AKALEK & 5ORS VRS REPUBLIC [2024] GHAHC 377 (12 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE- BOLGATANGA UPPER EAST REGION HELD ON 12TH JULY, 2024 BEFORE HIS LORDSHIP CHARLES GYAMFI DANQUAH, J. UE/BG/HC1 /D15/06/2024 1.AKALEK @ MANDELA 2. BATAME DAVID APPELLANT 3. KOLOG ISAAC 4.ESSIEN (AT LARGE) 5. AKWASI ( AT LARGE) 6. GUCCI ( AT LARGE) VERSUS THE REPUBLIC RESPONDENT JUDGMENT INTRODUCTION The Appellant Batame David was convicted and sentenced to 30 years imprisonment together with two other persons Akalek @ Mandela and Kolog Isaac. Though the three were convicted and sentenced on the 27th January, 2023 it is only the Appellant who has filed this appeal against his sentence. The Appellant was tried by the Circuit Court, Bolgatanga presided over by His Lordship Alexander Graham who sat as additional Circuit Court Judge. The Appellant was not satisfied with the 30 year jail term imposed on him for the offence of conspiracy to commit Robbery contrary to Section 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) as amended by Criminal Offences (Amendment) Act, 2003 (Act 646). The Notice of Appeal pursuant to leave granted by this Court differently constituted was filed on 14th July, 2023. The grounds of appeal were that: 1. That the sentence of Thirty (30) years IHL is harsh and excessive having regard to the fact that the Appellant is young and first time offender. The relief sought by the Appellant is for the Court to set aside the sentence imposed on him by the Trial Court and in its place impose a lesser sentence. It should be noted that the Appellant appealed against the sentence of the Court and left the conviction untouched. The charge against the Appellant at the trial Court was as follows : STATEMENT OF OFFENCE Conspiracy to commit Robbery : Contrary to Sections 23 (1) and 149 of the Criminal Offences Act, 1960 (Act 29) as amended by Act 646 of 2003. PARTICULARS OF OFFENCE 1. Akalek @Mandela, Galamsey operator, 32 years: 2. Batame David, Galamsey operator, 22 years : 3. Kolog Isaac, Galamsey operator, 19 years, 4. Essien (At large ) 5. Akwasi (At large) and 6. Gucci (At large) : For that you on the 28th day of October, 2020 at about 10:00 pm at Obuasi Mining Site, Gbane in the Upper East Region and within the jurisdiction of the Court, you did agree to act together for the purpose of using threat of criminal assault and force to steal. FACTS OF THE CASE The summary of the facts as presented in Court were the following; The complainant, Isaac Mensah, is a small scale miner and a business man who dealt in the buying and sale of gold. He is resident at Obuasi mining site within the Gbane Mining enclave. The Accused persons A1, A2 (the Appellant) and A3 are all galamsey operators and were all residents at Obuasi Gbane Mining Site. In October 2020 A1, A2 and A3 being part of a six member gang met and hatched a plan to Rob the complainant and his wife who mostly bought gold from galamsey operators and kept same in their house. The master planner was A4. On 28th October, 2020 the gang agreed with A2 and A3 to be spies on complainants house and they both reported back to the rest of the gang that the complainant and the wife were at home. With the information provided the gang including A1 invaded the complainants household with weapons including two AK 47 assault rifles and robbed them of the their gold and money, all totaling Ghc 120,000.00. The arrest of one led to the arrest of the others apart from those at large. A1, A2 and A3 further disclosed that they had received cash the sum of Ghc 10,000.00, Ghc 9,000.00 and Ghc 1,000.00 respectively as their share of proceeds from the sale of the complainant’s gold. They were arraigned before the Court, charged with the offences, convicted and sentenced after a full trial. As already stated the Appellant was found guilty of conspiracy to commit Robbery and after the conviction was sentenced to thirty years IHL. The Appellant is in Court not because of his conviction but because he claimed the sentence imposed by the Trial Court was harsh and excessive. THE LAW UNDER WHICH THE APPELLANT WAS SENTENCED. These laws are contained in statutes and legal precedents. Section 24 of the Criminal Offences Act, 1960 (Act 29) prescribe the punishment for the offence of Conspiracy. It states: Section 24 (1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence. The Criminal Code (Amendment) Act, 2003 (Act 646) which further amended Section 149 of Act 29 states as follows: “Robbery 149. (1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten 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. (2) For the purposes of subsection (1) the Attorney - General shall in all cases