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Criminal law
- Narcotic Drug - section 23 (1)
- Criminal offences Act of 1960
- Section - Narcotic Drugs
(control, enforcement and
sanctions ) Act of 1990.-
Article 29 (5) - 1992
constitution
HEADNOTES
The Appellant
who initially pleaded not guilty
to both counts, changed his plea
to guilty on count one (1) and
guilty with explanation on count
two (2). He was represented by
counsel who informed the court
that the “guilty with
explanation” plea was not to
offset a plea of not guilty but
only a mitigating plea. The
court accordingly convicted him
on his plea and adjourned the
case for sentencing of the
Appellant after his counsel has
put in a plea for mitigation.
Dissatisfied with the sentence
of fifteen (15) years I. H. L.,
the Appellant appealed to the
Court of Appeal. On appeal to
the Court of Appeal, the Court
of Appeal allowed the appeal,
reduced the sentence and set
aside the sentence of fifteen
(15) years I. H. L. In its
place the Court of Appeal,
substituted a sentence of 12
years I. H. L. Still
dissatisfied with the sentence
of 12 years I. H. L., the
Appellant is before this court
once again asking for reduction
of sentence
HELD
(1) I
take judicial notice of the
inhuman treatment and harassment
Ghanaians are needlessly
subjected to when we travel
outside Ghana on regular checks
at International Airports and
the courts should discourage
this conduct. I am not being
heartless in this matter but
sincerely feel that the exercise
of discretion by a trial court
in passing sentence after
conviction should not be
interfered with just because the
appellate court would not have
passed the same sentence if the
Appellant had been tried by it.
Having regard to the magnitude
of the offence which carries 10
years minimum sentence, I would
not say that the 15 years I. H.
L. imposed by the trial court is
manifestly excessive and for
that reason this court must
interfere with same. The
Appellant did not suffer his
disability while in prison and
if with the disability, he
decided to employ same to
engaging in such crime, that
disability should not influence
the court in passing sentence on
him. On the evidence as a whole,
I find no merit in the appeal.
The sentence of 12 years I. H.
L. which was imposed by the
Court of Appeal is hereby set
aside and the sentence of 15
years I. H. L. passed by the
trial court is hereby
substituted
(2)
The majority of this Court is of
the view that upon rejecting the
appeal, this Court would
exercise its discretion under
section 30 (a) (ii) of the Court
Act, 1993, (Act 459) to vary the
sentence of 12 years IHL to 15
years IHL and thereby restore
the sentence imposed by the High
Court. We come to this
conclusion as the High Court
adequately considered all the
mitigation factors in the case
and the sentence of 15 years IHL
for the offence of that
magnitude: possessing 380 slabs
of cocaine, a narcotic drug, was
not excessive and wrong in
principle. I therefore agree to
sentencing the appellant to 15
years IHL.
DISSENTING
OPINIONS ON SENTENCE
Our criminal
justice system must be such that
opportunities are given to all
to continue their life after
imprisonment in much the same
condition that they entered
prison., Secondly, it will be
too expensive for the prisons to
maintain the appellant in his
present condition within the
duration of his entire sentence,
I am really fortified in my
opinion because as an
institution, I believe the time
has come for the judiciary, to
wit the Courts to make
recommendations for the
amendment of our Criminal and
other Offences (Procedure) Act,
1960, Act 30, Times are changing
very fast, and it is my view
that the old view that
punishment must be deterrent in
nature has to be repackaged and
refined to include reforms and
rehabilitation. It is for the
above reasons that I am unable
to agree to the lead judgment’s
re-imposition of the 15 years
prison term. I will therefore
allow the appeal and impose a
sentence of 10 years.
STATUTES
REFERRED TO IN JUDGMENT
1992
constitution
Criminal
offences Ac 1960 Act 29
Narcotic
Drugs (control, enforcement and
sanctions ) Act
1990 (PNDCL 236)
CASES
REFERRED TO IN JUDGMENT
Apaloo vrs
The Republic [1975]1 GLR 156
Kwashie vrs
The Republic [1971]1 GLR 488
Frimpong
alias Iboman v Republic [2012] 1
SCGLR, 297
BOOKS
REFERRED TO IN JUDGMENT
Dictionary of
Law by L. B. Curzon
Criminal Law
Series, The General Part of
Criminal Law- A Ghanaian
Casebook, Volume I, “ Prof.
