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Criminal Law - Narcotics Act.
236 1990 P.N.D.C.L - Section 1
(1) of the Narcotic Drugs
(Control, Enforcement and
Sanctions) - Article 14 (6) of
the 1992 Constitution - Whether
the sentence was
harsh and was unreasonable and
occasioned substantial
miscarriage of justice.
since the sentence did not take
effect from the date of offence.
HEADNOTES
The facts of the case as
presented by the Prosecution to
the Greater Accra Regional
Tribunal were that: The
Narcotics Control Board of Ghana
received information from Her
Majesty’s Customs in the United
Kingdom that they had
intercepted certain narcotic
drugs concealed in some food
items exported from Ghana. Among
the drugs intercepted were 63
kilograms of Indian hemp
(Cannabis) and 2.8 kilograms of
cocaine and several others.
Investigations led to the arrest
of the Shipping agent who
shipped the items in which the
drugs were concealed. He was
called Emmanuel Adjavor (alias)
J. K. Upon his arrest, he
admitted shipping those items
but claimed he did so for and on
behalf of the actual exporter by
name Henry KwakuOwusu, the
appellant herein.He therefore
led the police to arrest the
appellant on 24th
July 2005. After investigations,
the appellant was charged with
the offences under the two
counts before the Greater Accra
Regional Tribunal on 13th
December 2006. He was tried,
convicted and sentenced
accordingly on 26th
November 2008. Meanwhile, the
trial Tribunal did not expressly
state in its judgment of 26th
November 2008 that it did take
into account the period of three
years four months that he had
been in custody in deciding on
the fourteen year jail term, as
provided under Article 14 (6) of
the 1992 Constitution
HELD -
We
therefore hold the view that
appellant has suffered enough in
confinement for his
pole-vaulting attempt to
increasing his finances through
illegal means, instead of
embarking on a legal path to
achieving the same purpose. We
shall therefore interfere with
the sentence of fourteen (14)
years IHL on each of the two
counts passed by the trial
tribunal and affirmed by the
Court of Appeal, and in its
place substitute it with a
concurrent sentence of ten (10)
years IHL on each of the two
counts to run from the date of
the original sentences. We shall
take this opportunity to repeat
our admonition to all trial
courts to spare appellate courts
the headache of having to
interfere in the legitimate
exercise of their discretion in
the passing or imposition of
sentences on convicted criminals
by complying strictly with the
provisions of Article 14 (6) of
the 1992 Constitution as
expressly stated by this Court
in the three cases cited
supra.Appeal against sentence is
accordingly upheld
STATUTES REFERRED TO IN JUDGMENT
Narcotic Drugs (Control,
Enforcement and Sanctions) Act,
1990 [P.N.D.C.L. 236]
1992 Constitution Article 14 (6)
CASES REFERRED TO IN JUDGMENT
OJO v THE REPUBLIC [1999-2000] 1
GLR 169
ABDILMASIH v AMARH [1972] 2 GLR
414
IN
RE ASERE STOOL; NIKOIOLAIAMONTIA
IV (Substituted by TAFOAMONI II)
v AKOTIAOWORSIKA III
(Substituted by LARYEAAYIKU III
[2005-2006] SCGLR 637
BOSSO v THE REPUBLIC [2009]
SCGLR 420
FRIMPONG ‘alias’ IBOMAN v THE
REPUBLIC [2012] 1 SCGLR 297
TUAKWA v BOSOM [2001-2002] SCGLR
61;
BROWN v QUASHIGAH [2003-2004]
SCGLR 930;
SARKODIE v FKA CO. LTD [2009]
SCGLR 65;
ACKAH v PERGAH TRANSPORT LTD &
Others [2010] SCGLR 728;
APALOO v THE REPUBLIC [1975] I
GLR 156
DEXTER JOHNSON v THE REPUBLIC
[2011] 2 SCGLR 601
APALOO& Others v THE REPUBLIC
[1975] 1 GLR 156
KWASHIE v THE REPUBLIC [1971] 1
GLR 488 (C. A.)