determine whether the offence shall be tried summarily or on indictment. (3) In this section “offensive weapon” mean any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and “offensive missile” includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown.” The law is clear that where the person who conspires in the commission of a criminal offence as robbery is found guilty of the offence then the minimum sentence shall be 10 years imprisonment and where an offensive weapon or offensive missile is used in the commission of the offence, the minimum sentence shall be 15 years. The law maker made no provision on the maximum sentence. In the case at hand the learned trial Judge was within his jurisdiction when he sentenced the Applicant to 30 years imprisonment. The Appellant at the time of the commission of the offence was only 22 years and did not also take part in the substantive offence of robbery. His charge was conspiracy. However, the law is that where a person is charged and convicted of the inchoate offence of conspiracy to commit robbery and the substantive offence of robbery is committed then the person who is charged with the inchoate offence of conspiracy shall be punished in the same way as the person who committed the substantive offence of robbery as stated under Section 24 (1) of Act 29 of 1960. RESOLUTION OF THE GROUNDS OF APPEAL The ground of appeal as contained in the notice of appeal is that the sentence is excessive, the appellant being young, a first time offender and a small scale mining operator. In his submissions filed on 10th May, 2024 on the issue of the Appellant being a first time offender learned Counsel for the Appellant cited the cases of HARUNA vs THE REPUBLIC (1980) GLR 189 and ABU & OTHERS vs THE REPUBLIC (1980) GLR 294 where in the first case Taylor J. (as he then was) stated that: “…. when young men (such as the appellant) have their first brush with the law, it was essential in the interest of the reformative element in criminal justice that they be not sent 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 courts must avoid incarcerating young offenders.” After touching on the young status of the Appellant learned Counsel for the Appellant again made submissions on the role played by the Appellant as far as the commission of the offence is concerned. That the Appellant who was involved in a group crime only played a minor role unlike the others and quoted from the Abu & Others vs the Republic case cited supra where the celebrated Taylor J. again stated as follows: “…. In determining sentence for group crimes like conspiracy to steal and stealing, the sentence on individual members ought to reflect the part each played: those who played major role should receive more, and those who played a minor role less. Also, to be considered was the part played by each Appellant, the fact that they were first offenders, the nature of the offence, the value of the property, the degree of aggravation and planning and the part played by each in the organization and planning.” According to Learned Counsel for the Appellant the Appellant was only sent by A1 to spy on the house of the Complainant without knowing the reason for which he was sent on that errand. That the Appellant never knew the intentions of the 1st Accused and again urged the Court to consider the fact that the Appellant had never had any brush with the law. I must here, before delving into this issue put on record that no one could tell whether the Appellant knew the purpose for which he was sent to the Complainant’s house to find out whether he was at home or not. The saying is that no one knows what is in the devil’s mind. I do not know the reason behind learned Counsel for the Appellant’s submissions on the ingredients of the commission of the crime of conspiracy. This is because learned Counsel made this clear in the notice of appeal that the Appellant’s ground of appeal has to do with the sentence and not the conviction. Were the appeal against the conviction, same should have been stated for the Respondent to react accordingly. In their submissions filed on 21st June, 2024 the Respondent stated in clear terms that because the Appellant is not contesting the conviction they will not delve in the procedure leading to the Appellant’s conviction. I do not therefore see the need to evaluate the continuous submissions on mens rea and actus reus by learned Counsel for the Appellant. SUBMISSIONS BY THE RESPONDENT In their submissions learned Counsel for the Respondent debunked the position that the Appellant was not aware of the mission to spy on the Complainant’s house. The facts from the Appellant in his own caution statement indicates in clear terms that the Appellant was aware of the purpose for which he was sent. The Appellant was sent not only once but on two occasions and on all those instances came back to report on their mission and the contents of the caution statement is no doubt that the Appellant had full knowledge of the robbery incident on the 28th October, 2020. I therefore agree with the submission of learned Counsel for Respondent stated that the Appellant was aware of the purpose for which he was sent to spy on the Complainant’s house and that the caution statement is enough evidence to that effect. Learned Counsel cited the case of ASIAMAH v THE REPUBLIC ; Criminal Appeal No J3/06/2020 dated 4th November, 2020 where the Supreme Court per Torkornu (Mrs) JSC (as she then was) held that the testimonies of the two accused persons who stood trial with the Appellant provided direct evidence on how the conspiracy was hatched with Appellant at the center of the false pretenses undertaken. Learned Counsel for the Respondent again urged on the Court to reject the submission that the Appellant is of good character and cited the case of REPUBLIC vs ADU-BOAHEN (1972) GLR 70 where the Court made it clear that once it decides to impose a deterrent sentence the good record of the Accused is irrelevant. It appears from the contents of the submissions of learned Counsel for the parties that a lot of research went into their work. The major issue for determination by this Court is whether or not the 30 years IHL sentence imposed on the 22 year old young man for conspiracy is excessive. Where a Court is called upon to consider a criminal appeal it has to consider certain factors. In the case of APALOO vs THE REPUBLIC (1975) 1 GLR 156 it was stated thus: “The principles upon which the Court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the Court had been trying the appellant, they might have passed a somewhat different sentence. The court would interfere only when it was of opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle.” The Courts have held over the years that there is a purpose for which every sentence is imposed. Among the authorities include AMANIAMPONG vs THE REPUBLIC (J3/10/2013) (2014) GHASC 163 (28th May, 2014. In this case the Supreme Court through Owusu JSC held thus; “ Punishment is justifiable as a deterrent not only to the criminal himself, but also even more importantly, to those who may have similar criminal propensity. A way must be found to protect society from the activities of these criminals and to me, this way is confinement for a considerable length of time. The Appellant if he is mindful of reforming must do so while in prison. I therefore under the circumstances do not consider the 30 years IHL imposed on the Appellant by the Court of Appeal harsh and excessive.” Learned Counsel for the Respondent urged the Court to juxtapose the Amaniampong case with the present case and dismiss the appeal as unmeritorious. This is because the present Appellant is even older. The Appellant in that case was 20 years yet the Supreme Court did not accede to the prayer for the reduction of the sentence. So also in the case of KWAKU QUAYE ALIAS TOGBE vs THE REPUBLIC ( Criminal Appeal No. J3/08/2020) Professor Mensah Bonsu JSC stated as follows ; “ The appellant appears to think that being a first-time offender or being young gives one an entitlement to lighter punishment than would otherwise be imposed. Nothing could be far from the truth. It is important to highlight the fact that these are only two of the many factors that the court considers in imposing the sentence. The court would put the seriousness of the offence first before mitigating factors that the court could consider at its direction. There is no entitlement since it is at the discretion of the Court. As already stated the Courts have dealt with the issue of sentencing and the factors to be considered in a plethora of cases and they include Gligah & Ahiso vs The Republic ( 2010) SCGLR 870; Frimpong alias Iboman vs The Republic (2012) SCGLR 297 and Kamil vs The Republic (2011) 1 SCGLR 300. The two mitigating factors canvassed by learned Counsel for the Appellant is what the Supreme Court stated that they are of no moment and that what the Court put first is the seriousness of the offence. Being a young offender and a first time offender are of no moment where the offence committed is a serious one. Learned Counsel for the Respondent however cited two robbery cases where the offence was grave but the appellate courts did something about their sentences. In the case of NELSON MAKAFUI FIAKPUI vs THE REPUBLIC (Criminal Appeal H2/01/2022 dated 11th March, 2022 a young man of 19 years was convicted of robbery and sentenced to 20 years imprisonment IHL. He appealed to the High Court on the grounds that the sentence was harsh. Since the Appellant committed an offence for which there was no option of a fine and therefore treated as an adult inspite of the fact that he was a young offender of 19 years, nevertheless took into consideration the youthful age of the appellant and the fact that the offence though grave was not aggravated and that no harm was occasioned to the complainant and reduced the sentence of 20 years to 15 years. The Appellant’s further appeal to the Supreme Court for reduction of the 15 years imprisonment was dismissed. In yet another case cited by the learned Counsel for the Respondent, ABU MOHAMMED vs THE REPUBLIC (Criminal Appeal No. 33/03/2023 dated 17th April, 2022 the Appellant at the trial Court was convicted of the offence of robbery and sentenced to 25 years imprisonment IHL. The Court of Appeal reduced the sentence of 25 years to 21 years because the trial Court failed to take into account the period of 3 years 4 months spent in lawful custody during the trial. His further appeal to the Supreme Court was dismissed. In the case at hand the Appellant was sentenced to thirty years IHL. He was found guilty of conspiracy to commit robbery but was not involved in the substantive crime of robbery. The Appellant was treated just like all the other Accused persons. Though the Appellant was found guilty of conspiracy, he was not part of the gang that attacked the Complainant. After the commission of the offence the Appellant was rewarded for the part played. The offence under review was a serious offence, there is also a degree of revulsion felt by the law-abiding citizens of society for this particular offence. The prevalence of robbery in the Country is of major concern and as the trial Judge put it that from all indication, he found the Appellant quite unrepentant. That a perusal of the records demonstrate the resolve to deny their actions by and through any means. There is no denying of the fact that the Court took the young age of the Appellant into consideration. The point is that the trial Court took into consideration all the available mitigating factors before sentencing the Appellant and what should be born in mind is the statement by His Lordship Ansah JSC in the case of KAMIL vs THE REPUBLIC (2001) SCGLR 300 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 safeguard to this Country.” The lawmaker set the minimum sentence for the offence of robbery at 10 years and where offensive weapon or offensive missile was used, a minimum of 15 years. The Appellant was sentenced to twice the minimum sentence which is 30 years. As already stated the trial Judge exercised a discretion. However, the part played by the Appellant was not considered at all. The Appellant was lumped up with the other accused persons. His age and being a first-time offender should have also played a role in sentencing the Appellant. The 30 year sentence was manifestly excessive having regard to the circumstances of the evidence before the Court. The sentence was right in principle but the circumstances of the Appellant situation called for a lesser sentence than the 30 years imprisonment. Based on the analysis made and having in mind the fact that the Appellant was just 22 years and a first time offender and having regard to the pronouncement of the celebrated Taylor J (as he then was) in the Abu & Others vs the Republic case cited supra that in determining sentence for group crimes like conspiracy to steal and stealing, the sentences on individual members ought to reflect the part each played; those who played major role should receive more, and those who played a minor role less. Also to be considered was the part played by each Appellant, the fact that they were first offenders, the nature of the offence, the value of the property, the degree of aggravation and planning and the part played by each in the organization and planning.” The Appellant from the totality of the evidence on the face of the law deserve a reduction of the sentence. The 30 years IHL imposed on the Appellant is therefore set aside. This is because the Appellant will be of no benefit to society after 30 years in incarceration. In place of the 30 years IHL imposed, this Court imposed a sentence of 20 years IHL from the date of his conviction and sentence which is 27th January, 2023. The appeal is allowed in terms of the variation in the sentence imposed on the Appellant. HIS LORDSHIP CHARLES GYAMFI DANQUAH, J ( HIGH COURT JUDGE) COUNSEL: 1. MOHAMMED TIAMIYU, ESQ FOR THE APPELLANT. 2 LILIAN ADAMWABA BUNTUNGU (ASA) FOR RESPONDENT.