Henrietta J. A. N. Mensa-Bonsu
DELIVERING
THE LEADING JUDGMENT
OWUSU (MS)
JSC;-
DISSENTING
OPINIONS ON SENTENCE
DOTSE JSC:
COUNSEL
NKRABEAH
EFFAH- DARTEY WITH HIM CHARLES
OFORI FOR THE APPELLANT.
VALERIE
ADUSEI (MRS) (CSA) FOR THE
REPUBLIC
JUDGMENT
OWUSU (MS)
JSC;-
This is an appeal against the
Judgment of the Court of Appeal
reducing a sentence of 15 years
I. H. L imposed on the Appellant
to 12 years I. H. L.
The Appellant was charged with five
(5) others on two counts of
conspiracy to commit crime
contrary to section 23 (1) of
the criminal offences Act of
1960 and possessing Narcotic
Drug without lawful authority
contrary to section 2 (1) of the
Narcotic Drugs (control,
enforcement and sanctions ) Act
of 1990.
The Appellant who initially pleaded
not guilty to both counts,
changed his plea to guilty on
count one (1) and guilty with
explanation on count two (2).
He was represented by counsel who
informed the court that the
“guilty with explanation” plea
was not to offset a plea of not
guilty but only a mitigating
plea.
The court accordingly convicted him
on his plea and adjourned the
case for sentencing of the
Appellant after his counsel has
put in a plea for mitigation.
When the court came to sentence the
Appellant, this is what His
Lordship said:
“I have taken
the plea of mitigation ably
canvassed on behalf of the 1st
accused by his counsel, (sic).
I have also considered that the
1st accused is a
first offender. However, the
question of possession of
narcotic drugs has assumed a
dimension which needed to be
eradicated from the society as
society disapproves of it. This
menace of narcotic drugs has
tarnished the good image of the
West African sub-region
including Ghana and for that the
law required a deterrent
sentence as required in KWASHIE
VRS THE REPUBLIC.
In passing
sentence I would also have
regard to the fact that the 1st
accused has been on remand since
the 29th day of June,
2008, the day of his arrest.
Consequently, the 1st
accused is sentenced to fifteen
(15) years imprisonment with
hard labour (I. H. L.) on each
count of conspiracy and unlawful
possession of narcotic drugs.
Sentences to run concurrently.”
Dissatisfied with the sentence of
fifteen (15) years I. H. L., the
Appellant appealed to the Court
of Appeal.
On appeal to the Court of Appeal,
the Court of Appeal allowed the
appeal, reduced the sentence and
set aside the sentence of
fifteen (15) years I. H. L. In
its place the Court of Appeal,
substituted a sentence of 12
years I. H. L.
The appeal to the Court of Appeal
was based on the following
grounds:
“a. in
sentencing, the court below did
not take the disability of
applicant into account in
accordance with Article 29 (5)
of the 1992 constitution of
Ghana.
b. The court
below failed to properly apply
the period applicant had been on
remand before conviction on the
sentence imposed on applicant.”
Still dissatisfied with the sentence
of 12 years I. H. L., the
Appellant is before this court
once again asking for reduction
of sentence on the grounds that:
“i. The 12
years sentence is harsh.”
Under this ground, counsel sought to
explain why he considers the
sentence to be harsh as follows:
“1.
First of all the Appellant
pleaded GUILTY which means he
did not cost the state any LONG
protracted trial. It is
prayerfully submitted that in
such a scenario the minimum
sentence which in this case is
10 years would be appropriate.
2.
Secondly the appellant spent
almost two clear years in
custody BEFORE sentencing
without the option of bail. So
given this situation even if the
court would not make the
sentence effective date of
arrest at least it would further
the ends of justice if the
sentence was made the minimum
under the law.
3.
