ANYORKA VRS REPUBLIC (CC15/015/2024) [2024] GHAHC 192 (30 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY 30TH JULY 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, HIGH COURT JUDGE SUIT NO. CC15/015/2024 PETER ANYORKA V THE REPUBLIC JUDGMENT CRIMINAL APPEAL - ROBBERY Convict Appellant present Comfort Kwakye Antwi, Assistant State Attorney for the Republic Respondent present Patrick Abonebe for the Appellant present CHARGE The Convict Appellant was charged with Robbery contrary to section 149 of the Criminal Offences Act, 1960 (Act 29). FACTS The facts of the case are that the Complainant is the Manager of Timber Industry Development Division Sunyani. Accused person is a farmer and lives at Yawhima Sunyani. On 28th August 2017 at about 9:10pm Complainant on her way home from church met the accused person around an old cemetery who was wielding a cutlass and 1 instructed her to hand over her bag to him otherwise he will harm her with the cutlass. For fear of being injured the Complainant handed over her bag to the accused. Accused took to his heels with the bag containing I Phone 4S, valued GH₵ 1,500.00, two pen drives valued GH₵ 40.00, Vodaphone modem valued GH₵ 980.00 (sic), New King James Bible valued GH₵ 65.00. Barclays Bank ATM Card, Voter I.D card and SSNIT card. Accused withdrew GH₵ 150.00 from Complainant’s Vodaphone Cash after changing her pin number. Accused later called the Complainant on his MTN phone number and requested that the Complainant transfers GH₵ 5,000.00 to him on his MTN mobile phone money account before he will return the items to her. Accused sold complainant’s phone and went into hiding at Miregu in the Upper East Region. He stole a motorbike at Miregu and he was arrested. He was searched and the Complainant’s Barclays ATM card, SSNIT card, voter I.D card bearing Complainant’s name were found on him. On 23rd December, 2017 Sunyani police went to Miregu to arrest the accused person upon being informed about him by Miregu police. Accused was identified by Complainant as the one who stole her items. Accused admitted the offence in his investigation cautioned statement and said that he sold the Complainant’s two mobile phones to some boys at Yawhima but the police did not find anyone when the accused led them to a drinking spot at Yawhima. He was charged after investigations and arraigned in the Circuit Court Fiapre. CONVICTION AND SENTENCE On 12th January, 2018 the accused was arraigned in Fiapre Circuit Court and the case was adjourned for the Attorney General’s advice. On 22nd February 2018 the accused person’s plea was taken. He pleaded guilty to the charge. Voter I.D, SSNIT card, Barclays Bank Visa ATM card bearing the Complainant’s name were retrieved from the accused. The two phones were not retrieved from the accused person because he sold them. The accused person was convicted on his own plea to the charge of robbery. He pleaded for leniency and showed remorse for the few days he spent in custody. He was not known. 2 On 22nd February, 2018 the Circuit Court presided over by Justice Juliana Ananda Aikins as she then was, sentenced him to twenty five (25) years imprisonment in hard labour due to the seriousness of the offence. PETITION OF APPEAL Being aggrieved by the said conviction and sentence of 25 years in hard labour for robbery contrary to section 149 of the Criminal Offences Act, 1960 (Act 29) by Her Honour Justice Juliana Ananda Aikins as she then was, sitting at the Circuit Court Fiapre Sunyani on 22nd February, 2018, and upon being granted leave by this Court for extension of time to file Petition of Appeal on 8th November, 2023, the accused person appealed against his conviction and sentence. GROUNDS OF APPEAL The grounds of appeal are as follows; i. ii. The conviction and sentence should be set aside on grounds that the judgment is unreasonable or cannot be supported by the evidence on record. The trial Judge erred as she accepted the plea of guilty without explaining to the accused, the nature of the charge and the proceedings which follow a plea of guilty even though the accused was not represented by Counsel at the trial. iii. The sentence of 25 years IHL is harsh and excessive taking into consideration the circumstances of the case. ARGUMENTS IN FAVOUR OF THE APPEAL BY COUNSEL FOR THE APPELLANT Counsel for the Appellant filed written submission on 15th January, 2024. With reference to the case of Apaloo & Others vs. The Republic [1975] 1 GLR 156 @ 169 and section 31(1) 3 of the Court’s Act, 1993 (Act 459), noted the grounds on which an appellate Court will interfere with the decision of a trial Court as follows; 1. The verdict should be set aside on grounds that it is unreasonable and cannot be supported by the evidence. 