REPUBLIC VRS AKANTOGE [2024] GHAHC 234 (19 January 2024)

1 | P a g e IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON FIRDAY THE 19TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG- OPOKU ESQ. THE REPUBLIC …………. APPELLANT SUIT NO. CC16/076/23 VRS: REBECCA AKANTOGE @ ABENA KUMA ….. RESPONDENT ================================================= JUDGEMENT ============================================= This is an appeal against the sentence imposed on the Respondent by the Techiman Circuit Court presided over by His Honour Edward Twum (as he then was) in a judgement dated 18th February, 2023. The Respondent has been arraigned before the court for; (1) Assault contrary to section 84 of the criminal offences Act of 1960 (Act 29) (2) Causing harm contrary to section 69 of the criminal offences Act of 1960 (Act 29) Although Respondent initially pleaded not guilty but she later changed her plea to guilty consequently the trial Circuit Court convicted her on her own guilty plea and sentenced her as follows; 2 | P a g e Having pleaded guilty to the charge of causing unlawful harm. The accused person is sentenced to a fine of fifty (50) penalty units or in default, twelve (12) months imprisonment. In addition, the accused is to be bonded to be of good behavior for a period of 12 months or in default she will serve twelve (12) months imprisonment. The trial court also stated that it arrives at this sentence by taking into consideration accused plea for mitigation and the fact that the accused is first time offender. Being dissatisfied with the said sentence of the trial court, the Republic/Appellant has appealed to this court on one ground of appeal that is; (1) The trial Circuit erred in law when it imposed a sentence of a fine for the offence of causing harm”. BRIEF FACTS – Victim Sheila Akantoge is a class three (3) pupil of Adventist Preparatory School Kintampo. The Accused/Respondent, Rebecca Akantoge – aged 32 years is a trader at Magazine Kintampo. Victim is the daughter of the Accused’s elder brother. About 6 (six) years ago, victim’s mother and father got separated and her father brought her to live with her Auntie Rebecca Akantoge at Magazine, a suburb of Kintampo. On 16th November, 2022 at 18:20 hours. The victim was sent by the Accused to buy two cedis worth of roasted groundnut for her which she obliged. After buying the groundnut and on her way back, she ate one cedi worth of the groundnut and returned home with remaining one cedi worth of groundnut. Accused questioned the victim as to why she returned home with only one cedi worth of groundnut instead of two cedis victim replied that she had eaten it but her answer did not go down well with the accused and subjected the victim to severe beatings. Not satisfied with the beatings accused took a hot electric iron and placed it on the chest and abdomen of the victim causing severe burns on the chest and abdomen. She turned the back of the victim and used the same 3 | P a g e hot iron to burn her right arm. Accused realizing that she will be exposed when she takes victim to the hospital refused to take the victim to the hospital on Wednesday 23rd November, 2022 at 15:00 hours a woman who came across the victim called Kintampo police and reported the ordeal of the victim to the police. Police proceeded to the house of the accused and arrested her to the police station and took the victim to Kintampo Municipal Hospital for treatment. Accused was cautioned and charged with the offence as stated in the charged sheet after investigations and brought before this Honuorable Court. GROUND OF APPEAL – “That is the Circuit Court erred in law when it imposed a sentence of fine for an offence of causing harm”. The learned counsel for the Republic appellant herein arguing this ground of appeal in her written submission posited that; That thus the court is duty bound to apply the law in imposing sentence and has no laxity or discretion to go outside the statute when the punishment for an offence is fixed. The hands of the court regardless of any mitigating factors shall be tied, he support this assertion with the case of KWAKU FRIMPONG alias IBOMAN VRS. THE REPUBLIC Criminal Appeal No. J3/5/2010 dated 18th January 2012. Learned counsel for the Republic further reiterated that the Accused/Respondent was charged with the offence of unlawfully causing harm. Although she admits that the offence or the section does not provided the punishment for an offender who is found guilty of the charge. Nevertheless a recourse to section 296 (1) of the criminal offences proceedings Act, Act 30 of 1960 as amended by Act 261 section 5 stipulates as follows; “Where a criminal offence which is not an offence mentioned in subsection (5) is declared by an enactment to be second degree felony and the punishment for that 4 | P a g e offence is not specified, a person convicted of that offence is liable to a term, not exceeding ten years” Following from this provision the learned counsel for the Republic/Appellant then submitted that, the punishment for causing harm is a term of imprisonment not exceeding 10 years consequently the trial Circuit did not have any power whatsoever, to have imposed a sentence of fine of the Accused/Respondent and humbly submitted that the trial Circuit therefore committed a grave error of law by imposing fine on the Accused/Respondent instead of a term of imprisonment. The learned counsel further submitted that since the pregnancy test on the Accused/Appellant proved negative the only option left for the trial judge was to have applied the letter of the law specifically section 296 (1) of the criminal procedure Act, of 1960 Act 30 as amended which does not give room for imposition of fine. And therefore the sentence of fine imposed must be set aside and appropriate sentence imposed, because the sentence imposed by the trial Circuit Court was not only wrong in law but also in principle. In response counsel for Accused/Respondent in his written submission, submitted that by section 296 of Act 30, the offence of causing unlawful harm is punishable by term of prison and not fine, and therefore by the said provision, it is clear that there is no option of fine under section 69 of Act 29. Learned counsel for the Accused/Respondent therefore conceded that the trial circuit court erred in law by sentencing the Accused/Respondent to pay fine instead of imposing prison term. In essence counsel for the Accused/Respondent agreed to the argument made by learned counsel for the Republic/Appellant in this argument an appeal against sentence. Nevertheless according to the learned counsel for the Accused/Respondent his point of departure with the 5 | P a g e counsel for the appellant is his prayer for imposition of a deterrent prison sentence which will not be in the interest of the victim and the society. Learned