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:
COUNSEL
KWAKU AFRIFAH NSIAH ASARE JNR,
ESQ. FOR THE APPELLANT.
MALIKE WOANYAH-DEY(MRS) ESQ.
(SENIOR STATE ATTORNEY) FOR THE
REPUBLIC.
----------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
APPAU, JSC:
Section 1 (1) of the Narcotic
Drugs (Control, Enforcement and
Sanctions) Act, 1990 [P.N.D.C.L.
236] provides:“A person
who imports or exports a
narcotic drug without a licence
issued by the Minister
responsible for Health for that
purpose commits an offence and
on conviction is liable to a
term of imprisonment of not less
than ten years”.
Article 14 (6) of the 1992
Constitution of the 4thRepublic
of Ghana also provides:“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”.
On
the 26th day of
November 2008, the appellant
herein, Henry KwakuOwusu, was
tried and convicted by the
Greater Accra Regional Tribunal
on two counts of exportation of
narcotic drugs without lawful
authority contrary to section 1
(1) of the Narcotic Drugs
(Control, Enforcement and
Sanctions) Law, P.N.D.C. Law 236
of 1990. He was consequently
sentenced to a prison term of
fourteen (14) years with hard
labour on each of the two counts
to run concurrently.
Before his conviction, he had
served a period of three (3)
years four (4) months in lawful
custody as he was never granted
bail upon his arrest on 24th
July 2005 up to the completion
of the trial. Meanwhile, the
trial Tribunal did not expressly
state in its judgment of 26th
November 2008 that it did take
into account the period of three
years four months that he had
been in custody in deciding on
the fourteen year jail term, as
provided under Article 14 (6) of
the 1992 Constitution referred
to above.This failure by the
trial tribunal to explicitly
state that it did take into
consideration this period of
prior incarceration before
deciding on the 14 year jail
sentence and the silence of the
Court of Appeal on same when it
dismissed the appellant’s appeal
before it, is the crux of the
appeal before us.
FACTS
The facts of the case as
presented by the Prosecution to
the Greater Accra Regional
Tribunal were that: The
Narcotics Control Board of Ghana
received information from Her
Majesty’s Customs in the United
Kingdom that they had
intercepted certain narcotic
drugs concealed in some food
items exported from Ghana. Among
the drugs intercepted were 63
kilograms of Indian hemp
(Cannabis) and 2.8 kilograms of
cocaine and several others.
The report explained that on 9th
May 2005, a container
DVRU4083109 with seal No.
AX803079, containing cocaine
concealed in paper cartons used
to export food items, was
intercepted at Felixtowe Seaport
in London. Again, on 20th
July 2005, another 144 boxes of
fresh vegetables airlifted from
Kotoka International Airport by
ALITALIA Air to Heathrow Airport
with Airway Bill No.
005-5551671491, was also found
with cannabis concealed in the
paper cartons used to export the
items. Her Majesty’s Customs,
U.K. therefore requested for
investigations to be conducted
into the matter by the Ghanaian
authorities.
Investigations led to the arrest
of the Shipping agent who
shipped the items in which the
drugs were concealed. He was
called Emmanuel Adjavor (alias)
J. K. Upon his arrest, he
admitted shipping those items
but claimed he did so for and on
behalf of the actual exporter by
name Henry KwakuOwusu, the
appellant herein.He therefore
led the police to arrest the
appellant on 24th
July 2005. After investigations,
the appellant was charged with
the offences under the two
counts before the Greater Accra
Regional Tribunal on 13th
December 2006. He was tried,
convicted and sentenced
accordingly on 26th
November 2008.
APPEAL BEFORE THE COURT OF
APPEAL
The appellant was not satisfied
with his conviction and sentence
by the Greater Accra Regional
Tribunal so he filed a Notice of
Appeal against same at the Court
of Appeal. The grounds of appeal
he canvassed before the Court of
Appeal were five. They were:
i.
The judgment cannot be supported
having regard to the evidence
adduced at the trial.
ii.
The Greater Accra Regional
Tribunal erred whenit admitted
into evidence some documents
tendered by the prosecution.
iii.
