ABABIO VRS REPUBIC (H2/16/20) [2021] GHACA 29 (22 April 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - DZAMEFE, JA (PRESIDING) SUURBAAREH, JA DODOO (MRS), JA Criminal Appeal Suit No: H2/16/20 22ND APRIL, 2021 ERNEST ABABIO @ BLACKIE - APPELLANT VRS. THE REPUBLIC - RESPONDENT JUDGMENT DZAMEFE, JA The appellant and 3 others were charged with two offences of Conspiracy and Robbery contrary to Sections 23 (1) of Act 29/60 and Section 149 (1) of Act 29/60 respectively. COUNT ONE STATEMENT OF OFFENCE Conspiracy to commit namely robbery: Contrary to Section 23 and 149 of the Criminal Code 1960, Act 29 as amended by the Criminal Code (Amendment) Act, 2003 (Act 646) PARTICULARS OF OFFENCE Kwaku Frimpong @ Iboman, Ernest Ababio @ Blackie, Daniel Amewu @ Coffie and Raymond Kwasi Wilson on 23rd April, 2002 at about 2.30am you did act together to seize, 1 | P a g e at gun point, Albert Mawusi Biga’s BMW NO. GR 2158 Q and other items in his house at Lashibi within the jurisdiction of this Court. COUNT TWO STATEMENT OF OFFENCE Robbery: Contrary to Section 149 of the Criminal Code 1960 Act 29 as amended by the Criminal Code (Amendment) Act, 2003 (Act 646). PARTICULARS OF OFFENCE Kwaku Frimpong @ Iboman, Ernest Ababio @ Blackie, Daniel Amewu @ Coffie and Raymond Kwasi Wilson on 23rd April, 2002 at about 2.30am you seized at gun point, Albert Mawusi Biga’s BMW NO. GR 2158 Q and other items in his house at Lashibi in the Greater Accra Region and within the jurisdiction of this Court. FACTS The brief facts are that on 23rd April, 2002 at about 2.30am the four suspects above attacked one Albert Mawusi Biga, complainant with locally manufactured guns in his house. The suspects tied up the security man and his wife and threatened the complainant of death if he did not surrender his BMW Saloon car keys and his belongings. They took the following items from the complainant: BMW No. GR 2158 Q, two Toshiba DVD players valued at $600.00, pioneer DVD player valued at $400.00, JVC Amplifier valued at $500.00, one pioneer Amplifier valued at $500.00, one pioneer car Amplifier valued at $50.00, one pioneer CD charger valued at $200.00, one car CD player, three wrist watches valued at $400.00 and two mobile phones valued at $550.00and other personal effect like clothing, shoes etc. 2 | P a g e The suspects were later arrested on a tip-off. All the four suspects have confessed in their statements to the commission of the offence and consequently the BMW has been retrieved from Domeabra in the Ashanti Region where it was being kept. The accused persons are therefore brought before you for trial. PLEA Count One: Conspiracy A1 A2 A3 A4 - - - - Not Guilty Not Guilty Not Guilty Not Guilty Count Two: Robbery A1 A2 A3 A4 - - - - Not Guilty Not Guilty Not Guilty Not Guilty JUDGEMENT The trial High Court after a full trial held that the four accused persons, Kwaku Frimpong @ Iboman, Ernest Ababio @Blackie, Daniel Amewu @Coffie and Raymond Kwasi Wilson on 23rd April 2002 at about 2.30am did conspire to commit robbery and robbed the complainant Albert Mawusi Biga of his BMW car, registration No. GR 2158 Q and other electrical items and they are all accordingly convicted of the offences of 3 | P a g e 1. Conspiracy to commit crime, contrary to Section 23 & 149 of the Criminal Code 1960 Act 29 as amended by the Criminal Code Amendment Act 2003, Act 644 and 2. Robbery, contrary to Section 149 of the Criminal Code, 1960 Act 29 as amended by the Criminal Code (Amendment) Act 2003 Act 646 SENTENCE In sentencing the trial High Court said “such people are a menace to the society. If they got the second chance, they will not allow their victims to live to tell their story and reveal their identities. The society will be better off being rid of them. They are each sentenced to a term of 65 years IHL on each of the two counts. NOTICE OF APPEAL He 3rd accused, dissatisfied with the judgment filed this appeal on the following grounds; - 1. The conviction was an error in law. 2. The sentences was harsh. However, in the written submission filed by the appellant, he abandoned the first ground appeal on conviction and argued the second ground which