Adjei Vrs Republic [2022] GHAHC 52 (12 December 2022)

IN THE HIGH COURT HELD IN CAPE COAST ON TUESDAY, THE 12TH DAY OF DECEMBER, 2022, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: F22/05/2023 ISHMAEL ADJEI AKA AKWASI YAAFO ----------------- APPELLANT VS. THE REPUBLIC ----------------- RESPONDENT DANIEL ARTHUR FOR THE APPELLANT RESPONDENT UNREPRESENTED BY COUNSEL JUDGMENT The appellant was arraigned before the District Court Nyankomasi Ahenkro on the charges of Conspiracy to commit crime namely Defrauding by False Pretences contrary to section 23(1) and 131 of the Criminal Offences Act, 1960 (Act 29) and the substantive offence of Defrauding by False Pretences contrary to section 131 of the same Act. The facts of the case as presented by the prosecution are the complainants Mercy Akyea –Adjei aka Akua is a farmer aged 32 years and Emmanuel Appiah a businessman aged 23 years. They both reside at Assin Dawomako. The appellant aged 28 years is also a businessman and a carpenter deals in second hand clothes. He resides at Assin Foso Pumpside. On 29th December 2021 one of the complainants Mercy Akyea Adjei received a phone call on her MTN No 0599585079 from a user of Vodafone NO. 0204935273 indicating that the user was an official of MTN Network working at their Head Office in Accra. The caller told her that a customer had made a wrongfully transferred some money to her mobile money account and due to that her SIM card had been blocked. The caller asked her to go to a nearby merchant shop for guideline and reactivation of the SIM card. Thereafter she went to Emmanuel Appiah’s merchant shop where the numbers for the reactivation of her SIM card were given. Another MTN number 055220565 bearing the name Mary Enstie was given to the merchant to dial together with some code numbers. After several conversations a sum of GHC3.080.00 was withdrawn from the Merchant. A report was made to the police at Assin Anyinabrim where the court placed an order on the said Vodafone number and MTN Network Services for the full details of the users of the said numbers. The appellant’s name came up as the one using the Vodafone number and his accomplice Mary Entsie too was given as the user of the MTN number 0552205651. The police traced the appellant and arrested him. After investigations, the police charged him with the offences above. At the trial, the appellant pleaded guilty with explanation to the 1st count and on the 2nd count he pleaded guilty simpliciter. The Judge recorded the explanation but ruled that the explanation given by the appellant confirmed his guilt. The court therefore convicted him on his own plea of guilty and sentenced him to 18 years IHL on each count to run concurrently. It ought to be noted that the judge imposed the sentence after he gave the appellant the opportunity to put in a plea in mitigation of sentence. Being dissatisfied with the conviction and sentence and pursuant to the leave of court, on 25th October 2022 the appellant was granted an extension of time to file an appeal. The appellant filed the petition of appeal through his counsel with the following grounds; a) That the learned trial judge erred by convicting the Appellant on his plea of guilty when the record shows that he was not informed of the import of pleading guilty b) That the sentence of 18months IHL is excessive having regard to the fact that the Appellant is a first time offender and that the appellant pleaded guilty to the offence thereby saving the court time from embarking on lengthy trial. c) That further grounds of appeal would be filed upon receipt of the records of appeal. He further prayed for the conviction and sentence to be set aside or in the unlikely event that the conviction is sustainable the sentence should be reduced drastically for the Appellant. However, in his address to the court counsel for the appellant abandoned the first ground of appeal and only addressed the court on the second ground. This court holds the view that it was an honourable thing for counsel to do so because it is quite obvious that the appellant understood the charges and was given ample opportunity to even make a plea in mitigation of sentence which has been clearly recorded on the record. Counsel for the appellant submits that per the record, the appellant had clearly shown signs of remorse and pleaded for forgiveness from the court. Additionally the record revealed that the appellant was a first time offender. He relied on the case of Frimpong alias Iboman v The Republic 2012 1SGLR 297 where the Supreme Court stated as follows; “It is generally accepted that a first time offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law abiding citizen, That is why it is desirable for a first offender to be treated differently when a court considers sentence to be imposed on a first offender vis a vis a second or habitual offender.” He further submitted that the appellant did not deny liability but admitted his wrongdoing thereby he saved the court’s time from going through a trial. He also refunded the amount depicted in the charge sheet and was also ordered to pay an additional amount of GHC2000 which the prosecution termed as additional expenses. He noted that the appellant having shown remorse and asked for the complainant’s forgiveness, the ends of justice would be served if the sentence is reduced in favour of the appellant. It is trite that