(i)
Finally it is respectfully
submitted that the law on
effective date of the sentence
is now so well muddled. It is
respectfully prayed that this
court fundamentally declare that
in a situation where the accused
is arrested and detained without
option of bail for a long trial
it is only fair that out of
respect for basic human rights
whatever sentence that is
imposed upon him more so in
cases such as this where minimum
sentences are prescribed under
the law, the penalty must be
made effective date of arrest.
(ii) The
court did not adequately
consider the medical condition
of the Appellant.”
The Court of Appeal reduced the 15
years imprisonment to 12 years
because according to their
Lordships, the trial Judge
should have taken the Appellants
disability into consideration.
This is what their Lordships
said:
“We think
that considering the disability
of the Appellant the trial judge
should have taken that into
consideration in sentencing the
Appellant but the record of
Appeal does not indicate that he
did so - - - - - - - - - ”
It is for this reason that their
Lordships allowed the appeal and
set aside the sentence imposed
by the trial court.
Before the Court of Appeal, counsel
had relied on Article 29 (5) of
the 1992 constitution which
states that:
“In any
judicial proceedings in which a
disabled person is a party the
legal procedure applied shall
take his physical and mental
condition into account.”
The Court of Appeal therefore on
this basis reduced the sentence.
With due deference to their
Lordships, I do not think the
Appellant’s disability should
have been a consideration for
reducing the sentence. The
sentence passed by the trial
court is not a procedure. In
L. B. Curzon’s Dictionary of
Law, procedure is defined as
“formal manner of conducting
judicial proceedings.”
The trial Judge assigned good
reasons for the sentence passed
by him. Sentencing is
discretionary and where the
discretion has been judicially
exercised, an appellate court
has no just cause to interfere
with the exercise of discretion.
The principles upon which the court
would act on an appeal, against
sentence were that it would 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.
The court would interfere only
when it was of opinion that the
sentence was manifestly
excessive having regard to the
circumstances of the case, or
that the sentence was wrong in
principle.
“Grave offences (such as in the
instant case) usually called for
deterrent sentences. But the
general principle was that a
sentence of imprisonment, even
though intended specifically as
a general deterrence must not be
excessive in relation to the
facts of the offences - - - - -
- - - - ” See the case of APALOO
VRS THE REPUBLIC[1975]1 GLR 156
at 159.
If the Court of Appeal had reduced
the sentence on the
misapplication of Article 29 (5)
of the constitution urged upon
it by counsel for the Appellant,
should this court endorse the
sentence based on the error? I
do not think so.
This court, sitting on the appeal,
has to examine the record, the
gravity of the offence and
arrive at a conclusion whether
the sentence passed by the trial
court should be interfered with.
The trial Judge in passing sentence,
gave reasons why he imposed the
15 years I. H. L. even though
there is no obligation on him to
do so.
“The offence
was of a very grave nature for
which reason the sentence must
not only have been punitive but
must have been a deterrent or
exemplary in order to mark the
disproval of society of such
conduct. When a 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” (emphasis mine).
I associate myself with these
holdings in the case of KWASHIE
VRS THE REPUBLIC [1971]1 GLR 488
at 493 already referred to and
come to the same conclusion in
the instant case.
The Appellant, an amputee engaged
himself in drug trafficking and
was transporting 380 slabs of
cocaine from the Western Region
to Accra. One may ask, for what
purpose? Among his accomplices
was one JAVI, a Columbian who is
at large.
The trial Judge was concerned about
the drug menace which according
to him has assumed a dimension
which needed to be eradicated
from the society as society
disapproves of same. The menace
of narcotic drugs has tarnished
the good image of the West
African sub-region including
Ghana and for that the law
required deterrent sentence.
I totally agree with His Lordship
and see no justifiable reason
why the 15 years I. H. L.
imposed by him should be
interfered with.
The court must help to stamp out
this drug trade especially the
use of our dear country as a
transit quarter.
I take judicial notice of the
inhuman treatment and harassment
Ghanaians are needlessly
subjected to when we travel
outside Ghana on regular checks
at International Airports and
the courts should discourage
this conduct.