2. The judgment of the trial Court should be set aside on grounds of wrong decision on a question of law and fact. 3. On ground that there was miscarriage of justice. With reference to section 30 of the Court’s Act Counsel outlined the Powers of the Appellate Court to; 1. Reverse the findings and sentence and acquit and discharge the Appellant or in the alternative 2. Reduce the sentence or in the alternative 3. Order for a retrial. Counsel considered the grounds under which a guilty plea simpliciter could endow an accused with a right to appeal namely; 1. If it can be shown that the Appellant did not appreciate or understand the charge or procedure and pleaded guilty 2. If it is found that the appellant pleaded to a non - existent crime. 3. If the appellant pleaded guilty but gave an explanation. 4 4. If the plea of guilty is such that in fact was no plea at all. 5. If no offence is founded on the admitted facts by prosecution 6. If there has been a miscarriage of justice by an apparent wrong acceptance of plea of guilty. GROUND 1 Conviction and sentence should be set aside on grounds that the judgment is unreasonable or cannot be supported by the evidence on record. Counsel argued that several unanswered questions and inconsistencies are borne in the facts. The charge sheet was hastily drafted and tainted with inconsistencies. The value of the Vodaphone modem was stated as GH₵ 980.00 in the facts but GH₵ 80.00 on the charge sheet. This would have been questioned by the trial Judge since the accused was self – represented. Counsel invited the Court to consider the value of the items coupled with the irregularities and inconsistencies associated with it. Total should be GH₵ 4,385.00 not GH₵ 4, 285.00. That the Judge having stated that the accused person is sentenced to 25 years IHL because of the “seriousness nature of the offence” was influenced by the value of the items which was fraught with inconsistencies. Counsel argued that there were no aggravating circumstances, no injuries, no longer period of trial, it was not planned for the learned trial Judge to use the word “seriousness”. Counsel contends that the inaccuracies in the items had a toll on the sentence which occasioned substantial miscarriage of justice. According to Counsel, the Appellant has an HND in Accounting from the Bolgatanga Polytechnic and for that matter educated and could not have carried I.D cards, SSNIT card, ATM card of the 5 Complainant on him since August 2017 if he was mentally sane. This according to Counsel raises questions which the trial Judge should have adverted her mind to probe into the mental health of the accused. Counsel prayed the Court to set aside the sentence for the Trial Judge’s failure to ensure that the accused person intended to plead guilty to the charge and also for her failure to enquire about inconsistencies in the charge sheet and facts which affected the accused person’s right to fair trial. GROUND 2 The trial Judge erred as she accepted the plea of guilty without explaining to the accused person the nature of the charge and the proceedings which follow a plea of guilty. This is a statutory provision according to Counsel, a breach of which will occasion substantial miscarriage of justice. Where accused is not represented by Counsel the law imposes a duty on a trial Judge to ensure that the plea is properly understood before a plea of guilty is accepted. With reference to the case of Dakrugu vs. The Republic, Counsel argued that the trial Judge was obliged under section 199 (1) and (2) of the Criminal Procedure Act, 1960 (Act 30) to probe the plea of guilty of the accused person but she failed to do so which occasioned substantial miscarriage of justice to the accused. Counsel submitted that considering the accused person’s plea of mitigation and the few days he spent in detention he anticipated to be set free. His mind was not adverted to the charge proffered nor the value of the items involved. Counsel prayed the Court that since the trial Judge failed to comply with section 199 (1) of Act 30 in convicting and sentencing the accused same occasioned substantial miscarriage of justice to the accused. Counsel prayed for the conviction to be set aside. 