sentencing is at the discretion of the court as long as it falls within the statutory limit imposed by law. Under Article 296 of the Constitution 1992, when discretionary power is conferred on a person, he is enjoined to exercise it fairly and candidly in accordance with due process and devoid of any arbitrariness or personal dislike. See the case of VICTOR OCLOO VS THE REPUBLIC [2014] 69 G. M. J. 173 In the cases of Kwashie vs The Republic [1971] I GLR CA 488, Kamil vs The Republic [2011] 1 SCGLR 300, and Gorman vs The Republic, the principles to be considered by a court in sentencing are as follows; • The seriousness of the offence. • The degree of revulsion felt by law-abiding citizens for a particular crime. • The premeditation with which the criminal plan was executed. • The prevalence of the crime within the particular society or the country where the offence took place. • The sudden increase in the incidence of the particular crime. In this case the learned trial magistrate before imposing the sentence on the appellant stated thus; “The accused is a first time offender and a young man of 28 years old. He has refunded a substantial part of the amount involved in the defrauding of the complainant. Based on these factors the court would have been lenient but for the fact that this form of defrauding by false pretence that is mobile money fraud, has become rampant in the Central Region of Ghana especially, the Assin area.” He went on to state that in order to stamp out the activities from the area and to serve as a deterrence to those who are still in that mobile money fraud business, he was of the opinion that the appellant deserved a custodial sentence. Indeed, I agree with the learned trial magistrate when he imposed a custodial sentence on the appellant taking into account the prevalence of the offence in the area to serve as a deterrent to others. In fact this court takes judicial notice of the prevalence of the said offence not only in the Assin area but in the whole of Ghana. Many innocent Ghanaians have fallen victim to this kind of fraud including both young and old. It is obvious that the learned magistrate did not mention that the early plea of guilty was a mitigating factor neither did he say that the appellant had also shown remorse, but it is clear that the trial judge was of the view that the appellant deserved a deterrent sentence to serve as a warning to others who would want to engage in such conduct and deprive innocent citizens of their hard-earned money especially in this hard economic times. It ought to be noted that the trial magistrate was within the law when he imposed the sentence because the offence carries a maximum sentence of 25 years. In Haruna vs The Republic 1978 GLR 189 Taylor J as he then was stated as follows; “In awarding sentence, particularly when the court sets out to award a deterrent sentence, which is an abnormal sentence, all the circumstances of the case must be considered. If there are circumstances tending to mitigate the application of the deterrent principle, then reasons must be given why those circumstances must be ignored if a deterrent sentence is imposed. If that is not done, then that discretion has not been properly exercised and an appellate court can interfere with the said exercise of discretion. If however, all the circumstances relevant to the question of the appropriate sentence have been adequately considered, then since it is a matter of discretion, the exercise of discretion by a lower court ought not to be impugned by an appellate court.” This appellate court is also of the view that the appellant deserves a deterrent sentence however, there must be a balancing act between deterring others and giving the opportunity to a deserving appellant to reform especially where it is noted that the appellant is a young man and still has many years or his life ahead of him. Clearly, as already stated, the trial judge was right in imposing a custodial sentence but this court is of the opinion that taking into consideration the fact that the appellant did not waste the court’s time and had also refunded a substantial portion of the proceeds he got from his crime, I am persuaded to hold that the sentence ought to be reduced because it is excessive in the circumstances of the case. Quite apart from that I agree with counsel for the appellant that he had also shown remorse per the record and asked the court to be lenient with him. He also asked for forgiveness. I also take the view that in as much as 18 months IHL is a long time to serve as a deterrent to others, a sentence of about 12 months IHL will also serve the same purpose but at the same time give the appellant the opportunity to learn his lessons and apply them in reforming himself when he finally leaves prison. This court takes judicial notice of the deteriorating conditions in which prisoners live in this country and is of the opinion that 12months IHL is long enough to deter others but also affords the appellant the opportunity to reflect and reform. I shall therefore in the circumstances of this case reduce the sentence to 12months IHL. Consequently, the second ground of appeal is hereby allowed. The sentence of 18 months IHL is hereby set aside and in its place this court hereby imposes a sentence of 12 months IHL on each count to run concurrently. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST