S v Awuah and Another (CR/0244/2025) [2025] GHAHC 136 (17 March 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 17TH DAY OF MARCH, 2025 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0244/2025 THE REPUBLIC RESPONDENT VRS 1. KWABENA AWUA CONVICT/APPELLANTS 2. OBED SIAW @ KWAME OBED JUDGMENT The Appellants herein were arraigned before the Nkawkaw District Court on the 6th of June, 2023 wherein they were charged with the offences of conspiracy to commit crime to wit stealing and stealing contrary to Sections 23(1) and 124(1) of the Criminal Offences Act 1960 (Act 29). The appellants pleaded guilty simpliciter to the charges after same were read and explained to them. The court proceeded to convict them on their own plea and sentence them on count one (1) to 24 months imprisonment and on count two (2) to 60 months imprisonment with the sentences to run concurrently. The court added further that section 300 of Act 30 apply. It is against this sentence that the appellants filed the instant petition of appeal on the 14th of February 2025 praying this appellate court to quash the sentence of the District court on the basis that it had no jurisdiction to impose such a sentence on first offenders. GROUNDS OF APPEAL The grounds of appeal filed are as follows: 1. That the sentence is excessive and beyond the jurisdiction of the trial court as stipulated by section 48(a) of the Courts Act 1993 (Act 459) as amended by Act 620. 2. That the process was erroneous as the appellants are not known to the court so Section 300 of Act 30 cannot apply. 3. That the harsh and excessive sentence has occasioned a substantial miscarriage of justice. 4. That we deeply regret our actions and it is out of same that we did not waste the court’s time by pleading guilty simpliciter. 5. That the appellants are first offenders who prior to their conviction had no brush with the law hence their prayer for the court to consider same. FACTS OF THE CASE The case of the prosecution is that the complainant Alice Korang also known as Afua Alice is a famer and lives at Apradan near Nkawkaw. The accused persons Kwabena Awua, 25 years and Obed Siaw also known as Kwame Obed, 30 years are all farmers resident at Kwahu Daa. The prosecution states that on the 28th of May 2023 at about 9:00pm, the accused persons went to a forest to search for snails. Obed Siaw was in possession of a Baikal shot gun with five (5) live Alpha cartridges. During the search and on reaching the complainant's pigsty, accused Obed Siaw shot one of the complainant's Boar (male pig) valued at GH¢4,000.00 in the pigsty killing it instantly. Right afterwards, accused Kwabena Awua quickly jumped into the pigsty, picked the dead Boar and concealed it in a fertilizer sack and then took it to Kwahu Daa. On 29th of May 2023, accused Kwabena Awua sold the pork to Kwahu Daa town folks and later they share the proceeds. On the 2nd of June 2023, the complainant had information that, it was the accused persons who stole her Boar, hence she reported the matter to the committee chairman of Kwahu Daa one Kofi Bimpong. He also arrested the accused persons and handed them over to the Police for action. The accused persons in their respective investigation cautioned statements, admitted the offences and after investigations, they were jointly charged for the offences as stated on the charge sheet and arraigned before court. RESOLUTION OF THE APPEAL GROUND ONE: That the sentence is excessive and beyond the jurisdiction of the trial court as stipulated by section 48(a) of the Courts Act 1993 (Act 459) as amended by Act 620. Section 48 of the Courts Act 1993 (Act 459) as amended provides for the criminal jurisdiction of the District Court. The sections related to the instant case are subsections 1(a) and4. It provides that “(1) In criminal matters, a District Court has jurisdiction to try summarily (a) an offence punishable by a fine not exceeding five hundred penalty units or a term of imprisonment not exceeding two years or both the fine and the imprisonment; (4) Where under an enactment increased punishment may be imposed upon a person previously convicted of a crime, a District Court may impose the increased punishment, or twice the maximum punishment prescribed by subsection (2) whichever is the lesser.” The punishment for stealing as per Section 124 of Act 29/60 and Section 296 of Act 30/60, is that a person convicted of the offence of stealing is liable to a term of imprisonment not exceeding twenty-five years. The law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that criminal offence. Section 24(1) of Act 29 therefore provides that: “(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.” From the above therefore, then the trial court had the jurisdiction to sentence the appellants to a maximum sentence of two years IHL unless there is an enactment which empowers the court to impose an increased punishment or twice the maximum punishment. In the instant case, the trial judge imposed an increased punishment of 60 months on count 2 applying section 300 of the Criminal and other offences Procedure Act 1960 (Act 30). Section 300(1) of Act 30 under the heading “previous convictions” provides that: “Where a person, having been convicted of a criminal offence, is again convicted of a criminal offence that person is liable to increased punishment provided in the Table annexed to this section and the notes to it or to a period of detention in this Act called "preventive custody" under Part Thirteen. S. A Brobbey in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana 2nd Edition at 215 writes that: “Any previous conviction of an accused may also be considered in imposing sentence: see Act 30, s 300 as amended by Act 653. As noted already, evidence of such conviction should not be led until the conclusion of the trial and after the conviction has been pronounced. Unless the accused admits the conviction, the prosecution must prove it: see Akakpo v The Republic (Practice Note) [1974] 1 GLR 65 and Commissioner of Police v Marboah (Practice Note) [1962] 2 GLR 159, SC. A previous conviction to be taken into consideration in passing sentence is one in which the sentence imposed has been served, after which the accused has subsequently been convicted, but not where the accused is still serving the alleged previous conviction: see Blackie v The State (Practice Note) [1962] 2 GLR 219, SC. In Amoah v The Republic (supra) it was held that a previous conviction to be considered must be in relation to a similar offence unless the enactment states otherwise. In that case, the accused was convicted and fined ¢400 or two years' imprisonment with hard labour for a minor offence relating to property damage because he admitted one previous conviction for causing unlawful harm. On appeal, it was held that the previous conviction was not similar to the offence of causing damage. On the contrary, unlawful entry and stealing, for instance, have been held to be offences of the same or similar character: see Blackie v The State (Practice Note) (supra).” Per the law therefore, there must be evidence of the previous conviction laid before the court unless the accused person admits same. Further to that, the previous conviction must be in respect of a similar offence for same to be used as a basis for an increased punishment and the sentence imposed must have been served. From the record of appeal, there is no evidence of any previous conviction of the appellants in the nature of the offences for which they were convicted to mandate the trial judge to impose an increased punishment above the criminal jurisdiction of the District Court. Section 30 of the Courts Act 1993 (Act 459) as amended gives an appellate court the power to annul or vary an order of imprisonment or any other punishment imposed on the person convicted. That being the case, the sentence of 60 months for the count of stealing, Count 2 is hereby set aside and a sentence of Nineteen (19) months IHL substituted. With regards to the ground that the sentence is harsh and excessive, I have considered that the appellants are first time offenders, their extreme youth and the value of the item stolen and set aside the sentence of 24 months on count one and substitute same with the sentence of 19 months IHL. The sentence of 19 months IHL on Count One and 19 months IHL on Count Two will concurrently and is to commence on the 6th of June, 2023 when the Appellants were sentenced. The appeal succeeds. PARTIES: APPELLANTS PRESENT COUNSEL: APPELLANTS IN PERSON. MAAME AFUA OSEI-GYAMERAH FOR THE REPUBLIC/RESPONDENT PRESENT (SGD) MARY M. E YANZUH J. JUSTICE OF THE HIGH COURT 7