6 GROUND 3 The sentence of 25 years IHL is harsh and excessive taking into consideration the circumstances of the case. Counsel argued that since sentencing is a difficult task the Sentencing Guidelines comes in handy to assist Judges to perform this herculean task. The fact that the accused person was a first time offender should have been considered by the Court as a mitigating factor and a great one as such. There were no aggravating circumstances, no injury to the Complainant, minimal force was used, accused uttered words, peacefully received Complainant’s bag and took to his heels. He pleaded guilty simpliciter and saved the time of the Court which should have led to mitigation of sentence. The accused person acted alone which should have been considered. With reference to the Sentencing Guidelines and the levels of aggravating factors considered, Counsel concluded that the accused should fall into category “A” with minimum sentence of 15 years compared to this case with no aggravating factors. Counsel submitted that there was miscarriage of justice against the Appellant and prayed for an order to set aside the conviction and sentence and to acquit and discharge the accused. Counsel argued that the accused person was sentenced at twenty eight (28) years and he is now thirty three (33) years. He has spent five (5) years in prison. Counsel prayed the Court for reduction of the sentence to the barest minimum. SUBMISSION OF THE REPUBLIC AGAINST THE APPEAL The republic in a written submission filed on 22nd February, 2024 disagreed with Counsel for the Appellant that the facts do not support the charge. Counsel contends that a clear reading of the facts establishes the elements of robbery; the Appellant wielding a cutlass, instructing the Complainant to hand over her bag and the contents, that if the Complainant fails to comply he will harm her with the cutlass and the Complainant for 7 fear of her life handed over the bag to the Appellant. The Appellant pleaded guilty to the charge which were read over and explained to him in a language he understood and pleaded guilty. Counsel submitted that the mere inconsistencies in the facts basically typographical errors do not render the charge sheet defective. The particulars of offence complied with law and succinctly captured the nature of offence without any ambiguity. There was no substantial miscarriage of justice. In the worst case scenario such inconsistencies are mere technicalities which are not fatal. Counsel noted that the trial Judge sentenced the Applicant to twenty five (25) years because she deemed the offence of robbery as a serious offence. Counsel disagreed with Counsel for the Appellant that there were no aggravating circumstances and noted that the wielding of the cutlass, instruction of the victim to hand over her bag, threatening of the victim of being harmed if she fails to comply, Complainant for fear of her life handing over her bag to the Appellant are aggravating factors which led the trial Judge to use the word “seriousness”. The definition of robbery with the use of offensive weapon under section 149 of the Criminal Offences Act, 1960 (Act 29) as Amended by Act 646, the facts established that the Appellant committed robbery with offensive weapon and the Judge exercised her discretion in sentencing him to twenty five (25) years imprisonment. Counsel noted that Robbery is a menace which must be curbed with imposition of punitive and deterrent sentences to forewarn prospective offenders. The sentence was not harsh but served the five fold purpose of sentencing as stated in the case of Kamil vs. The Republic Criminal Appeal No. J3/3/2009 dated 8th December 2010 which are to be punitive, calculated to deter others, to reform the offender, to appease the society and to safeguard the community. Counsel however agreed with Counsel for the Appellant that since the Applicant did not waste the Court’s time and pleaded guilty simpliciter the Judge should have considered that to impose the minimum sentence of 8 fifteen (15) years IHL. A sentence of twenty five (25) years of the Appellant who was twenty eight (28) years when he committed the offence means he would spend a greater part of his youthful years in prison and the state will spend its scarce resources on him. A minimum sentence is preferable per the case of Frimpong @ Iboman vs. The Republic [2012] 1 SCGLR 297. Counsel is of a conviction that fifteen (15) years minimum sentence is preferable in the circumstance. Therefore, the appeal succeeds in part that the sentence is harsh and excessive. BY COURT Section 149 of the Criminal Offences Act, 1960 (Act 29) provides as follows Robbery A person who commits robbery commits a first degree felony. Section 150 of the Criminal Offences Act, 1960 (Act 29) provides as follows; Definition of robbery A person who steals a thing commits robbery (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. Section 149 of the Criminal Offences Act, 1960 Act 29 as amended by the Criminal Code (Amendment) Act, 2003 (Act 646) provides as follows; 9 149 (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 offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years. (3)In this section “offensive weapon” means 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 accused person was charged with the above offence and after the charge was read over and interpreted to him in the English language, he pleaded guilty to the charge. From the above definition of robbery, the elements to be established are that; 1. A person steals a