Musah Vrs The Republic [2022] GHAHC 69 (21 December 2022)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON WEDNESDAY THE 21ST DAY OF DECEMBER, 2022 BEFORE HER LADYSHIP JUSTICE DOREEN G. BOAKYE-AGYEI (MRS.) JUSTICE OF THE HIGH COURT ====================================================== ZAKARIA MUSAH -VRS- SUIT NO: E13/12/2023 APPELLANT = THE REPUBLIC = RESPONDENT ==================================================== PARTIES: APPLICANT IN LAWFUL CUSTODY RESPONDENT ABSENT COUNSEL: MR. ELORM FUGAH, ESQ., COUNSEL FOR RESPONDENT - PRESENT MR. MARK ADZANU, ESQ., COUNSEL FOR REPUBLIC ==================================================== JUDGMENT - PRESENT INTRODUCTION This an Appeal against the decision of the Circuit Court, Sogakope on the 17th day of October 2022 before His Honour Isaac Addo Esq. The decision complained about in this instant appeal appears on pages 6 to 8 of the Record of Appeal (ROA) and the Notice of Appeal in accordance with Section 326 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) was filed on the 8th day of November 2022. On the 17th day of October 2022, the Trial Circuit Court Judge found the accused person guilty of the offences contained in the Charge Sheet filed on the 3rd day of October 2022. In this appeal by the Appellant/Convict from the decision of the Circuit Court, the charge for which Appellant ~ 1 ~ was convicted giving rise to this appeal reads as follows: THE CHARGE: DISHONESTLY RECEIVING CONTRARY TO SECTION 147 (1) OF THE CRIMINAL OFFENCES ACT, ACT 29, 1960. PARTICULARS OF OFFENCE ZAKARIA MUSA age 26 (farmer), on 27/09/2022, at Battor- Dordikpoe in the Volta Circuit and within the jurisdiction of this Court, you dishonestly received one Tecno Spark 7 mobile phone value GHc 1,000. 00 at GHc 300.00 the property of Charles Dorbordoe which you know to have been obtained by means of crime to wit stealing. The facts of the case are as follows:- According to the facts presented by Prosecution, Complainant, Charles Dorbordoe is a teacher. Al, Francis Afedo @Capo is a farmer, A2, Zakaria Musah is a scrap dealer and A3, Ikenna Ojinnak is a phone repairer. The complainant is a resident of Tsito near Ho and a native of Battor. Al, A2 and A3 reside in Battor and Mepe respectively. On 23/09/2022, the complainant had arrived at his hometown Battor to attend a meeting over his deceased father. That on 27/09/2022 at about 17.50 hours, the complainant left his Tecno Spark 7 mobile phone valued GH¢1,000.00 on charge in his verandah on a table and left for his father's house to attend the funeral meeting. The complainant returned around 18.40 hours but his said mobile phone was nowhere to be found. That during that period, witnesses in the case who spotted Al unplugging the said mobile phone described him and his residence to the complainant. On 28/09/2022, the complainant with the assistance of other witnesses handed him over to the Aveyime police and made a formal report. In the course of investigations, the Police rearrested Al who was cautioned. Al in his cautioned statement mentioned A2 as his accomplice. That crime scene was visited together with Al and the complainant. A1, further led police to the residence of A2. In the house, A1, who intended to escape from lawful custody took to his heels into a nearby bush in the pair of handcuffs. ~ 2 ~ With the assistance of Constable Jonas Bacha Bunboani the accused was rearrested. A1 sold the phone valued at GHC1,000 to A2, Zakariah at GHC300. In his cautioned statement A2, Zakariah Musah admitted purchasing the Tecno phone from A1 at a bargain of Three Hundred Ghana Cedis (300 GHS). Upon his arrest, A2 was charged with the offence of Dishonest Receiving, contrary to Section 146 of the Criminal Offences Act, 1960, (Act 29). In the course of further investigations, the exhibit mobile phone was retrieved from A2 and same retained for evidential purposes. A2, in his cautioned statement mentioned A3 as the one who flashed out the phone locks and the password of the phone. A3 was also arrested and cautioned. After careful investigations A1, A2 and A3 were charged with the offences as stated on the charge sheet and arraigned before this Honourable Court. APPELLANTS` PLEA AND CONVICTION At the trial, when the Appellant was given the opportunity to plead to the charge of dishonestly receiving leveled against him, he pleaded Guilty simpliciter. The trial Circuit Court Judge then sentenced Appellant as follows:- "A2 will serve a prison term of 24 months". APPELLANT`S PETITION Counsel for Appellant submitted on behalf of Appellant that the sentence of 24 months imprisonment handed to Appellant is harsh taking into consideration that Appellant is a young person aged 26 years and as a "young person", the sentence of 24 months imposed on him will distort his future. It was submitted on behalf of Appellant that being a young person and a first offender who pleaded guilty to the charge simpliciter, he should be given a more lenient prison term of three (3) months. It was also submitted on behalf of Appellant