REPUBLIC VRS. NAJA (BIND/9/2015) [2024] GHAHC 265 (21 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON TUESDAY, 21ST DAY OF MAY, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT CASE NO.: BIND/9/2015 THE REPUBLIC VRS. ALBERT NAJA ========================================================================== JUDGMENT ========================================================================== The Accused person herein was charged with one count of the offence of Attempted Murder contrary to Section 48 and one count of Robbery contrary to Section 149 all of the Criminal Offences Act, 1960 (Act 29). The particulars of offence on count one was: ALBERT NAJA, alias BAFFOE YAW alias OTOO HUMPREY TEETEH OWUSU, TRADER, on or about the 14th February 2013, on the Ring Road in Accra, near the Barclays Bank, did attempt to cause the death of AKUA SERWAA by Unlawful Harm. On the second count, the particulars were: Page 1 of 10 ALBERT NAJA, alias BAFFOE YAW alias OTOO HUMPREY TEETEH OWUSU, TRADER, on or the about the 14th February 2013, on the Ring Road in Accra, near the Barclays Bank, did rob AKUA SERWAA of the following items: • One Toyota RAV4 vehicle • One ladies handbag containing the vehicle documents • $20,000 (Twenty Thousand dollars) • Unspecified amount of Ghana cedis in cash of GHC50.00 denominations • One (1) Galaxy mobile phone • One (1) Nokia mobile phone He was committed to stand trial at the High Court on the 4th June 2015. THE FACTS OF THE CASE As per the summary of the witnesses’ evidence filed was that: The Accused person, Albert Naja was a resident of Kumasi who later moved to Accra sometime in September 2012 in search of a job and was offered a job as driver by a professor and lecturer of the University of Ghana. The professor later accommodated the Accused at his residence at Haatso in Accra. On or about the 23rd January 2013, the victim, Akua Serwaa aka Imelda Dodoo (now deceased) sent her driver to a washing bay with her vehicle, a Toyota RAV4. This vehicle had a “FOR SALE” inscription on it with the victim’s name and number. The Accused now convict who happened to be at the washing bay, noticed the sign for sale and took the details of the victim. Between that day and the 11th February2013, he communicated with the victim as to the purchase of the vehicle, the mode of payment and documents covering the vehicle. Page 2 of 10 On the 11th February 2013, the Accused asked the victim to meet him at the said washing bay with the vehicle for him to make payment. The victim asked her driver to meet the Accused with the vehicle but the Accused failed to produce any money but yet managed to convince the driver to deliver the vehicle to him and he drove it away. Efforts to retrieve the vehicle or get him to effect payment proved difficult. Then on the 14th February about 3 days later, the convict got in touch with the victim and asked her to meet him at the Fiesta Royale Hotel in Accra for the money. The victim went there with her driver and waited for the convict who arrived in a Toyota Land Cruiser. He asked her to join him in his vehicle to the bank to effect the payment of the vehicle. The victim did join him in his Land Cruiser and sat on the back seat. On the way, the convict requested to see the documents covering the RAV4. He was shown the documents and the victim put them back into her handbag which was by her at the back seat. When they reached a part of the Ring Road in Accra, close to a Barclays Bank, the convict pulled out a locally manufactured pistol and shot the victim on her left rib, under her left breast. The victim managed to wrestle the gun from the convict and demanded the convict to stop the vehicle. He however, sped off and for fear of her life, the victim broke a mirror of the Land Cruiser and jumped out of the vehicle sustaining serious injuries. The convict then took off with the victim’s handbag containing the RAV4 vehicle documents, about $20,000, other sums of money, mobile phones and her other items. The victim was taken to the Police Hospital by Police officers who came to the scene and she was admitted for surgery. The locally manufactured gun was retrieved and a ballistic examination was conducted on it and a report lodged with the Police. Investigations led to the retrieval of the Toyota RAV4 from one woman in Kumasi who told the Police that she bought the RAV4 from a garage in Kumasi. The garage owner upon investigations also admitted selling the vehicle to the woman and told Page 3 of 10 the Police that the convict brought it in exchange for two Toyota Corolla vehicles and some extra amount. He led the Police to arrest the convict Upon his arrest, the convict did admit taking the victim in the Land Cruiser and also admitted having negotiated to buy her RAV4. He however denied shooting her and named another person as the one who shot the victim from outside of the vehicle. It also became evident in the course of investigations that the Land Cruiser he brought to pick the victim belonged to the professor. The convict had convinced the professor that one of the tyres had deflated and needed air, and he took the vehicle away. It was later observed and confirmed by the professor that one of the windows of his vehicle was broken. The convict brought the vehicle back to the house leaving it in the custody of a house help of the Professor and bolted away. He was later charged for the