HARUNA vs. THE REPUBLIC [1979]DLHC1066

Date	1979-12-08
Suit No.
Citation No.	[1979]DLHC1066

TAYLOR J.

BAWUMIA FOR THE APPELLANT.

WIREDU PEPRAH FOR THE REPUBLIC.

[1979]DLHC1066
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													<main id="main" class="content" style="min-height: 60rem" >HARUNA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1978] GLR 189<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:
8 DECEMBER 1978<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">

BAWUMIA FOR THE APPELLANT.<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 1.0pt 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This
appellant originally appealed against his conviction and sentence for
possessing Indian hemp contrary to sections 47 (1) and 57 (1) of the Pharmacy
and Drugs Act, 1961 (Act 64), as amended. The offence is a really serious one
for the quantity of Indian hemp involved was quite heavy since it weighed
17,706 grammes. The hemp was in fact contained in four bags. When the appeal
came on for hearing, counsel in my view very properly abandoned the appeal
against conviction. The evidence in support of the offence of possessing Indian
hemp is so overwhelming that I think the most honourable thing for any offender
who is remorseful is to throw in the towel and abandon an appeal which any
tribunal bent on doing justice, will, without hesitation, dismiss summarily. In
the circumstances I dismissed the appeal against conviction summarily.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant, however, was sentenced to eight years’ imprisonment with hard
labour. He is young and this is his first brush with the law. I have said it
time and again that when young men have their first brush with the law, it is essential
in the interest of the reformative element in criminal justice that they be not
sent to prison unless a prison sentence is a mandatory legal requirement. If a
prison sentence is not a mandatory legal requirement, then as a general
proposition, unless there are special circumstances calling for a custodial
sentence, the court must avoid incarcerating young offenders.<o:p></o:p><o:p>&nbsp;</o:p>In this
case the provisions of section 57 (3) of Act 64, mandatorily stipulate that the
offence of possessing Indian hemp must carry a sentence of a least five years
unless conditions spelt out in the proviso to that section are satisfied. These
conditions are inapplicable here so prima facie the appellant must by law be
mandatorily given at least five years’ imprisonment with hard labour. The
learned circuit court judge, however, set out to award a deterrent sentence. He
was certainly entitled in his discretion to award a deterrent sentence if the
circumstances of the case called for it. The question of sentence is a matter
of discretion with all courts of justice. The discretion, however, is
exercisable on well-known principles.<o:p></o:p>In
awarding sentence, particularly when the court sets out to award a deterrent
sentence, which is an abnormal sentence, all the circumstances of the case must
be considered. If there are circumstances tending to mitigate the application
of the deterrent principle, then reasons must be given why those circumstances
must be ignored if a deterrent sentence is imposed. If that is not done, then
that discretion has not been properly exercised and an appellate court can
interfere with the said exercise of discretion. If, however, all the
circumstances relevant to the question of the appropriate sentence have been
adequately considered, then since it is a matter of discretion, the said
exercise of discretion by a lower court ought not to be impugned by an
appellate court.<o:p></o:p><o:p>&nbsp;</o:p>In this
case the learned circuit court judge considered two matters in awarding a
deterrent custodial sentence. The first was that the appellant was trading in
Indian hemp by selling the said Indian hemp for profit. The second was that the
quantity of Indian Hemp was huge being 17,706 grammes. These are the only two
matters considered. There are, however, in my view, other circumstances which
call for consideration. The first is that the appellant is the first offender.
The second is that the appellant was quite young at the date of the offence
being at that time only 26 years old. Thirdly, the amount of money he was going
to realise from the sale of the 17,706 grammes contained in the four bags was
¢480 calculated at ¢120 a bag. I think if he bought the hemp and was selling it
at ¢480 then his profit margin must be a sum of money definitely less than
¢480.<o:p></o:p><o:p>&nbsp;</o:p>There is
a fourth matter that I propose to consider with considerable reluctance. It is
common knowledge that the economic conditions in the country at the moment have
reache</main>