The evidence relied upon by the
Greater Accra Regional Tribunal
to convict appellant was clearly
inadmissible.
iv.
The Regional Tribunal erred when
it held that the appellant did
not adduce evidence to indicate
which address Emmanuel Adjavor
(J.K.) used in exporting the
goods.
v.
The judgment of the Regional
Tribunal is unreasonable thereby
resulting in a miscarriage of
justice to the
accused/appellant.
The Court of Appeal dismissed
the appellant’s appeal against
both conviction and sentence on
the 12th day of May
2010 and affirmed the judgment
of the trial Tribunal.
On
the appeal against conviction,
this was what the Court of
Appeal said inter alia in
its judgment delivered by
Gyaesayor, J.A.: “In the
instant case, the trial court
found the appellant was not a
credible witness having regard
to his testimony in court and
the statement he made to the
police. The trial court listened
to P.W.1 the police investigator
and found that his evidence was
pivotal to the resolution of the
case and also found that
appellant did not cause the
items to be exported for one Ras
and concluded that the appellant
was the owner of the items in
which the prohibited drugs were
found. There is no basis for
this court to tamper with the
finding of fact made by the
trial court.
Clearly then, the tribunal found
sufficient evidence requiring no
corroboration to satisfy the
conviction of the appellant and
it rightly did so. This main
ground of appeal that the
judgment is against the weight
of evidence fails…”
With regard to the appeal
against sentence, the appellate
court stated as follows at page
16 to 17 of its judgment, which
appears at pages 375 and 376 of
the record of appeal (ROA):
“Appellant also appealed against
the sentence on the grounds that
it is harsh. The minimum
sentence is ten (10) years IHL
and the court was fully aware of
this before it passed sentence.
See P. Crentsil v Crentsil
[1962] 2 GLR 171 where the court
referring to Blunt v Blunt
[1943] AC 517, quoted with
approval the dictum of Viscount
Simon, L.C. ; ‘An appeal
against the exercise of the
court’s discretion can only
succeed on the ground that the
discretion was exercised on
wrong or inadequate materials or
it can be shown that the court
acted under a misapprehension of
fact, in that it either gave
weight to irrelevant or unproved
matters or omitted to take
relevant matter into account’
The trial court took into
account the fact that by his
action, appellant sought to
implicate an innocent person
like Mr Nartey of Oko Ventures,
the method by which the export
was done and imposed the 14
years. To me, his discretion
should not be disturbed and the
sentence be made to stand. In
conclusion, the appeal is
dismissed”.
APPELLANT’S APPEAL TO THIS COURT
On
20th May 2010, the
appellant invoked the appellate
jurisdiction of this Court with
the filing of a Notice of
Criminal Appeal. The grounds of
appeal were three and they were:
(i)
The dismissal by the Court of
Appeal of appellant’s appeal was
unreasonable and occasioned
appellant a substantial
miscarriage of justice.
(ii)
That the Court of Appeal failed
to properly evaluate the
evidence which formed the basis
for the conviction of Appellant
by the trial court.
(iii)
That the Court of Appeal did not
consider the objections raised
by appellant as to the
admissibility of documents
tendered in evidence by the
prosecution.
When the appellant made his
first appearance before this
Court to pursue his appeal, his
counsel sought leave of the
Court to amend his Notice of
Appeal filed on 20th
May 2010 by the addition of a
further ground of appeal. This
Court graciously granted his
prayer on 12th May
2015. The Appellant therefore,
on the 27th day of
May 2015, filed an amended
Notice of Appeal in which he
maintained the original grounds
of appeal and added a fourth
ground that read as follows;
(iv)
The sentence did not take effect
from the date of offence.
In
his Statement of Case which he
tagged as Written Submissions
filed on the 11th of
September 2015, the appellant
intimated to this Court his
intention to abandon the
original grounds of appeal and
to argue only the last ground
which he filed pursuant to leave
granted by this Court. This was
what he said in paragraph 2;
page 1 of his Statement of Case;
“My Lords, it is proposed in
this appeal to briefly recount
the facts of this case. After
stating the facts, we shall
proceed to review briefly the
evidence adduced by the
prosecution at the trial to
prove the facts recounted by the
prosecution to the trial court
as forming the basis for
prosecuting appellant in
demonstrating to this Honourable
Court that the evidence could
not have supported the charge.