that the trial Circuit Court`s sentence of 24 months imprisonment imposed on Appellant on grounds that the offence of stealing and dishonestly receiving is on the ~ 3 ~ increase in the jurisdiction, is harsh and aimed at the larger society, and not considering the peculiar situation of the Appellant being a young person and a first time offender who pleaded guilty to the charge. Republic/Respondent submits that from the Record of Appeal, it is very evident that the mitigating factors in sentencing the accused persons was not lost on the judge and he took those into consideration. That apart from considering heavily all factors aimed at mitigating the punishment of the accused persons, the sentence imposed on the Appellant was a deterrent one. Counsel refers to the case of KWASHIE & ANOR VRS REPUBLIC [1971] 1 GLR 488, and opines that where the court decides to impose a deterrent sentence, the value of the subject matter of the charge, and the good record of the accused become irrelevant. Thus, in R. V. GOLDSMITH AND OAKEY [1964] CRIM. L. R. 729, C. A. where two police officers appealed against their sentences of four years’ imprisonment each for conspiracy to pervert the course of justice, the court said: “When however, one is giving deterrent sentences, and this was a deterrent sentence, it does not seem to the Court that it is proper to take into consideration the individual circumstances, whether it be record or of service.” Respondent Counsel also submits that the punishment for the offence of dishonestly receiving is synonymous with that of stealing according to the combined effect of Sections 124 and 146 of Act 29 and Section 296 of Act 30. That the sentence imposed on the Appellant by the trial judge, that is twenty-four months, indicates that the mitigating factors were taken into consideration and due to the prevalence of the offences named that is stealing and dishonestly receiving, the trial judge was minded to impose a deterrent sentence on the Appellant hence the 24 months. It is trite law that an appeal is by way of rehearing the case. In the Criminal Appeal case of KWEKU QUAYE @ TOGBE V THE REPUBLIC CRIMINAL APPEAL NO: H2/4/16, ~ 4 ~ the Court was of the opinion that an appeal is by way of re-hearing and by that was meant that the appellate court had the powers to either maintain the conviction and sentence, or set aside and acquit and discharge or increase the sentence. See DEXTER JOHNSON V. THE REPUBLIC [2011] 2 SCGLR 601 Holding (1) and also OSEI KWADJO II V. THE REPUBLIC [2007-2008] 2 SCGLR 1148 at page 1160. Therefore, appeal by way of re- hearing meant that the appellate court was obliged to review the evidence as a whole and come to its own conclusions whether to maintain the conviction and sentence or set aside and acquit and discharge or to increase the sentence. Section 171(3) of the Criminal and Other Offences Act, 1960 (Act 30) provides that “A plea of guilty shall be recorded as nearly as possible in the words used, … and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary”. The effect of this is that if the accused pleads guilty to the charge, the court may proceed to convict him or her on his or her own plea of guilty and pass the appropriate sentence on him or her. – See ISAAC ANIM VRS THE REPUBLIC. The courts make a distinction between a prosecutor failing to offer enough evidence to substantiate a charge and where that obligation has been waived by the accused by his plea of guilty. In REPUBLIC V YIADOM [2001-2002] 1 GLR 558 the court was of the view that “where the person charged, by his conduct admits the charge and by his plea forestalls the prosecution from going ahead to substantiate the charge against him it would not accord with common sense that he is allowed to turn back and say that the charge was not proved against him. A distinction must be made of two scenarios. One is where the prosecution fails to prove a charge against an accused person either because the evidence adduced by them was weak or unreliable, or they could not call material witnesses. The other circumstance is where the duty upon the prosecution to offer proof ~ 5 ~ has been waived by the accused himself by his plea of guilty to the charge. In the latter instance, it is wrong for the appellant to fault the prosecution for not laying the proof of the charge before the court.” In the case of RAHIM IBRAHIM & 3 ORS VRS THE REPUBLIC 2017 CA H2/2/2017, the Court noted that, “In determining whether the accused person at the time of buying the television knew that the 1st accused had dishonestly appropriated the television, the court takes into consideration the circumstances under which the property was sold by the 1st accused and bought by the 2nd accused and the price at which it was bought. Where the price at which the property was bought was disproportionate to the value of the television, the 2nd accused will be presumed to know that the property was a stolen property”. Having read the entire record albeit scanty, in the candid and considered opinion of this