thing 2. In stealing the thing, the person uses force or threat of criminal assault or harm 3. The use of the force or threat of harm is to overcome resistance in stealing the thing. GROUND 1 That the conviction and sentence be set aside that the judgment is unreasonable and cannot be supported by the charge I am of a considered view that the judgment is not in the least unreasonable neither is it the case that the facts cannot be supported by the charge as alleged by Counsel for the Appellant. From the narration of the facts the Complainant on 28th August 2017 at 9:10pm 10 saw the Appellant on a section of a road near an old cemetery. The Appellant wielded a cutlass at the Complainant and instructed her to hand over her bag to him, if she fails to comply, he will harm her with the cutlass. For fear of her life, she handed over the bag to the Appellant who flee with it. In my considered view therefore, the elements of robbery as stated supra were established by prosecution as follows; 1. That the Appellant stole the Complainant’s bag containing two mobile phones, one Samsung Tablet and her I.D cards etc 2. In stealing the above items, the Appellant used force by wielding an offensive weapon, a cutlass to threaten the Complainant to surrender 3. The Appellant succeeded by using the cutlass to avoid resistance from the Complainant. Counsel for the Appellant mentioned inconsistencies in the facts and charge sheet regarding the value of the stolen items and said that the inconsistencies in the value of the items occasioned substantial miscarriage of justice to the Appellant. I agree with Counsel for the Republic to disagree with Counsel for the Appellant that the mere inconsistencies in the value of the items are only technicalities which are not fatal to prosecution’s case. The said inconsistencies did not occasion substantial miscarriage of justice to the Appellant. The facts gave the stolen items and their values as follows; 1. I Phone 4S GH₵ 600.00 2. I Phone 6S GH₵ 2000.00 11 3. Samsung Galaxy Tablet GH₵ 1,500.00 4. Pen drives GH₵ 40.00 5. Vodafone modem GH₵ 980.00 (sic) 6. King James Bible GH₵ 65.00 The items and the values as given in the charge sheet are as follows; 1. Handbag GH₵ 100.00 2. I Phone 6S GH₵ 2,000.00 3. I Phone 4S GH₵ 600.00 4. Samsung Galaxy Tablet GH₵ 1,500.00 5. Pen drives GH₵ 40.00 6. Vodafone modem GH₵ 80.00 7. King James Bible GH₵ 65.00 I acknowledge the inconsistencies. Value of the modem is outrageous in the facts but corrected in the charge sheet. Value of the bag was added in the charge sheet but not 12 stated in the facts. Counsel for the Appellant says because of the value of the items that is why the trial Judge used the words, “seriousness of the offence” and that she took the value of the items albeit inconsistent into consideration in sentencing the Appellant which occasioned substantial miscarriage of justice to the Appellant. The fact cannot be denied that definitely the trial Judge considered the value of the items but it is the seriousness of the offence of robbery that weighed on her mind especially taking into consideration the use of offensive weapon to wit a cutlass. I therefore agree with Counsel for the republic that the facts support the charge of robbery. The conviction was therefore reasonable and same is supported by the charge. CONCLUSION ON GROUND 1 In the circumstance, ground 1 of the appeal fails and same is hereby dismissed. The conviction and sentence of the trial Circuit Court is hereby affirmed. GROUND 2 That the trial Judge erred by accepting a plea of guilty without explaining to the accused person the nature of the charge and the proceedings which follow a plea of guilty even though the accused person was not represented by Counsel Counsel argued that the trial Judge failed in her statutory duty to explain the charge and its consequences as required under section 199 (1) of Act 30 which is a statutory duty of the Judge. The Record of appeal shows that the charges were read out in English to the Appellant. Counsel for the Appellant indicated that the Appellant is an HND Graduate of a Polytechnic in Bolgatanga. Therefore, he understood the English language in which the charge was read and explained to him. The Appellant who understood the English language in which the charge was written had sufficient information about the charge which indicated as follows; the name of the Complainant Lydia Someah, the name of the 13 Appellant, Peter Anyorka, the age of the Appellant twenty eight (28) years, occupation of the Appellant, Farmer, the date the incident happened, 28th day of August 2017, the place where the incident happened at Abuakwa Sunyani in the Brong Ahafo Region, the items stolen; two phones, one Samsung Galaxy Tablet, a Vodafone modem, two pen drives, a hand bag, King James Bible, GH₵ 150.00 and the value