Be that as it may, we shall
then proceed to argue the last
ground of appeal which was added
to our grounds of appeal per our
amended notice of appeal filed
on the 27th day of
May 2015 with leave of this
honourable Court Coram Georgina
Theodora Wood, C.J., Ansah,
Dotse, Anin-Yeboah and Benin,
JJSC on the 12th day
of May 2015. My Lords, this is
because we intend to abandon all
our other grounds of appeal, the
reason being that the last
ground of appeal renders moot
all the previous others”. {Emphasis added}
APPELLANTS SUBMISSIONS BEFORE
THIS COURT ON HIS LAST GROUND OF
APPEAL
Notwithstanding the fact that
counsel for the appellant said
he would abandon the original
grounds of appeal and argue the
last of the grounds stated in
his amended notice of appeal, he
veered off course in his written
submissions and wasted precious
time on the abandoned grounds,
hoping he could convince this
Court that the conviction of the
appellant by the trial tribunal
was wrong. He, however, regained
his consciousness and came on
course with the following
statement as a preface to his
argument in support of the last
ground:
“My Lords, we may not want to
bother you any further with
comments on the evidence as same
may at any rate, given our
decision to abandon the other
grounds of appeal, not be very
material for the prosecution of
the instant appeal. We shall
proceed to look at the judgment
of the court below and argue our
sole ground of appeal under the
circumstances”.
After the above preface,
appellant began his arguments in
support of his sole ground of
appeal. Though the last ground
of appeal, which Appellant
called his sole ground of appeal
as stated in the amended notice
of appeal was that; “The
sentence did not take effect
from the date of offence”,
the ground he intended to argue
and which he actually argued in
his written submission was;
“The sentence did not take into
account the time the appellant
spent in lawful custody before
his conviction”.
We
wish to emphasize that these two
grounds of appeal re-called
supra are not and cannot mean
the same.The fact is that the
law does not permit any judgment
to take retrospective effect.
Section 315 (2) of Act 30; i.e.
Criminal and Other Offences
(Procedure) Act, 1960 provides:
“A sentence of
imprisonment shall commence on
and include the whole of the day
on which it was pronounced”.
As a result, no sentence can
take effect from the date of the
offence or the date of arrest of
the accused.
As
Benin, J.A. (as he then was),
now Benin JSC, stated in the
case of OJO v THE REPUBLIC
[1999-2000] 1 GLR 169 @p. 172
-(C.A.), Section 315 (2)
does not entitle a court to
back-date a sentence. He then
continued; “Thus a court
cannot impose a sentence today
and say it should take effect
from yesterday. Article 14 (6)
of the Constitution only enjoins
a court before sentencing a
convicted person to take into
account the period he has spent
in lawful custody. So that if
the court is mindful to impose
six months and the convict has
spent two months in lawful
custody, the court has to impose
four months to start from the
date of conviction. The court is
not entitled to impose six
months and then say it should
start from the date the convict
was taken into lawful custody,
i.e. two months back”.
The last ground of appeal as
worded in appellant’s amended
notice of appeal filed on 27th
May 2015 was therefore not
appropriate since he could not
have succeeded on such a ground.
However, having properly
re-worded the ground in his
written submissions filed on 11th
September 2015, this Court shall
overlook that error and take it
that same has been amended;
bearing in mind that it is the
substance of the arguments
proffered that matters but not
the form in which the ground was
formulated. Modern notions of
justice require that a court
should do substantial justice
between the parties in
litigation unhampered by
technical procedural rules. The
courts are therefore generally
less concerned about defects in
form than defects in substance.
See the dictum of Apaloo, J.A.