Court, the trial Judge rightly noted in the Judgment as follows: BY COURT: In sentencing A1, A2, and A3 the court takes into consideration the fact that they are first time offenders and young men and also pleaded guilty to the charges.' The trial Court rightly noted that Appellant is a first offender and he admitted his guilt simpliciter which is a demonstrated step towards rehabilitation and reformation which are some of the aims of punishing a convicted person. In the candid opinion of the trial Judge however, because of the increase in such cases in the jurisdiction, Appellant was sentenced to serve 24 months’ prison term. Section 296 (5) of the Criminal Procedure Code as Amended by section 5 of Act 261 provides as follows: - “a person convicted of a criminal offence under any of the following sections ~ 6 ~ of the Criminal Offences Act, 1960 (Act 29) that is to say sections 124, 128, 138, 145, 152, 153, 154, 158, 165, 239, 252, 253 and 260 is liable to a term of imprisonment not exceeding twenty-five years.” Also, Section 146 of the Criminal Code, 1960, provides as follows: 'A person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offense punishable under this Chapter commits a criminal offense and is liable to the same punishment as if that person had committed that criminal offense.' Per the above provisions of the Criminal Procedure Act and the Criminal Act, the maximum prison sentence for the offence of Dishonestly Receiving is 25 years just as the substantive offense of stealing would take. It is trite that once the Criminal Procedure Code is not specific on the minimum sentence to be imposed on a person convicted of stealing (Dishonestly Receiving), the discretion is that of the trial Judge who may impose a prison term of one day. In the 2012 Court of Appeal case of DICKSON KWADWO MANU VRS THE REPUBLIC, the court opined that, “I have looked carefully through the record and it is clear that the Tribunal did not advert its mind to the 1992 Constitutional provision under Article 14 clause 6 thereof; neither did it take into consideration any mitigating factor at all. This is a serious omission in the performance of a duty of a Court that has been given the discretionary power to act fairly and reasonably and complied with mandatory requirements imposed by law. In 2016, the Court of Appeal in the case of YAW AMOABENG VRS THE REPUBLIC, was of the opinion that “A plea of guilty is one of the factors that are taken into consideration as a mitigating factor in criminal justice administration, and we are of the considered opinion that if the trial High Court Judge had taken into consideration the ~ 7 ~ plea of guilty by the accused person, he would not have imposed a term of 30 years imprisonment on the accused person.” In the earlier case of DARKURUGU VRS REP [1989-90] 1 GLR 308, the court touched on the principle guiding the courts in sentencing first time offenders. Also Taylor J. (as he then was) said in BADU V. THE REPUBLIC, HIGH COURT, 24 JULY 1970, DIGESTED IN (1970) C. C. 91. “In my view when young men have their first brush with the law, it is expedient in the interest of the reformative aspect of punishment that the courts deal leniently with the offenders. If this is not done and young men on the very first occasion they appear in court are sent into prison, it will be impossible to obtain reformation. They will come in contact with hardened criminals and they may be forever lost to decent society.” Then in the case of FRIMPONG ALIAS IBOMAN V THE REPUBLIC [2012] 1 SCGLR297 at 328 it was stated as follows: "It is also generally accepted that a first 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”. The question of sentence is a matter of discretion with the Court as well as its statutory jurisdiction. Similarly, the determination of the length of sentence is also a matter of discretion for the Trial Court. However, the courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. In KWASHIE & ANOR VRS REPUBLIC [1971] 1 GLR 488, the court said, “A sentence must be intended to serve a purpose, and as Hilbery J. said in the Blake case at p. 383: ~ 8 ~ “This sentence [of 42 years’ imprisonment for spying] had a threefold purpose. It was intended to be punitive, it was designed and calculated to deter others, and it was meant to be a safeguard to this country.” In KAMIL VRS THE REPUBLIC 2011 30 G. M. J 1 SC, it was held that:“ Sentencing is a matter entirely within the discretion of the trial judge or the Appellate Court and two factors to be considered in determining the length of sentence include mitigating and aggravating circumstances such as the extreme youth and good character” In APALOO VRS THE REPUBLIC (1975) 1 GLR 156 at 190, it was stated that: “The principles upon which this court acts on an appeal against sentence are well settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence, The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case or that the sentence is wrong in principle”. In the case of ASAAH ALIAS ASI VRS THE REPUBLIC 1978 