I am not being heartless in this
matter but sincerely feel that
the exercise of discretion by a
trial court in passing sentence
after conviction should not be
interfered with just because the
appellate court would not have
passed the same sentence if the
Appellant had been tried by it.
Having regard to the magnitude of
the offence which carries 10
years minimum sentence, I would
not say that the 15 years I. H.
L. imposed by the trial court is
manifestly excessive and for
that reason this court must
interfere with same.
The Appellant did not suffer his
disability while in prison and
if with the disability, he
decided to employ same to
engaging in such crime, that
disability should not influence
the court in passing sentence on
him.
On the evidence as a whole, I find
no merit in the appeal. The
sentence of 12 years I. H. L.
which was imposed by the Court
of Appeal is hereby set aside
and the sentence of 15 years
I. H. L. passed by the trial
court is hereby substituted.
(SGD) R. C.
OWUSU(MS)
JUSTICE OF THE SUPREME COURT
ADINYIRA
(MRS.)
J.S.C;
I had the
privilege to read before hand
the opinion of my eminent
sister, Owusu JSC and I agree
with her conclusion that the
appeal against sentence be
dismissed. I however have a few
words to say about the sentence.
The appellant
who is a person with a
disability submitted before the
Court of Appeal that the trial
court failed to take his
disability into consideration
before passing sentence. He
submitted this failure was an
infringement of Article 29 (5)
of the Constitution, 1992. The
Court of Appeal upheld his
submission and reduced the
sentence of 15 years IHL imposed
by the High Court to 12 years
IHL. The appellant still
dissatisfied appealed to this
Supreme Court against the
sentence.
Article 29
(5) provides:
“In
any judicial proceedings, in
which a disabled person is a
party the
legal
procedure applied shall take his
physical and mental conditions
into account”
As my sister
has ably demonstrated in her
opinion, the appellate court
wrongly applied the said
article.
The majority
of this Court is of the view
that upon rejecting the appeal,
this Court would exercise its
discretion under section 30 (a)
(ii) of the Court Act, 1993,
(Act 459) to vary the sentence
of 12 years IHL to 15 years IHL
and thereby restore the sentence
imposed by the High Court. We
come to this conclusion as the
High Court adequately considered
all the mitigation factors in
the case and the sentence of 15
years IHL for the offence of
that magnitude: possessing 380
slabs of cocaine, a narcotic
drug, was not excessive and
wrong in principle.
I therefore
agree to sentencing the
appellant to 15 years IHL.
(SGD) S. O.
A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH
J.S.C;
I also agree
that the appeal against sentence
be dismissed and the sentence
enhanced to 15years I.H.L.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
DISSENTING
OPINIONS ON SENTENCE
DOTSE JSC:
I have been
privileged to have read the
brief but erudite judgment of my
very well respected sister Rose
Owusu JSC on why the appeal
against sentence must fail.
I am however
unable to agree with her that
the sentence of 15 years imposed
on the appellant by the trial
High Court must be substituted
for the 12 years that the Court
of Appeal allowed when it
reduced the sentence of 15
years.
Even though
the principles guiding
punishment have been very well
discussed in the said judgment,
I think there is something that
has always been missing in the
attitude of the courts towards
sentencing and punishment for
that matter.
Section 294
of the Criminal and other
offences (Procedure) Act, 1960
states on different kinds of
punishment as follows:-
“The
following punishment may be
inflicted for offences
a.
death
b.
imprisonment
c.
detention
d.
fine
e.
payment of compensation
f.
liability to police supervision”
In this
instant, am concerned with only
imprisonment. It has to be noted
that, the above law was enacted
in 1960 with little or no
substantial amendments. It can
therefore be said without any
contradiction that there is a
lot to be done about the
punishment regime in our
criminal justice system.
For example,
there are other forms of
punishment which are being
practiced elsewhere, to wit,
community service, parole,
suspended sentences just to
mention a few.