of the stolen items notwithstanding the inconsistencies. I am therefore satisfied that the Appellant clearly understood the charge as same was read to him as well as the facts. Although he was self – represented, he clearly understood everything that was read to him in the English language for which reason he pleaded guilty simpliciter. The trial Judge therefore did not err by accepting a guilty plea of the Appellant although the Appellant was not represented by Counsel. CONCLUSION ON GROUND 2 In the light of the foregoing the 2nd ground of Appeal equally fails. The trial Judge did not err in accepting a guilty plea of the Appellant who was self - represented. GROUND 3 That the sentence of 25 years is harsh and excessive taking into consideration the circumstances of the case. I would consider the aggravating factors first. That robbery is a first degree felony, the highest of all felonies. That the Appellant used an offensive weapon a cutlass. That the items stolen were not retrieved since the Appellant sold them. That the Appellant benefitted from the crime. That the Appellant had the audacity to call the Complainant after stealing her items and asking her for more money before he would return her stolen items to her. The mitigating factors are that the Appellant is a first offender. That he pleaded guilty to the offence early without wasting the Court’s time and resources and 14 therefore must be given credit. There was no injury on the Complainant. The Appellant was 28 years old when he committed the offence and he has since spent five (5) years in prison and is now thirty three (33) years old. The Court takes that into consideration in accordance with article 14(6) of the 1992 Constitution which provides that; 14 (6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment. That the Appellant has more youthful years ahead of him which should not be wasted in prison. That the Appellant pleaded for leniency and showed remorse having spent five (5) years in prison. In the case of Frimpong @ Iboman [2012] 1 SCGLR 297 the Court stated as follows; …Whilst the minimum sentence of robbery has been fixed at 10 years simpliciter, in cases where offensive weapon is used, the legislature deemed it fit and proper to enhance the minimum sentence to 15 years imprisonment. Being a first degree felony means the legislature has categorized the offence of robbery as a grave one. The maximum sentence can therefore be any number of years that a Court deems suitable and appropriate under the circumstance. There is no doubt that robbery is a serious crime and various legislations in this country have sought to deal with it as best as they could. Having taken the age of the Appellant into consideration at twenty eight (28) years when he committed the offence and in line with the Frimpong @ Iboman case cited supra, I am of the view that the Appellant ought to be given “a sentence that he will finish serving to go back to his community for his peers, young and old to have something to learn from his “hopelessness of engaging in crimes such as robbery when reference is made to the Appellant and others in the same category”. 15 In the light of the foregoing, I agree with Counsel for the Appellant that the sentence of twenty five (25) years is harsh and excessive considering the circumstances of the case. Especially the fact that the Appellant is a first offender. I equally agree with Counsel for the republic that the minimum sentence for the offence would be appropriate. On the authority of section 30 (a) and (b) of the Courts Act, 1993 (Act 459) which provides that; Section 30—Orders available to Superior Courts over appeals. Subject to the provisions of this Sub-Part, an appellate court may in a criminal case— (b) on an appeal from any other order, alter or reserve the order, and in either case make any amendment or any consequential or incidental order that may appear just and proper. CONCLUSION ON GROUND 3 Consequently, ground (3) of the appeal succeeds that the sentence of twenty five (25) years In Hard Labour (IHL) is harsh and excessive taking into consideration the circumstances of the case. CONCLUSION / ORDERS The Court hereby sets aside the sentence of twenty five (25) years IHL imposed on the Appellant and hereby substitutes a sentence of fifteen (15) years imprisonment for the Appellant with effect from the date he was convicted and sentenced at the Circuit Court Fiapre, that is 22nd February 2018. In the circumstance, the appeal succeeds only on ground three (3). Grounds (1) and (2) are accordingly dismissed. The conviction of the Circuit Court Judge as she then was Her Honour Juliana Ananda Aikins is hereby 16 affirmed. The sentence of 25 years is hereby set aside and substituted with fifteen (15) years imprisonment. (SGD) JUSTICE JOYCE BOAHEN HIGH COURT JUDGE 30TH JULY 2024 17