and prayed the court to reduce the sentence of the appellant to fifteen years with regards to robbery with an offensive weapon under the law to enable the appellant to begin a purposeful life since his imprisonment has really thought him a lesson he would not forget. SUBMISSIONS OF THE RESPONDENT The learned State Attorney on her part stated the case law on factors mitigating and aggravating sentences and submitted that the trial judge considered that the accused person was a first time offender but did not consider that the accused person was twenty four years old when he was sentenced and also the fact that even though he pointed the gun to scare the victims, he did not harm or kill them neither was he violent. She submitted that if the learned trial Judge had averted his mind to these mitigating factors, he would not have given such a severe sentence. She submitted further that the sentence of thirty years is manifestly excessive given that the minimum sentence for robbery is fifteen years. She argued that from the record of proceedings the appellant and his accomplice stole a purse which contained GHC100, a Kodak camera worth GHC500, a laptop, a mobile phone and other personal belongings which were retrieved and restored to the complainants, the sentence ought to be mitigated. She finally submitted that the sentence of thirty years IHL imposed on the appellant be reduced to twenty years as same is excessive and harsh. GROUNDS OF APPEAL From the three grounds of appeal filed, the appellant is clearly seeking this court to mitigate the sentence imposed on him. Even though he prays the court to consider his reformed character, the fact that he is remorseful and was a first time offender, the law is clear that a ground of appeal which calls on the court to consider the reformed character of the appellant, and also to consider the lessons the appellant has learnt during his period of incarceration is nothing more than a plea to the court and cannot be considered as a ground 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. 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.” Robbery 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 provides thus: “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.” 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 prescribes for a maximum sentence of life imprisonment for the offence of robbery. By Section 149 of Act 29 the offence of robbery is a first degree felony. It states thus. “A person commits robbery commits a first degree felony”. 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 and 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. 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”. Therefore the trial judge had the discretion to impose a term of imprisonment ranging from 15 years to a term of life imprisonment on both counts 1, 2 and three. From the record of appeal, the trial judge decided to impose a deterrent sentence so as to indicate the disapproval of the society for that particular crime. He added further that once the court decides to impose a deterrent sentence the good record of the accused became irrelevant. In sentencing the appellant, the trial judge added that “I would describe the accused person as a brave person for having the courage to rob in broad day light. I think it is because the law takes a serious view of robbery act, it allows for a minimum sentence but does not fix a maximum sentence.” From the record of appeal therefore the trial judge in imposing the sentence of 20 years IHL on count one and thirty years IHL on count two and three was clearly within the confines of the law. Thus the fact that he did not take other factors into consideration does not invalidate the sentence as it is trite that “ where the court finds an offence to be very grave it must not only impose a punitive sentence but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence. Once the court decides to impose a deterrent sentence the good record of the accused is irrelevant” Adu Boahen vrs the Republic [1972] GLR 70 per Azu Crabbe JSC With this court having found that the sentence imposed on the appellant was within the law, then should same be disturbed? 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 the 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, the evidence on record particularly the fact that the items robbed were retrieved, the fact that the appellant was not known to the law and he was also in his youthful years. The appellant was 24 years old when he was arrested. It is trite that 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 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. Thus even though the court had indicated that it was imposing a deterrent sentence, it is the mind of this court that the youthfulness of the appellant at the time of arrest and even sentencing, the fact that it was his first brush with the law, and the fact that the items stolen were retrieved were factors which the court should have considered in imposing sentence. That said, I have also considered the way and manner the offence was committed. It was clearly not a spur of the moment attack. The appellant herein and his accomplice planned with the locally manufactured gun to commit I therefore set aside the sentence of thirty years (30) years IHL on both count 2 and 3 the offence of robbery and substitute a sentence of twenty (20) years IHL. The sentence of twenty (20) years IHL on count one that is the offence of conspiracy to commit the offence of robbery is hereby affirmed. The sentences will run concurrently. The sentence is to take effect from the 10th March 2014 when the Appellant was sentenced. MARY M. E YANZUH J. JUSTICE OF THE HIGH COURT PARTIES: APPELLANT PRESENT COUNSEL: SAMUEL K. OFORI FOR THE APPELLANT PRESENT JESSIE TAGOE-KORLI FOR THE REPUBLIC/RESPONDENT PRESENT 10