Considering
the disability which the
appellant herein has, and his
medical condition, it is my
opinion that despite the gravity
of the offence which he has
committed, it will be more
humane to sentence him to the
barest minimum that the offence
stipulates and this to me is 10
years.
Why do I say
so? There is evidence on record
that the appellant is an amputee
and is a known diabetic mellitus
patient. Out of abundance of
caution, let me quote in full
the medical report on the
appellant which is in the record
of appeal. It states in
reference to the appellant thus”
“The above named amputee is a
known Diabetes Mellitus patient
reported here on 04/11/2009 at
the O.P.D with complaints of
severe pains in right knee,
waist pains and in left leg due
to a fall. He has since been
visiting this hospital for
regular routine follow up and
medication.”
I think it is
sufficient for me to state that
judicial notice has been taken
of the fact that the appellant
is an amputee and is also a
Diabetes Mellitus patient and
this is a debilitating disease
which if not treated properly
can incapacitate a person. In
this respect, it is very useful
at this stage to go into medical
journals to find out a little
bit more on Diabetes Mellitus.
What is
Diabetes Mellitus?
“This is a serious metabolic
disorder characterized by
defects in the body’s use of
carbohydrates. It may be caused
by a deficiency in insulin
production by the pancreas or
else by an inability of the body
cells to use the insulin
available.
Diabetes
mellitus, once established,
persists throughout the life of
the individual and often
produces serious,
life-threatening complications,
and thus reduces life
expectancy.
Among diabetes, blindness occurs
twenty five times as frequently
as among non-diabetes, kidney
disease occurs seventeen times
more frequently;gangrene of
the tissue is fifty times more
prevalent among diabetics; and
heart disease occurs twice as
often among diabetics as
among non-diabetics.
111Although diabetics, as such
is not curable, the modern
treatment programs, when
faithfully followed can relieve
the patient of the symptoms of
the disease and can reduce the
prospect of this developing
tragic complications.”
Source “You and Your Health-
Volume Three page 225 by Harold
Shryock and Mervyn G. Hardinge
With the
above write up on what Diabetes
Mellitus is, coupled with the
fact that the appellant is an
amputee, the question that begs
for an answer is whether the
prison has adequate facilities
to cater for the appellant in
the condition in which he finds
himself?
I do not
think so. I have a fair idea of
what a prison in Ghana looks
like and the conditions
operating therein.
The minimum
sentence for the offence
committed by the appellant is 10
years. Taking the quantity of
narcotics involved in this case
into consideration, it can
justifiably be said that even
the 15 years imposed by the
learned trial Judge is not
enough.
However, if I
take into account, the following
serious conditions, the amputee
condition of the appellant, and
the debilitating disease
Diabetes Mellitus which he is
suffering from, which is a
disease which requires proper
attention and treatment at all
times then it is prudent to
ensure the early release of the
appellant from prison. Any
relapse in the treatment can
lead to threatening
consequences, extending in some
cases to life threatening
situations.
Whilst I am
aware that a Diabetic or indeed
an amputee can be sentenced to
life imprisonment, that is
however not the situation here.
My understanding is that, once
there is an opening for the
appellant to come out of prison
at the earliest opportunity,
that chance must be given him.
Our criminal
justice system must be such that
opportunities are given to all
to continue their life after
imprisonment in much the same
condition that they entered
prison.
Secondly, it
will be too expensive for the
prisons to maintain the
appellant in his present
condition within the duration of
his entire sentence
I am really
fortified in my opinion because
as an institution, I believe the
time has come for the judiciary,
to wit the Courts to make
recommendations for the
amendment of our Criminal and
other Offences (Procedure) Act,
1960, Act 30.
Times are
changing very fast, and it is my
view that the old view that
punishment must be deterrent in
nature has to be repackaged and
refined to include reforms and
rehabilitation.
In her
invaluable book of the
“Criminal Law Series, The
General Part of Criminal Law- A
Ghanaian Casebook, Volume I,
“ Prof. Henrietta J. A. N.
Mensa-Bonsu writes on page 138
on specific deterrence as
follows:-
“An individual may be punished
severely to discourage him or
her from ever
committing a like offence. Such
punishment thus ensures that the
particular individual would
learn lessons from the severity
of the punishment and never
repeat the conduct.
