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Criminal law -
Conspiracy to steal – Stealing –
Article 14 (4) -
Constitution,1992 – Plea for
leniency Whether or not the
judgment was against the weight
of evidence - Whether or not the
sentence harsh and excessive -
HEADNOTES
The appellant, Owusu Banahene
alongside with two other accused
persons was convicted on two
counts of conspiracy to steal
and stealing building materials
to the tune of GH¢ 2, 050,000.00
from Iron Birds Company , a
company of his own uncle. On,
11 February 2011, he was
convicted and sentenced to 20
years IHL and the other two
accused persons were sentenced
to terms of 10 and 15 years
respectively. The trial Judge
also made a restitution order
for the appellant to restore to
the complainant all properties
and items acquired as proceeds
of the dishonest appropriation.
An appeal to the Court of
Appeal having failed, the
appellant has appealed against
this judgment dated 25 June 2013
HELD
There is also no evidence on
record that the judge took into
consideration the period of time
that the appellant spent in
custody pending the trial which
is in contravention of Article
14 (4) of the Constitution
Taking all these factors into
consideration we will allow the
appeal against sentence. The
appeal against sentence succeeds
by the substitution of the
sentence of 20 years IHL to 12
years IHL on each count to run
concurrently
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
CASES REFERRED TO IN JUDGMENT
Apaloo v The Republic [1975]
1GLR 156.
Kwashie v The Republic [1971]
GLR 488,
Gligah & Atisa v The Republic
[2010] SCGLR
Kamil v The Republic [2011]
1SCGLR 300,
Frimpong alias Iboman v The
Republic [2011] 1SCGLR 297
Bosso v The Republic [2009]
SCGLR 420.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA (MRS.), JSC:-
COUNSEL
NANA YAA NARTEY FOR THE
APPELLANT/APPELLANT.
FRANCES MULLEN ANSAH, PRINCIPAL
STATE ATTORNEY FOR THE
RESPONDENT
/RESPONDENT.
ADINYIRA (MRS.), JSC:-
The appellant, Owusu Banahene
alongside with two other accused
persons was convicted on two
counts of conspiracy to steal
and stealing building materials
to the tune of GH¢ 2, 050,000.00
from Iron Birds Company , a
company of his own uncle. On,
11 February 2011, he was
convicted and sentenced to 20
years IHL and the other two
accused persons were sentenced
to terms of 10 and 15 years
respectively. The trial Judge
also made a restitution order
for the appellant to restore to
the complainant all properties
and items acquired as proceeds
of the dishonest appropriation.
An appeal to the Court of Appeal
having failed, the appellant has
appealed against this judgment
dated 25 June 2013
on two grounds that
the
judgment was against the weight
of evidence and the sentence
harsh and excessive.
Ground One: Judgment is against
the weight of evidence
We have given serious
consideration to this ground of
appeal and evaluated the
evidence and have come to the
conclusion that there is
sufficient evidence on record to
support the charges against the
appellant. We do not find any
merit on this ground of appeal.
We will accordingly dismiss this
ground of appeal and affirm the
conviction of the appellant.
Ground Two: Sentence of 20 years
IHL is excessive and harsh
As a principle, sentencing is a
matter of discretion for the
trial court and an appellate
court will only interfere when
in its opinion the sentence is
manifestly excessive having
regard to the circumstances of
the case or that the sentence
was wrong in principle. See
Apaloo
v The Republic [1975] 1GLR 156.
Factors that a court considers
in determining the length of
sentence include:
1.
Any period of time spent in
lawful custody in respect of
that offence before the
completion of his trial
[Article
14 (4) of the Constitution,1992]
2.
The intrinsic seriousness of the
offence.
3.
The degree of revulsion felt by
law abiding citizens of the
society for the particular
crime.
4.
The premeditation with which the
crime was convicted.
5.
The prevalence of the crime
within the particular locality
where the offence took place, or
in the country generally.
6.
The sudden increase in the
incidence of the particular
crime.
7.
Mitigating circumstances such as
the extreme youth, good
character, remorse and
reparation
8.
Aggravating circumstances such
the violence or the manner in
which the crime was committed.
See the cases of
Kwashie v The Republic [1971]
GLR 488, Gligah & Atisa v The
Republic [2010] SCGLR Kamil v
The Republic [2011] 1SCGLR 300,
and Frimpong alias Iboman v The
Republic [2011] 1SCGLR 297
Counsel for the appellant
submits that the sentence was
manifestly excessive as the
appellant was a first offender
and all his properties were
confiscated and given to the
complainant.
Counsel for the Republic, on her
part submits that having regard
to the circumstances of the case
and the mode of operation by the
appellant to loot the
complainant, the 20 years IHL
was not harsh.
We take note that the trial
judge considered the age of the
appellant and the fact that all
the properties he acquired was
ordered to be confiscated and
restored to the complainant.
However he went on to say:
“Regardless, considering the
amount involved in the thievery
coupled with the craft the
accused persons employed to
effectuate their nefarious
agenda, I am inclined to impose
a severe punishment, with the
view hopefully to deter other
family members working in the
company who may have haboured
any such criminal intent and to
deter society in general.”
Much as we appreciate the
sentiment of the trial judge, we
are of the view the sentence of
20 years IHL is rather excessive
taking into account the factors
that a court has to consider in
determining the length of
sentence.
We have considered the
plea of
Counsel for leniency and
also considered the fact that
all the properties the appellant
acquired during the period he
committed the crime have been
confiscated and restored to the
complaint which makes the
sentence of 20 years imposed on
the appellant rather hash.
There is also no evidence on
record that the judge took into
consideration the period of time
that the appellant spent in
custody pending the trial which
is in contravention of Article
14 (4) of the Constitution.
See
Bosso
v The Republic [2009] SCGLR 420.
Taking all these factors into
consideration we will allow the
appeal against sentence;
recalling part of Portia’s
speech on the need to show mercy
in William Shakespeare’s
Merchant of Venice:
“The quality of
mercy is not strained;
It droppeth as the gentle rain
from heaven
Upon the place beneath. It is
twice blessed;
It blessed him that gives, and
him that takes”
We will therefore tamper justice
with mercy and reduce the
sentence of the appellant from
20 years IHL to 12 years IHL on
each count to run concurrently.
The appeal against sentence
succeeds by the substitution of
the sentence of 20 years IHL to
12 years IHL on each count to
run concurrently.
S. O. A.
ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira
(Mrs.), JSC.
V.
J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira
(Mrs.), JSC.
ANIN
YEBOAH
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira
(Mrs.), JSC.
P.
BAFFOE- BONNIE
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira
(Mrs.), JSC.
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
NANA YAA NARTEY FOR THE
APPELLANT/APPELLANT.
FRANCES MULLEN ANSAH, PRINCIPAL
STATE ATTORNEY FOR THE
RESPONDENT/RESPONDENT.
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