above stated offences. It is important to state that the victim died later in the course of the trial. The cause of death I have not noticed from a reading of this docket. THE ANTECEDENT OF THE CASE The incident happened on the 14th February 2013 and the Bill of Indictment was filed on the 12th March 2015 and he was committed to stand trial at the High Court on the 4th of May 2015. He was first arraigned before the High Court on the 17th January 2017 then presided over by His Lordship Justice L.L Mensah and was granted bail, after having been in custody since 2013 when the incident occurred. He was put before another judge on 19th June 2019 and a bench warrant was issued for his arrest by the said judge, His lordship C.E Ekow Baiden having failed to appear in Court. On the 14th July 2022, an application for forfeiture was filed by the Prosecution before Her Ladyship Justice Elfreda Dankyi with the bench warrant still pending. Page 4 of 10 On the 18th of May 2023, through his sureties, he appeared in Court again before my good self. His bail was rescinded and his plea retaken on the 14th June 2023 with the jury empaneled. Disclosures were filed and CMC conducted. With the trial to begin, counsel for the Accused informed the Court on the 19th February 2024 of discussions with the Prosecution for plea bargaining. With the acceptance of the Prosecution, on the 14th May 2024, the convict pleaded guilty to Causing Unlawful Harm on count one (1) and not guilty to Attempted Murder. He also pleaded guilty to Stealing on count two (2) and not guilty to Robbery. This procedure of Plea Bargaining was under Section 239 (2) of the Criminal and Other Offences Act, 1960 (Act 30) which states as follows: “When an Accused is arraigned on an indictment for an offence and can lawfully be convicted on the indictment of any other offence not charged in the indictment, the Accused may plead “not guilty” of the offence charged in the indictment, but “guilty” of the other offence.” He was accordingly acquitted on the offences of Attempted Murder and Robbery and convicted for the offences of Causing Unlawful Harm and Stealing respectively. The Court upon reliance on Section 293 of Act 30 invited the counsel for the convict to put in words of mitigation. In mitigation, counsel acknowledged the generosity of the Prosecution in accepting the offer to Plea Bargain. He also acknowledged the seriousness of the acts of the convict and rendered an apology on behalf of the Accused to the family of the deceased/victim. Counsel pleaded for a sentence that will be short enough to correct the convict and not serve to affect his youthful days. The Court was also informed that the convict had shown remorse and had dependents whose future depended on him and needed him to be out of prison in good time. Finally, the Court was invited to consider the considerable number of years the convict had spent in lawful custody before his conviction. Page 5 of 10 Counsel for the Republic in her response drew the attention of the Court to the aggravating factors that the Court had to consider in sentencing. The Court was reminded of the pre meditation which the convict acted in planning to use a gun and actually shooting at the victim in order to take away her car and other belongings. It was also prevailed upon the Court to consider that properties of the victim stolen by the convict were not retrieved including the monies, though the hand bag of the victim was later found in the room of the convict. I have heard and considered counsel for the convict on mitigation as well as the Prosecution. I greatly appreciate their submissions. On Plea Bargaining under Section 239 of Act 30, I refer to the case of ALHAJI YUSIF ALHASSAN ALIAS OBOLO VS. THE REPUBLIC (REPORTED IN DENNIS LAW AS 2016 DLCA 4525) DATED 29TH FEBRUARY 2016. The Court of Appeal in explaining the practice of Plea Bargaining under Section 239 (2) of Act 30 stated inter alia: “…. the procedure as described above seems simple but in practice it can be confusing. It can be procedurally confusing because it is not the usual case of an Accused changing his plea from not guilty to guilty on the same charge or indictment. In the normal change of pleas, the same charge or indictment is read over and explained to the Accused person who pleads to it. But in a plea bargain, the offer to plead guilty to a lesser offence not charged in the indictment is made by the Accused or his counsel and if the offer is accepted by the prosecution, the bargain is deemed struck and enforced by the Court. A new charge or indictment is not prepared for the Accused to plead to.” The Court further stated that: “from the definition or explanation of the concept, resort to the practice by the Court is not meant to mete out sentences not commensurate with the offense the Accused is charged with or indicted for, but to ensure speedy trial of Accused whose liberty is Page 6 of 10 probably being unduly violated as result of incarceration pending trial. Therefore before the Accused or his counsel makes an application (offer) and before the Prosecution accepts or rejects the offer, either of them would have assessed their chances of acquittal or securing a conviction depending on the evidence available to them, the load of work on the trial Court, the availability of both the defense counsel and the Prosecutor any time the trial is to proceed and the nature of the offence, amongst others.’’ It therefore goes without saying that even before the Amendment to Act 30 with the new addition of Plea Bargaining laws as under Act 1079, the Courts had already embraced this concept and had seen the benefits of plea bargaining, which positives may go for all parties involved including the Courts. The principles and criteria for sentencing have been enumerated and held in several cases such as ADU BOAHEN VS. THE REPUBLIC (1972) 1 GLR 70 and KAMIL VS. THE REPUBLIC (2011) SCGLR 300 as follows: 1. The seriousness of the offence 2. The premeditation with which the criminal plan was executed 3. The prevalence of the crime within the locality in particular and the country in general 4. The degree of revulsion felt by law abiding citizens of the society I have taken note of these principles and pursuant to Article 14 (6) of the 1992 Constitution, I have considered that Accused/Convict and the time he has spent in lawful custody. All he has served a total of about five (5) years in custody. First four (4) years from the time of his arrest in 2013 to 2017 when he was granted bail and later when his bail was rescinded on 7th May 2023 till date, being another one (1) year. The mitigating factors in my view are that he is a first-time offender, and has spent a considerable number of years in custody. Again having considered the option of plea bargaining, he has reduced the burden on the Court, and on the Prosecution to prove the case to the end of it. However enough years have already been spent on this case Page 7 of 10 before he took this decision especially as he wasted many years absconding leading to more delay the trial. It is also important to state that the Toyota RAV4 vehicle was retrieved by the Police. The fact that he is not known to the law, has not escaped the Court in its consideration. On the aggravating factors, from a reading of the entire docket, there is no indication that the convict have any dependents (in the true sense of this legal word) whose lives depend on him. From his Charged Cautioned Statement dated 17th April 2014, he was 24 years at that time and that does not afford him any concession under the Juvenile Justice Act, as he was neither a juvenile nor a young offender at the time of the offences. Again, I agree with the Prosecution that there was the element of pre-meditation and a well calculated plan to steal the victim’s vehicle, vehicle documents and other items and in addition, to find a means to prevent her from ever revealing the dubious acts. Whether through killing her or causing harm to her, and the plan went through perfectly. The act of lying to the Professor to take his vehicle from him and using his vehicle to pick the victim were all premediated. Sending and selling the vehicle in Kumasi was also a good and cunning way to try to conceal the whereabouts of the vehicle. I have given consideration to Prosecution’s submission that other items stolen such as the huge amounts of monies and mobile phones of the victim were never retrieved. I am enjoined by the Ghana Sentencing Guidelines to consider all such aggravating and mitigating factors which I have done. Under the Criminal Offences Act, 1960 (Act 29), the offences of Causing Unlawful Harm under Section 69 and Stealing under Section 124 are classified as 2nd degree felonies. The punishment for each is not fixed. Page 8 of 10 Meanwhile under Section 296 (2) of the Criminal and Other Offences Act, 1960, (Act 30), an offence specified as a 2nd degree felony whose punishment is not fixed carries a term of imprisonment not exceeding ten (10) years. However, under of Section 296 (5) some offences are listed including Stealing under Section 124 which are usually referred to as the offences “involving dishonesty”. These offences though could be 2nd degree offences carry a term of imprisonment not exceeding twenty-five (25) years. Having expounded on the relevant sentencing available, I am obliged not only to consider the mitigating and aggravating factors available as enumerated above, both for and against the convict, but also to take into consideration the public interest and the degree of revulsion felt by law abiding and right thinking Ghanaians to this set of facts and incident which I have chosen to do. In that regard, I refer to the case of AMANIAMPONG VS. THE REPUBLIC (UNREPORTED) C.A DATED 28TH MAY 2014. I hereby sentence the convict to five (5) years imprisonment IHL on count (1) and Ten (10) years IHL on count (2). I have taken into consideration the five (5) years he has already spent in lawful custody. Both sentences are to run concurrently Sentences to take effect from today, pursuant to Section 315 (3) of Act 30 which stipulates: “A sentence of imprisonment commences on and includes the day on which it is pronounced.” The jury in this case is accordingly dissolved and discharged. Their services have been much appreciated. The Registrar of this Court is to inform the Foreman accordingly. The Court would also want to commend the case Investigator and the investigative team for a good conduct of investigations, they seem to have followed every lead obtained in the course of investigations and investigated same. Page 9 of 10 (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: GIFTY-ANN KORANKYE-TAYLOR (STATE ATTORNEY) FOR THE REPUBLIC. PAUL KUMI FOR THE ACCUSED PERSON. Page 10 of 10