ABU MOHAMMED VRS THE REPUBLIC (J3/03/2023) [2024] GHASC 14 (17 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA- A.D. 2024 CORAM: BAFFOE-BONNIE JSC (PRESIDING) ACKAH-YENSU (MS.) JSC KOOMSON JSC KWOFIE JSC DARKO ASARE JSC CRIMINAL APPEAL NO. J3/03/2023 17TH APRIL, 2024 ABU MOHAMMED …………… APPELLANT VRS THE REPUBLIC …………… RESPONDENT JUDGMENT KOOMSON JSC: My Lords, The core issue that we have been called upon to adjudicate is as to whether or not a person who is over 18 years old but under 21 years, in this instance a 20-year-old, can be sentenced to a term of imprisonment of more than 3 years in the face of Section 46 (1) (d) of the Juvenile Justice Act, 2003, Act 653. Page 1 of 7 FACTS OF THE CASE The facts leading up to the instant appeal are that on the 25th March, 2011, the Appellant together with four others attacked a Total Filing Station on the Bawjiase Road in Kasoa. They took away mobile phones, an amount of GHC 4,000 and a lady’s handbag containing her valuables. In the process of the robbery, the Appellant fired a gunshot at the 1st and 2nd Prosecution witnesses injuring them on the left thigh and left knee respectively. The Appellant herein was arrested by a mob at the scene while trying to scale the fence wall of the Filling station whilst 2nd accused person, who was discharged, was arrested at a later date. On 29th November, 2012, the Appellant together with the 2nd accused person were arraigned before the trial High Court, Accra on two counts of conspiracy to commit robbery and robbery pursuant to sections 23(1) and 149 of the Criminal Offences Act, 1960, Act 29 as amended by the Criminal Offences (Amendment) Act 2003, Act 646. The Appellant was convicted by the Court of first instance and sentenced to 25 years imprisonment (IHL) on each count, which was to run concurrently. Appellant dissatisfied with the judgment appealed to the Court of Appeal. COURT OF APPEAL DECISION The Court of Appeal in dismissing the Appellant’s appeal considered the period of 3 years, 4 months that the Appellant had been in lawful custody before his conviction and sentence. The Appellant’s sentence was reduced to 21 years, Eight months imprisonment IHL. The Court of Appeal held as follows: “The Juvenile Justice Act, Act 653 deals with juveniles who commit crime. The 1992 Constitution of Ghana pegs the age of majority at 18years. Similarly, Section 19 (14) of Act 653 provides that Page 2 of 7 “Where it appears to the Court that the person brought before it has attained the age of eighteen years, that person shall for the purpose of this Act be deemed not to be a juvenile and shall be subject to the procedure Act’ (our emphasis). From the two provisions i.e. the Constitution and Act 653, quoted supra, when a person is eighteen years and above or below 21 years and commits an offence, he is to be tried in the regular court and not the juvenile Court. Again, Act 653 defines “serious offence” to include offences such as robbery, rape, defilement and murder. Therefore, if a person who is twenty years old commits an offence of robbery, is tried in the regular court, then the sentence of such an offence cannot be three years as being suggested by Counsel for the Appellant. The reason being that, the minimum sentence for the offence of robbery is fifteen years. Counsel for the Appellant is equating a juvenile offender with a young offender which is wrong. A person has to be convicted first when he is above eighteen years, before the issue as to whether he /she being a young offender would arise. Consequently, the two cannot be used inter changeably. The Appellant at the time of the commission of the offence was twenty years. He was therefore not a juvenile. Considering the nature of the offence he committed, i.e. robbery, the aggravated nature and manner with (sic) which the offence is committed does suggest he is a professional in the act, he cannot be sentenced to three years’ imprisonment” Dissatisfied with the Court of Appeal’s decision, the Appellant has invoked the appellate jurisdiction of this Court on the following grounds: GROUNDS OF APPEAL i. ii. The judgment cannot be supported having regard to the evidence on record. That the sentence was harsh and excessive. Page 3 of 7 Counsel in his submission to the Court omitted or failed to argue the ground (i). The said ground is accordingly deemed as abandoned. We are therefore left with the only ground being that the sentence is harsh and excessive. From the record of appeal, the Appellant’s age at the time of committing the offence was 20 years. The Court of Appeal in reducing the sentence imposed by the Trial High Court gave due consideration to the fact that the Appellant was a young man. WHO IS A YOUNG PERSON AND A YOUNG OFFENDER? Section 60 of Act 653, which is the Interpretation Section of the Act defines a young person to mean a person who is eighteen (18) years or above eighteen years but under Twenty –One (21) years. A young offender is defined in that same section to mean “a person who has been convicted of an offence for which the Court has power to impose a sentence of imprisonment for one month or upwards with the option of a fine”: See the case of Nelson Makafui Fiakpui v. The Republic (Unreported) Criminal Appeal No; H2/01/2022 delivered on 11th March, 2022 In the case of Kamil v The Republic [2001] SCGLR 300 this Court per Ansah JSC, stated that, “Where an Appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country”. It is observed that by section 149 of the Criminal Offences Act of (1960) Act 29 as amended by Act 646 of 2003, robbery is a first degree felony and a person upon Page 4 of 7 conviction shall be liable to be imprisoned for not less than ten (10) years, and where an offensive weapon or offensive missile is used, the offender is liable to a term of imprisonment of not less than 15 years. See the case of Frimpong alias Iboman vs. The Republic [2012] 1 SCGLR 297. From the Record of Appeal, it is established that the Appellant on the day of the robbery used a pistol to shoot two persons thereby causing various degree of injury to them before robbing them of their property. As stated earlier in this judgment, a person of 18 years but less than 21 years is known as a young person. A young person become a young offender when he or she is convicted of an offence, for which the Court has been given power by statute to impose a sentence of one month or upwards with the option of a fine. See Section 60 of Act 653. Therefore, where a young person commits an offence for which the option of a fine is not provided, that young person shall not become a young offender. In the instant appeal, though the Appellant was a young person at the time he committed the offence, the offence he was convicted of, that is, robbery, attracted a sentence of not less than 15 years because he used a weapon to commit the offence. The offence for which the Appellant was convicted of, does not attract the imposition of a fine. The Appellant does not therefore qualify to be considered as a young offender and we so hold. CONCLUSION We have given consideration to all the evidence on record and we are of the considered opinion that the Court of Appeal did an extensive analysis and gave consideration to all Page 5 of 7 the relevant factors before coming to the conclusion that the Appellant was not a young offender. We find no reason to disturb or set aside the decision of the Court of Appeal. Furthermore, having given regard to the circumstances of the conduct of the Appellant on the day he committed the offence and the grievous nature of the offence, coupled with the kind of weapon the Appellant used in committing the robbery, we do not hesitate to conclude that the sentence imposed by the Court of Appeal is not excessive. Accordingly, the Appeal is dismissed in its entirety. The Court of Appeal’s decision dated 19th April, 2018 is hereby affirmed. (SGD) G. K. KOOMSON (JUSTICE OF THE SUPREME COURT) (SGD) P. BAFFOE-BONNIE (JUSTICE OF THE SUPREME COURT) (SGD) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) H. KWOFIE (JUSTICE OF THE SUPREME COURT) Page 6 of 7 (SGD) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) COUNSEL MARTIN L. KPEBU ESQ. FOR THE APPELLANT. RICHARD GYAMBIBY (PRINCIPAL STATE ATTORNEY) FOR THE RESPONDENT. Page 7 of 7