1 GLR 1-4, the Court held allowing the appeal as follows: “In dealing with an appeal against sentence, an appellate court had to find out whether there were any mitigating factors which the trial judge took or failed to take into consideration. If the record revealed that he took all the mitigating factors into consideration before imposing the sentence, then his discretion could be said to have been properly exercised, and in the absence of any special circumstances, an appellate court would be slow to interfere with such sentence. On the other hand if the record did not reveal that the trial judge took any such mitigating circumstances into consideration, then an appellate court would find out whether the mitigating factors were such that if the trial judge had adverted his mind to them, he would probably not have imposed such a severe sentence. ~ 9 ~ 2. Since the appellant in this case was not represented by counsel at the trial, it was up to the trial judge to examine the facts himself and anything connected thereto and decide for himself whether the case warranted any lenient consideration. The record however did not reveal that any such examination was carried out in respect of the sentence. Consequently the appeal against sentence would be allowed” Generally, no obligation is cast on the Trial Court to give reasons for sentences it imposes, there are however three main exceptions namely: i. Where a statute requires that the reasons should be given for the sentence. ii. Where the sentence is extremely high or quite close to the maximum limit and iii. Where the sentence is at the minimum or comes very close to the minimum limit and this discloses exception of leniency, In KAMIL V THE REPUBLIC (2011) 1 SCGLR 302, the court held that:- "where an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country.” Then in APALOO AND OTHERS VRS THE REPUBLIC 1975 supra it was held per holding 12 of the headnote that: “grave offences usually called for deterrent sentences. But the general principle was that a sentence of imprisonment, even though intended specifically as general deterrence, must not be excessive in relation to the facts of the offence. Having regard to all the circumstances, the sentences of the first appellant to fifteen years imprisonment was inordinately excessive and ought to be reduced to ten years imprisonment” Whilst the rules offer the appellate court the duty it bears, it prohibits it from overturning a judgment unless that judgment has occasioned a substantial miscarriage of justice. Section 31(1) of the Courts Act, 1993, (Act 459) which is subject to subsection (2), provides ~ 10 ~ that no verdict or conviction or acquittal shall be set aside on appeal on the ground that such verdict or conviction or acquittal cannot be supported having regard to the evidence or that it is unreasonable or that the judgment is wrong on a question of law or fact unless the verdict, conviction or acquittal occasioned substantial miscarriage of justice and in any other case the appeal should be dismissed. I have examined the record before me and looked at aggravating or mitigating circumstances in this case. I am of the considered opinion that the Learned Trial Judge exercised his discretion appropriately taking into consideration the age of the Appellant and his status as a first rime offender. From the facts as presented, he was named as an accomplice by the one who actually stole the phone and the punishment is the same for both sets of offences. The Court will however disturb the sentence as imposed as same is excessive in the candid opinion of the Court, the offense not being grave to call for a deterrent sentence. A sentence of imprisonment, even though intended specifically as general deterrence, must not be excessive in relation to the facts of the offence. For that reason, the appeal against sentence succeeds as the phone was recovered and restored to the owner accordingly. Having therefore considered the matter in its entirety the Court set aside the earlier sentence of 24 months and sentences Appellant to 12 months accordingly starting from the date the original sentence was passed. H/L JUSTICE DOREEN G. BOAKYE-AGYEI MRS. ESQ. JUSTICE OF THE HIGH COURT CASES CITED FRIMPONG ALIAS IBOMAN V THE REPUBLIC [2012] 1 SCGLR 297 KAMIL VRS THE REPUBLIC 2011 30 G. M. J 1 SC, APALOO VRS THE REPUBLIC 1975) 1 GLR 156 at 90 ASAAH ALIAS ASI VRS THE REPUBLIC 1978 1 GLR 1-4 ~ 11 ~ RAHIM IBRAHIM & 3 ORS VRS THE REP 2017 CA H2/2/2017, KWASHIE & ANOR VRS REPUBLIC [1971] 1 GLR 488, R. V. GOLDSMITH AND OAKEY [1964] CRIM. L. R. 729, C. A. KWEKU QUAYE @ TOGBE V REP CRIMINAL APPEAL NO: H2/4/16 DEXTER JOHNSON V. THE REPUBLIC [2011] 2 SCGLR 601 OSEI KWADJO II V. THE REPUBLIC [2007-2008] 2 SCGLR 1148. ISAAC ANIM VRS REPUBLIC. REPUBLIC V YIADOM [2001-2002] 1 GLR 558 DICKSON KWADWO MANU VRS REPUBLIC YAW AMOABENG VRS REPUBLIC, DARKURUGU VRS REP [1989-90] 1 GLR 308 BADU V. THE REPUBLIC, HIGH COURT, 24 JULY 1970, DIGESTED IN (1970) C. C. 91. KWASHIE & ANOR VRS REPUBLIC [1971] 1 GLR 488, ~ 12 ~