The effectiveness of deterrence
as a purpose of punishment
depends upon three
important factors, namely (1)
the certainty of punishment, (2)
the fact that the unpleasantness
of the penalty would out weigh
any advantage obtained by the
Commission of the offence and
(3) publicity.
Without publicity,
the public would not know about
the fate of offenders and
therefore the information which
would encourage law abiding
behavior would be
unavailable.”
I am
convinced that, the lack of
publicity about the prosecution,
conviction and sentence of
persons accused of some offences
such as robbery, rape,
defilement, narcotics, stealing
etc, has resulted into the
failure of the deterrent nature
of the sentences being imposed
having any effect on the public.
In times,
past, the Narcotics Control
Board was publishing the
pictures of Ghanaians convicted
of drug offences and sentenced
accordingly in the national
dailies. This definitely served
as sufficient notice that crime
does not pay and that one stood
the chance of losing all of the
reputation and wealth because of
a criminal conduct.
The shame
attributed to criminal conduct
by such exposures for me is more
than the length of years that
convicts are being handed these
days.
In my
judgment in the case of
Frimpong alias Iboman v Republic
[2012] 1 SCGLR, 297 I made
references to such a phenomenon
at page 334 of report as
follows:-
We however, doubt really, if
such a sentence, or long
sentences by their nature
reform offenders. There is
absolutely no doubt that such a
long sentence of 65
years will appease society and
safeguard them from criminal
conduct. It is however our
view that for such sentences to
be really deterrent to others,
then a different approach must
be adopted to the imposition of
sentences. This is because as in
this appeal, if the appellant
successfully completes the term
of 65 years, we doubt even if
his peers in Domeabra, near
Konongo will be alive for them
to be deterred upon his release,
that is, if he survives the hard
prison conditions in this
country. We similarly doubt if
those around Kantamanto, in
Accra where appellant had a
store will also be available
upon his release after serving
the 65 years to be deterred from
engaging in criminal conduct.
The greatest deterrence to our
mind is the swift but unlawful
mob action that society
unleashes upon those suspected
of committing crimes
especially, stealing, robbery
and ritual murders. If what
happens to suspects in robbery
cases is anything to go by,
there would have been no robbery
or stealing cases by now. “
If I take the
above quotation and match it
against the severe sentences
that the courts have in recent
years been imposing in offences
like defilement, robbery,
stealing and narcotics, then it
will mean that there is indeed a
long journey for us in Ghana
before success can be attained.
This is
because, despite the fact of
these severe sentences, it does
appear that the deterrent effect
of the sentences are not being
felt, possibly because of lack
of publicity.
I will
advocate a regime where those
convicted and sentenced for
offences like rape, defilement,
robbery and narcotics related
cases will have their pictures
published in local papers
denoting the offences they have
committed and the sentences
imposed.
Thirdly, some
of these people should be made
to do community service in the
very communities they come from,
i.e. the recent conviction and
sentence of the former Italian
Prime Minster Silvio Berlusconi
to do community service for tax
related offences.
In this
respect, it will be a welcome
relief if our procedure rules on
criminal justice will be amended
to include suspended sentences,
parole and also some form of
community service.
These
proposals if taken up seriously
will have an effect on persons
who are criminally minded and
perhaps might lead to reduction
in the crime rate.
Secondly, if
new forms of custodial sentence
are introduced which will lead
to the spending of less time in
prison by convicts with the rest
being spent within the community
by the convict doing service
with a monitoring mechanism.
This will
invariable lead to the
strengthening of the capacity of
the Department of Social Welfare
such that the Probation officers
of that department will monitor
prisoners on say parole if it is
introduced or those required to
do community service and or
suspended custodial sentences.
Similarly, convicts who are made
to serve reduced prison terms on
account of poor health can also
be monitored and measured during
their release to ensure that
they do not embark upon a career
in crime again.
It is for the
above reasons that I am unable
to agree to the lead judgment’s
re-imposition of the 15 years
prison term. I will therefore
allow the appeal and impose a
sentence of 10 years.