was that “sentence was two harsh”. With that, the first ground of appeal is hereby dismissed as abandoned GROUND II – Sentence was too harsh 4 | P a g e Counsel for the appellant in his submission repeated same that “we accept the conviction on both counts of conspiracy to commit an offence to wit robbery and the offence of robbery. We abandon the appeal on that ground. It is his submission that the sentence of 65 years IHL on both counts was too harsh since no lives were lost nor anybody harmed. They are therefore pleading for the court to have mercy on the appellant and reduce the 65 years IHL. Secondly the robbers took away the complainants car which was retrieved and given back to him in good and condition. He has therefore lost nothing. Counsel submit further that sentences are to serve the purpose of deterrence and to offer the convict the opportunity for reform and also to demonstrate society’s aversion for the crime committed. That the appellant was arrested in the year 2002 and he spent four years in custody before being sentenced. The appellant is also a first offender and of tender age of 20 years. Under Chapter 5 of the 1992 Constitution, headed “FUNDAMENTAL HUMAN RIGHTS & FREEDOMS, Art 14 Clause 6, states; - “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”. It is mandatory for any court sentencing a convict to take into account the period the convict has spent in lawful custody. This recognition must be seen or made apparent on the face of the record. The judge is bound to mention it in the judgment that the has taken consideration of the period spent in custody. In the instant appeal, it is not apparent on the face of the record that the learned trial judge took into cognisance the period spent in custody before his sentence. 5 | P a g e As a principle, sentencing is a matter of discretion for the trial court and an appellate court will only interfere when in its opinion, the sentence is manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle. Factors that a court considers in determining the length of sentence include, but not limited to the following; - 1. Any period of time spent in lawful custody in respect of that offence before the completion of his trial (Act 14 (6) of the 1992 Constitution). 2. The intrinsic seriousness of the offence. 3. The degree of revulsion felt by law abiding citizens of the society for the particular crime. 4. The premeditation with which the crime was committed. 5. The prevalence of the crime within the particular locality where the offence took place, or in the country generally. 6. The sudden increase in the incidence of the particular crime. 7. Mitigating circumstances such as the extreme youth, good character, remorse and reparation. 8. Aggravating circumstances such as the violence or the manner in which the crime was committed. 6 | P a g e See (i) Owusu Banahene vrs The Republic [2019] DLSC 6578 per Sophia Adinyira JSC, (ii) Kwashie vrs The Republic [1971] 1 GLR 488 at 493 CA. We think the trial high court judge erred in not considering the period the convict stayed in lawful custody as required by the 1992 constitution before the sentence. Secondly, we think the sentence is manifestly excessive having regard to the circumstances of the case. In sentencing convicts, the Judge is under an obligation to consider both the aggravating as well as mitigating circumstances as stated earlier. The court must draw a balance between the two so as to arrive at a fair sentence. Punishment may be punitive or deterrent but essentially is correctional. I dare say in sentencing convicts to prison terms the court is just taking away the right of freedom of the convict but not his life. We shall therefore allow the appeal against sentence as harsh and excessive and vary same by reducing the 65 years IHL to 25 years IHL on both counts Appeal is allowed. SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SUURBAAREH, JA I agree (JUSTICE OF APPEAL) SGD G. S. SUURBAAREH SGD DODOOO, JA (JUSTICE OF APPEAL) I also agree JENNIFER DODOO (MRS) COUNSEL: Nkrabeah Effah Dartey for the Appellant Dominic W. Bakoma (SSA) for The Republic - Respondent 7 | P a g e