ABBOT vs. THE REPUBLIC [1976]DLHC229

Date	1976-07-26
Suit No.
Citation No.	[1976]DLHC229

OSEI-HWERE J.

APPELLANT IN PERSON.

YAW MANU FOR THE RESPONDENT.

[1976]DLHC229
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													<main id="main" class="content" style="min-height: 60rem" >ABBOT <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1989-90]1 GLR 326<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 JULY 1976<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APPELLANT IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This is
an appeal by the appellant against his sentence. The appellant was jointly
charged as the first accused with one Kwadwo Yeboah alias Kwadwo Moses and
arraigned before the circuit court for stealing. Both pleaded not guilty and
they were tried and found guilty and convicted. The evidence against them
disclosed that they stole a Honda 12 motor cycle valued at ¢1,208.00 at Bechem.
The complainant had parked the motor cycle in his house and had gone to sleep
on the night of 15 October 1975. At 3 a.m. on 17 October 1975 an army patrol at
Dome near Nsawam came upon them, with the appellant (the first accused) driving
the motor cycle and the second accused riding as his pillion. Before passing
sentence the trial judge was informed that the appellant had a previous
conviction for stealing and that he had been sentenced to a fine of ¢30,00 or
two months’ imprisonment with hard labour on 28 April 1972 at Agona Swedru. The
appellant admitted his previous conviction. The prosecutor further informed the
judge that he has had confirmation by telegram that the second accused was
committed to the Borstal Institute, Mamoobi, for stealing, from where he had
escaped on 9 July 1975 and that he was a wanted person. He had obviously
committed the present offence whilst he had not been released from Borstal. The
second accused had stated his age to be fifteen but the police had doubted this
and so they had referred him to a medical officer to assess his age. This had
been assessed at nineteen years which the trial judge accepted. In sentencing
the appellant and his colleague in crime he imposed a sentence of three years’
imprisonment with hard labour on the appellant and twelve months’ imprisonment
with hard labour on his colleague. The appellant has appealed praying for a reduction
of his sentence.<o:p></o:p>Counsel
for the respondent has conceded that the appeal against sentence must be
allowed as he finds the appellant’s sentence rather harsh as compared with the
sentence of the second accused who, although he does not feel he has a previous
conviction because he had not completed serving his sentence when he committed
this offence, must not be given the benefit of his unlawful act in escaping
from lawful custody to commit this offence and that if his sentence is not
aggravated it must also not be mitigated. In this regard he feels that the
sentence of the appellant ought to have been seen in the same light as that of
the second accused.<o:p></o:p>Whilst
agreeing with the feelings of the respondent’s counsel expressed above as to
the sentence, I do not subscribe to his view that the second accused cannot be
said to have a previous conviction especially when his conviction on the
stealing offence that took him to Borstal is antecedent in point of time to his
present conviction on this offence and the phrase “previous conviction” means
no more than having been found guilty of crime and being found guilty again of
crime. Section 300 (1) of the Criminal Procedure Code, 1960 (Act 30), which
stipulates increased punishment for previous conviction does not, of course,
concern itself with previous sentence. The sentencing judge was not even
permitted to take into consideration the appellant’s previous conviction. The
appellant’s age when he committed the crime was stated to be twenty years.
Section 300 (4) of Act 30 provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“300. (4)
A conviction of a person for a crime committed by him before attaining the age
of eighteen years shall not be admitted in evidence against him for the
purposes of the said Table after he has attained the age of twenty years.”<o:p></o:p><o:p>&nbsp;</o:p>The
subsection means that in proceedings for an offence alleged to have been
committed by a person of or over the age of twenty, any offence of which he was
found guilty while under the age of eighteen shall be disregarded by the court
for the purpose of imposing an enhanced sentence.<o:p></o:p><o:p>&nbsp;</o:p>Although
trial courts have been given discretionary powers in the matter of sentencing,
it is a cause for great regret that there has never been an attempt at
rationalisation in the exercise of these powers. Sentencing has hitherto been
nothing but haphazard and I think that the time is well overdue when appellate
courts made a conscious effort to bring sanity to bear on these matters by
formulating principles of sentencing so that the law in this sphere will escape
the declamation of being “an ass, an idiot.” Disparity of sentences, especially
when the accused persons have committed a joint offence and stand on the same
footing, must be a good ground of appeal. Thus in R. v. Heyes [1974] Crim.L.R.
57, C.A. the facts disclosed that H.:<o:p></o:p>