(as he then was) in
ABDILMASIH v AMARH [1972] 2 GLR
414 @ 429; also IN RE
ASERE STOOL; NIKOIOLAIAMONTIA IV
(Substituted by TAFOAMONI II) v
AKOTIAOWORSIKA III (Substituted
by LARYEAAYIKU III [2005-2006]
SCGLR 637 @ 654-656.
Arguing in support of the sole
ground that the sentence did not
take into account the time the
Appellant spent in lawful
custody before his conviction,
counsel for the Appellant
contended that a trial court has
no discretion whatsoever in
complying with the
constitutional provision which
requires that in passing
sentence on a convicted person,
a court is bound to take into
account the time the convict had
been in lawful custody pending
his/her trial.Counsel referred
to the Court of Appeal case of
OJO v THE REPUBLIC
referred to supra and the
decisions of this Court in
BOSSO v THE REPUBLIC [2009]
SCGLR 420 per Wood, C.J.andFRIMPONG
‘alias’ IBOMAN v THE REPUBLIC
[2012] 1 SCGLR 297per Dotse,
JSC, in support of his
arguments.
According to the appellant,
notwithstanding the fact that
the appellant had been in
continuous lawful custody from
24th July 2005 till
his sentence on 26th
November 2008, the Regional
Tribunal in sentencing him to a
prison term of fourteen (14)
years IHL, did not comply with
the decisions of this Court in
the Bosso and Iboman
cases. Again, the Court of
Appeal was silent on this
constitutional provision when
the matter went before it on
appeal. Counsel therefore prayed
this Court to revisit
appellant’s sentence of 14 years
by taking into account the
period he had been in custody
before the sentence was imposed
on him. He was of the view that
the number of years appellant
has already served in custody is
enough to order for his
immediate release.
RESPONSE BY THE LEARNED STATE
ATTORNEY FOR THE REPUBLIC
The learned Chief State Attorney
in her written response to that
of counsel for the appellant on
his appeal against sentence,
conceded that both the trial
tribunal and the Court of Appeal
erred when they failed to abide
or comply with article 14 (6) of
the 1992 Constitution. She
agreed that the trial tribunal
should have expressly stated in
its judgment that it did take
into consideration the period
the appellant had been in
custody as laid down by the
authorities at the time it was
passing sentence on him.
However, as to whether the
appellant must be released in
view of the fact that he would
have served a statutory period
of fifteen (15) years by July
2015, she would not comment on
same but would leave it to the
discretion of this honourable
Court.
DETERMINATION OF THE MERITS OF
THE APPEAL
The authorities are legion that
an appeal; be it a criminal
appeal or a civil appeal, is by
way of re-hearing. See the cases
of: TUAKWA v BOSOM [2001-2002]
SCGLR 61; BROWN v QUASHIGAH
[2003-2004] SCGLR 930; SARKODIE
v FKA CO. LTD [2009] SCGLR 65;
ACKAH v PERGAH TRANSPORT LTD &
Others [2010] SCGLR 728; APALOO
v THE REPUBLIC [1975] I GLR 156@
169; DEXTER JOHNSON v THE
REPUBLIC [2011] 2 SCGLR 601 @
669; FRIMPONG @ IBOMAN v THE
REPUBLIC (cited supra); etc.
What this statement means in the
context of a criminal appeal is
well stated by my respected
brother Dotse, JSC in the
Dexter Johnson case cited
supra at page 669-670:“What
is therefore meant by an appeal
being by way of a re-hearing is
that the appellate court has the
powers to either maintain the
conviction and sentence, or set
it aside and acquit and
discharge, or increase the
sentence. If the above
contention is correct, which I
think is, then I am of the
considered view that it behoves
on this Court to consider in its
entirety the appeal record
before it and substitute itself
as the trial court and the Court
of Appeal…”
The prayer of the appellant in
this appeal is that both the
trial tribunal and the Court of
Appeal did not advert their
minds to the constitutional
provision that required the
trial court to take into account
the number of years he had been
in lawful custody prior to his
sentence.The law under which he
was charged; i.e. section 1 (1)
of P. N. D. C. Law 236
prescribes the minimum penalty
for persons convicted under that
offence but prescribes no
maximum. That is left at large
subject to the discretion of the
trial court. It was in the
exercise of that discretion that
the trial tribunal settled on
the fourteen (14) years, which
the appellant, in his second
appeal to this Court after his
first appeal to the Court of
Appeal had eluded him, has
called into question subject to
the failure of the two lower
courts to comply with the
provisions under article 14 (6)
of the 1992 Constitution. This
provision has been quoted in
extenso supra and we repeat same
here;
“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”.