(SGD) J. V.
M. DOTSE
JUSTICE OF THE SUPREME COURT
AKAMBA, JSC
This appeal
is against the sentence of
twelve (12) years substituted by
the Court of Appeal for the
fifteen (15) years originally
imposed by the trial High
Court. I am unable to
appreciate the necessity for
reverting to the original
sentence of fifteen years as
decided by the majority. By
reverting to the original
sentence imposed by the High
Court this court is enhancing
the sentence of the appellant in
the circumstance. The reason
given by this court for
enhancing rather than endorsing
the reduction by the Court of
Appeal was that the latter had
assigned wrong reasons for the
exercise. The Court of Appeal
said that, “considering the
disability of the Appellant the
trial judge should have taken
that into consideration in
sentencing the Appellant but the
record of Appeal does not
indicate that he did so…” Let
me state clearly that I do not
subscribe to the view by the
majority that: “The trial judge
in passing sentence, gave
reasons why he imposed the 15
years IHL even though there
is no obligation on him to do so.”
(Underlined for emphasis). That
certainly is an unfortunate
position to come from the
highest court of the land which
itself is guided in the exercise
of its overwhelming power by the
Constitution. A judge is obliged
to give reasons for whatever
discretion he/she exercises
under the Constitution or any
other law. To contend otherwise
is to yield to arbitrariness.
Article 296 (b) of the 1992
Constitution stipulates that
where in the Constitution or any
other law discretionary power is
vested in any person or
authority the exercise of it
shall not be arbitrary,
capricious or biased either by
resentment, prejudice or
personal dislike and shall be in
accordance with due process of
law. Given this Constitutional
stipulation I see no reason why
the exercise of a discretion
touching on what sentence to
apply after a trial should
escape the rule that a court
must furnish reasons for the
choice of sentence. This to my
mind will assist, among others
in determining whether the
sentence arrived was based on
proper assessment when the same
comes on appeal for further
consideration. Except for the
few offences with fixed
penalties, the majority of
offences warrant the exercise of
discretion as to what sentence/s
is/are appropriate to the
charges/offences. It is
therefore not sufficient for the
trial court to simply pronounce
a sentence without giving
reasons which relate to the
facts before the court. It is
also important to bear in mind
that sentencing if properly
carried out is by far the most
difficult part of the trial
process. If carried out simply
mechanically will lead to a lot
of injustice, counterproductive
and not serve the purpose of
society. If it is well and
thoughtfully carried out and in
accordance with law it will be
beneficial to society. In this
appeal the appellant did not
waste the time of the court when
he pleaded guilty to the
offence. Even though the
respondent in her written
submission decries this early
submission to justice as a
strategy to assist the
appellant’s colleagues I fail to
see how this comes about. The
burden still remains on the
prosecution to prove the charges
against each accused beyond
reasonable doubt.
The trial
court did consider that the
appellant was a first offender.
The court however considered
that the question of possession
of narcotic drugs had assumed
such dimension that it needed to
be eradicated from society hence
the sentence of fifteen years.
The court also had regard to the
fact that the appellant had been
on remand from 29th
June 2008 when he was arrested
and sentenced as it did. The
Court of Appeal accepted the
plea in mitigation as warranting
its further consideration hence
the sentence of twelve years in
place of the original fifteen.
Considering the evidence in the
record of appeal the only reason
given by the trial judge for his
choice of sentence was the fact
that the offence warranted a
deterrent sentence. That is a
reason enough for the trial
judge to deploy but considered
along side the other mitigating
factors, the Court of Appeal’s
grant of the reduction to twelve
years was appropriate and
properly exercised. It is in
this regard that I would dismiss
the appeal. I therefore affirm
the sentence of twelve years
entered by the Court of Appeal.
(SGD) J. B.
AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
NKRABEAH
EFFAH- DARTEY WITH HIM CHARLES
OFORI FOR THE APPELLANT.
VALERIE
ADUSEI (MRS) (CSA) FOR THE
REPUBLIC
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