counsel for the Accused/Respondent finally concluded his written submissions as follows; “ My lord, the arguments canvassed and the authorities cited, it will be just and fair for the court to impose a lesser suspended custodial sentence on the Respondent who has taken care of the victim when her own biological mother abandoned her”. Now taking the ground of appeal into consideration that is; “The trial Circuit Court erred in law when he imposed a sentence of a fine for the offence of causing harm” First of all it must be noted that one of the clearly settled principles of law which admits of no controversy is that an appeal is by way of re-hearing what does, this mean. In essence, what this means is that as an appellate court, whenever, an appeal comes up for hearing, the appellate court must consider it tasks as re-hearing of the case. The appellate court must put itself in place of the trial court and as in this instance and consider in detail whether the trial conformed to settled principle of law, when it comes to sentencing. The essence of criminal justice is punishment of persons who violate the criminal law. Various forms of punishment are provided by our laws judges are now fully aware that the fundamental purpose of sentencing is that of contributing, along with crime prevention measures to respect for the law and maintenance of a just, peaceful and safe society. This purpose is met by imposition of just penal sanctions that reflect the usual array of sentencing objectives. Thus every sentence must be consistent with and 6 | P a g e informed by, some penological goals and sentencing principles some of philosophical bases of sentencing include; 1) Prevention of crime 2) General and specific deterrence. 3) Separation of offending 4) Rehabilitation 5) Reparation 6) Retribution Hence it is said that the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence. However, the determination of fit sentence is subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. Nevertheless it must be noted that in the context of criminal law, law is discretionary provided the sentence is within the statutory limit – see the case of HARUNA VRS. THE REPUBLIC (1980) GLR 189 learned counsel for the applicant argues that, the trial Circuit court erred in law, when it imposed fine on offence of causing harm instead of prison term. In fact the Accused/ Respondent was charged with the offences of assault and causing harm contrary to sections 84 and 69 of criminal offences Act of 1960. Although initially the Accused/Respondent pleaded not guilty, she later change her plea of not guilty to guilty of the said offences charged. Since guilty plea amounts to judicial confession and also constitutes conviction. The trial Circuit Court accordingly convicted the Accused/Respondent on her own guilty plea. However, the trial Circuit Court never passed sentence on the charge of assault which is misdemeanor, but rather passed 7 | P a g e sentence on the Accused/Respondent in respect of the offence of causing harm, by sentencing the Accused/Respondent to pay fine of 50 penalty units or in default 12 months imprisonment, in addition the Accused/Respondent was bonded to be of good behavior for period of 12 months or in default, she will serve 12 months imprisonment. The charge of causing harm is a second degree felony and section 69 of criminal offences Act, of 1960 (Act 29) provides that; “A person who intentionally and unlawfully cause harm to any person commits a second degree felony” However, it must be noted that the section did not provided the punishment for an offender who is found guilty of the charge. Nevertheless in such a circumstance the judge has to look at section 296 (2) of criminal procedure Act, Act 30 of 1980 which states that; “Where a criminal offence which is not an offence mentioned in sub-section 5 is declared by an enactment to be a second degree felony and the punishment for the offence is not specified a person convicted of that offence is liable to a term of imprisonment not exceeding 10 years. For avoidance doubt sub-section 5 of section 296 as amended by Act 261 section 5 states as follows; “A person convicted of a criminal offence under any of the following sections of the criminal offences Act, 1960 (Act 29) that is to say sections 124,128, 131, 138, 145, 151,152,154,158,165,239,252,253 and 260 is liable to a term of imprisonment not exceeding 25 years”. 8 | P a g e From this it is worth saying that sub-section 5 of section 296, the proviso to the above provision does not have and or include section69 of Act 29. Hence it is clear that punishment for causing harm is imprisonment for a term not exceeding 10 years although as stated imposing of punishment is the discretion of the trial court however, this discretion is subjected or fettered by well-defined constitutional, statutory and common law exceptions. The court of appeal stated this principle in the case of Ocloo Vrs. The Republic (2014) 69 GMJ 173 where the court of Appeal observed as follows; “The general rule is that, sentencing is at the discretion of the court as long as it falls within the statutory limit imposed by law, when the discretionary power is conferred on a person, he is enjoined by Article 296 of the 1992 constitution to exercise same in a fair and candid manner, in accordance with due process and devoid of any bias, arbitrariness or personal bias”. Therefore a sentencing judge must exercise his discretion within the parameters of Act 30, hence a trial judge in imposing sentence must respect both statutory minimum and maximum, because, where the law has imposed statutory minimum for punishment of an offence charged the court cannot impose a sentence below the statutory minimum, neither can it impose a sentence beyond the statutory maximum. This point was made clear in the case of Badu lias Bukari Vrs. The Republic (1977) GLR 199-204 where the court held at page 203 of the Report as follows; “With respect to the appellant’s impassioned plea for mitigation of sentence, we regret have no power to vary a minimum sentence”. 9 | P a g e From the above analysis of the law, I would agree with the learned counsel for Republic/Appellant that the trial circuit court erred in law when it imposed a sentence of fine instead of a prison term as required by section 269 (2) of Act 30 of criminal offences procedure Act 30 of 1960 as amended, because since the Accused/Respondent pleaded guilty to the offence of causing harm, which is second degree felony which punishment requires custodial sentence which should not exceed 10 years. I would therefore allow the appeal on sentence and substitute therefor 3 months imprisonment to be commenced 12 months after the Accused/Respondent has delivered. (SGD) …………………………………………. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF HIGH COURT) Cay/…