The contention of the appellant
is that he was in lawful custody
for a period of three (3) years,
four (4) months prior to his
incarceration for another
fourteen (14) years; meaning he
has been sentenced to a total of
seventeen (17) years, four (4)
months but not fourteen (14)
years as recorded. He therefore
wants the intervention of this
Court as a result of this
constitutional aberration
committed by both the trial
court and the Court of Appeal.
What are the principles upon
which this Court acts on an
appeal against sentence? The
answer lies in the dictum of Azu
Crabbe, C.J. in the case of
APALOO& Others v THE REPUBLIC
[1975] 1 GLR 156 @ 190-191 – C.A.
He wrote; “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”.
Though the above decision was
that of the Ordinary Bench of
the Court of Appeal, which was
the highest court of the land at
the time by virtue of the Courts
(Amendment) Decree, 1972 [NRCD
101], which replaced the Supreme
Court established by the 1969
Constitution with the Full Bench
of the Court of Appeal, it is of
persuasive force as it espoused
the correct position of the law.
In
that case; i.e. the Apaloo
case, the first appellant
bought a printing machine and
employed certain persons
including someone who was
well-known for his criminal
record in relation to forged
currency notes, to use it in
printing forged currency notes
for him at a secret place in a
certain village. When he
apprehended danger of being
found out, the first appellant
caused the removal of the
printing machine to his offices
in Accra where it was installed
in a room and the printing of
the currency continued. On a
further apprehension of being
implicated, the first appellant
caused his driver to take away
from his offices, some cartons
which were later found to
contain inter alia 21 sensitized
aluminium plates for printing
currency notes. When the offices
of the first appellant were
being searched by the military
police, the first appellant told
various lies about the printing
machine.
The first appellant was
therefore charged with five
offences under the Currency Act,
1964 [Act 242], including
possession of implements for
making notes contrary to section
19 (a) (ii) and abetment of
forgery contrary to section 32
of the Act. The other five
appellants, who wilfully and
knowingly participated in the
criminal currency business
promoted by the first appellant,
were also charged on separate
counts with offences under the
Act. All the appellants were
found guilty and convicted
accordingly.
The first appellant was
sentenced to fifteen (15) years
imprisonment with hard labour
while the others received
various terms lower than that of
the first appellant. The first
appellant appealed against both
the conviction and sentence
while the others appealed
against sentence only. While the
first appellant’s appeal against
conviction failed, his appeal
and that of the others against
sentence succeeded in part. The
first appellant’s appeal against
the sentence of fifteen (15)
years was based on the sole
ground that it was excessive.
One of the submissions made by
counsel for the first appellant
for the consideration of the
then Court of Appeal, which was
then the apex court of the land,
was his ripe age. He was
fifty-four (54) years at the
time. Incidentally, the three
counts upon which the first
appellant was slapped with the
concurrent sentences of fifteen
(15) years IHL under the
Currency Act [Act 242] carried a
maximum sentence of life
imprisonment.
The court, per Azu Crabbe, C.J.
in determining the excessiveness
or otherwise of the sentence of
15 years IHL, referred to the
notorious case of KWASHIE v
THE REPUBLIC [1971] 1 GLR 488
(C. A.) on the
factors which a trial court or
judge is entitled to consider in
determining the length of
sentence, which we do not want
to repeat here because of their
notoriety.
The court then stated as
follows: “One of the objects
of the Currency Act, 1964 [Act
242], of Ghana was to prohibit
acts tending to depreciate the
currency of the country and
harmful to the general economy.
The conduct of the appellants,
it seems to this court, was very
serious, because by putting the
false currencies in circulation
they were helping to undermine
the confidence of the country’s
currency in the present
circumstances, when the economy
is slowly but gradually
recovering from the damage of
past years. Offences of this
gravity usually call for
deterrent sentences which would
teach others like the appellants
that crimes of this sort would
not be tolerated and would be
severely punished. But the
general principle is that a
sentence of imprisonment, even
though intended specifically as
a general deterrence, must not
be excessive in relation to the
facts of the offence. This court
thinks after a most anxious
consideration of the age of the
first appellant and all the
circumstances of this case, that
the sentences of fifteen years
on each of the counts (1), (4)
and (5) are inordinately
excessive and ought to be
reduced and accordingly a
sentence of ten years’
imprisonment with hard labour on
each of these counts is
accordingly substituted to run
from the date of the original
sentences. To that extent the
appeal by the first appellant
against sentence is allowed”.
I
have quoted extensively the
above decision of the then apex
court of the land to drum home
the factors the courts consider
in determining deterrent
sentences vis-à-vis other
determinants that are factored
in the imposition of
punishments.
Though the crimes committed by
the first appellant and the
others in the above case are not
the same as that of the
appellant before us, the height
or level of seriousness society
attaches to both crimes; (i.e.
currency counterfeiting and drug
dealings) could be matched as
being at par. Even looking at
the punishments prescribed by
law for the two separate
offences, it appeared the former
carried a heavier penalty than
the latter; the maximum being
life imprisonment which the
latter cannot attract.
While the law in question; (i.e.
P. N. D. C. Law 236) of 1990
prescribes a minimum sentence of
ten (10) years, the maximum that
could be imposed by a trial
court is at large though devoid
of life imprisonment. This means
that taking into consideration
the way or manner, or the modus
operandi of the accused in the
commission of the crime in
question, a court can decide to
effect a punishment double or
triple the minimum prescribed by
law even in a situation where
the accused had spent some time
in lawful custody before the
completion of the trial. A trial
court that imposes such a
sentence would be justified in
doing so where the court makes
manifest in its judgment the
fact of it having taken into
account the number of years
already spent in custody prior
to the sentencing.
A
careful reading of the judgment
of the trial tribunal that was
delivered on 26th
November 2008 suggests that in
sentencing the appellant to
fourteen (14) years IHL on each
of the two counts to run
concurrently, the trial tribunal
did not advert its mind to the
fact that the appellant had been
in continuous lawful custody
since his arrest on 24th
July 2005. This covered a period
of three (3) years, four (4)
months prior to the imposition
of the 14-year jail sentence on
him on each of the two
counts.The Court of Appeal that
determined the first appeal also
committed the same error.
It
is needless to point out that if
the trial tribunal was minded in
sentencing the appellant to more
than the fourteen (14) years it
had settled on, it would have
made it very clear in its
judgment that notwithstanding
the over three years spent in
lawful custody, it had still
decided to give him fourteen
(14) more years to serve as a
deterrence to other like-minded
persons. Wood, C.J. was very
clear on this point when, in her
elaboration on article 14 (6) of
the 1992 Constitution in the
Bosso case supra, she
delivered herself as follows:
“This clear constitutional
provision enjoins judges, when
passing sentence, to takeany
period spent in lawful custody
before the conclusion of the
trial into account. A legitimate
question which might arise in
any given case and which does in
deed arise for consideration in
this appeal, is how do we arrive
at the conclusion that this
constitutional mandate has been
complied with? We believe this
is discernible from the record
of appeal. We would not attempt
to lay down any hard and fast
rules as to the form, manner or
language in which the compliance
should be stated, but the fact
of compliance must be either
explicitly or implicitly be
clear on the face of the record
of appeal. Admittedly, the more
explicitly the court expresses
the position that it has taken
into account the said period,
the better it is for everyone as
it places the question beyond
every controversy and leaves no
room for doubt. Nonetheless, we
think that any reference to the
period spent in custody before
the conclusion of the trial in a
manner that suggests that it
weighed on the judges’ mind
before deciding on the sentence
should be sufficient”.
If
the trial tribunal had done that
with an affirmation by the Court
of Appeal, this Court would be
slow in interfering withthe
exercise of the lower courts’
discretion for, as Azu Crabbe
C.J. rightly opined in the
Apaloo case; an appellate court
does not interfere with a
sentence on the mere ground that
if members of the court had been
trying the appellant, they might
have passed a somewhat different
sentence.
So
as things stand now, there is no
question to the fact that the
sentence the trial tribunal
intended to impose on the
appellant, after evaluating the
evidence before it, was fourteen
(14) years IHL; nothing more,
nothing less. If the trial
tribunal had taken account of
the fact that the appellant had
spent more than three years in
lawful custody at the time it
was imposing that sentence; a
requirement that the
Constitution of the Republic
mandates our courts to consider,
it would have deducted that from
the number of years it had
settled on before announcing the
sentence. Having failed to do so
as expressly directed by this
Court in the Bosso and
Iboman cases cited supra,
both the trial tribunal and the
Court of Appeal grievously erred
in their respective decisions.
From the records before us, the
appellant was forty-seven (47)
years old at the time he was
arrested on 24th July
2005. He has since been in
continuous custody, which covers
a period of ten (10) years, six
(6) months by our calculations.
This means that appellant is
over fifty-seven (57) years as
at now. This places him in an
older age than the first
appellant in the Apaloo case who
was 54 then, which age the then
apex court considered as ripe
compelling it to reduce his
sentence from fifteen (15) years
to ten (10) years.
In
our view, ten (10) years and six
(6) months in continuous prison
confinement in our prisons,
which are notorious for their
very deplorable conditions, is
enough punishment for the
appellant for the offences he
was said to have committed.
Psalm 90 verse 10 of the Holy
Book teaches us that: “The
days of our lives are seventy
years; and if by reason of
strength they are eighty years,
yet their boast is only labour
and sorrow; for it is soon cut
off and we fly away”.
If
our years on earth are seventy
(i.e. three scores and ten) and
any extra is labour and sorrow,
then at fifty-seven (57), the
appellant is left with a decade
and three (i.e. 13) years out of
his labour/sorrow free years on
earth; going by this Biblical
teaching. We therefore hold the
view that appellant has suffered
enough in confinement for his
pole-vaulting attempt to
increasing his finances through
illegal means, instead of
embarking on a legal path to
achieving the same purpose.
We
shall therefore interfere with
the sentence of fourteen (14)
years IHL on each of the two
counts passed by the trial
tribunal and affirmed by the
Court of Appeal, and in its
place substitute it with a
concurrent sentence of ten (10)
years IHL on each of the two
counts to run from the date of
the original sentences.
We
do so, taking into account the
three years four months already
spent in lawful custody before
the imposition of the fourteen
(14) year jail term, which the
two lower courts appeared to
have glossed over by their
failure to expressly indicate
their compliance as advised by
this Court in the two cases of
BOSSO v THE REPUBLIC and
FRIMPONG ‘alias’ IBOMAN v THE
REPUBLIC cited supra. This
is his constitutional right as
expressed by this Court in its
recent unreported judgment per
Adinyira (Mrs), JSC, dated 2nd
December 2015 in the case of
FRIMPONG BADU v THE REPUBLIC;
Criminal Appeal No. J3/11/2015.
We
shall take this opportunity to
repeat our admonition to all
trial courts to spare appellate
courts the headache of having to
interfere in the legitimate
exercise of their discretion in
the passing or imposition of
sentences on convicted criminals
by complying strictly with the
provisions of Article 14 (6) of
the 1992 Constitution as
expressly stated by this Court
in the three cases cited supra.
Appeal against sentence is
accordingly upheld.
YAW APPAU
JUSTICE OF THE SUPREME
COURT
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
A.
A. BENIN
JUSTICE OF THE SUPREME
COURT
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWAKU AFRIFAH NSIAH ASARE JNR,
ESQ. FOR THE APPELLANT.
MALIKE WOANYAH-DEY(MRS) ESQ.
(SENIOR STATE ATTORNEY) FOR THE
REPUBLIC.
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