IMPRAIM vs. THE REPUBLIC [1987]DLHC2252

Date	1987-06-01
Suit No.
Citation No.	[1987]DLHC2252

KPEGAH J.

A. M. SACKEYFIO (FOR H. H. HAYFORD) FOR THE APPELLANT.

CREPPY CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1987]DLHC2252
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													<main id="main" class="content" style="min-height: 60rem" >IMPRAIM<o:p></o:p>vs.<o:p></o:p>THE
REPUBLIC<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 2
GLR 39<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">

</div>COUNSEL:<o:p></o:p>A. M.
SACKEYFIO (FOR H. H. HAYFORD) FOR THE APPELLANT.<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">

CREPPY,
CHIEF STATE ATTORNEY, FOR THE REPUBLIC.
<o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>The
appellant, a young man in his early twenties, was arraigned before his Worship,
S. A. Ankrah, sitting at the District Court Grade II, Winneba on a charge of
being on premises for unlawful purpose contrary to section 155 of the Criminal
Code, 1960 (Act 29). He pleaded guilty to the charge and was convicted on his
own plea and was sentenced to twelve months’ imprisonment with hard labour. He
later appealed against his conviction and sentence and subsequently brought an
application for bail pending appeal.<o:p></o:p>When this
motion came on for hearing, Mr. A. H. Sackeyfio, holding Mr H. H. Hayford’s
brief, decided to withdraw the application for bail and pleaded that since the
record of proceedings was available, the appeal be admitted for argument. The
Chief State Attorney, Mr. Creppy, did not object so the motion for bail was
withdrawn and the appeal admitted for argument.<o:p></o:p>Learned
counsel for the appellant abandoned grounds 1 and 2 which were against the
conviction and rather sought and was granted leave to argue only ground 3 which
was against sentence. It states: “the learned magistrate improperly exercised
his discretion in imposing a controlled sentence on the appellant who is a
first offender.” In supporting this ground, Mr. Sackeyfio submitted that the
twelve months, being the maximum sentence the court could impose, was too
excessive. To impose the maximum sentence a court has jurisdiction to, urged
counsel, is an injudicious use of discretion. Learned counsel therefore
submitted that “the custodial sentence be set aside and a fine imposed” by this
court.<o:p></o:p>The
learned Chief State Attorney in the main agreed with the submission of counsel
for the appellant that it was improper for the trial court to impose the
maximum sentence it could, under the law, on the appellant; more so when
nothing has actually been stolen and the appellant never benefited from the
offence. Mr. Creppy therefore asked this court to “reduce the sentence to two
months” so that there could be a record against the appellant.<o:p></o:p>In
criticising the twelve months’ sentence imposed on the appellant as improper
because it is the maximum the court could impose, I do not understand both
counsel to mean that it is the maximum sentence the offence attracts under the
offence creating section. I take them to mean the maximum the district court
grade II can impose, since under section 2(b) of the Courts Act, 1971 (Act 372)
a district court grade II’s sentencing power is limited to twelve months. I
take this view because the offence creating section, i.e. section 155 of Act 29,
declares the crime of being on premises for unlawful purpose a misdemeanour
without specifying the sanction it should attract. Therefore, by virtue of
section 296 of the Criminal Procedure Code, 1960 (Act 30), as substituted by
the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), the offence the
appellant was charged with attracts the maximum penalty of three years. The
relevant provision in sub-section (4) states:<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">“(4)
Where a crime is declared by any enactment to be a misdemeanour, and the
punishment for the crime is not specified, a person convicted thereof shall be
liable to imprisonment for a term not exceeding three years.”<o:p></o:p>The
offence of being on premises under section 155 of Act 29 is not included in
section 296(5) of Act 30. The trial court may have found itself faced with a
situation where it might have felt, rightly or wrongly, some abhorrence for the
offence and decided to impose the maximum sentence permissible under its
jurisdiction, which is still below the ceiling of three years for the offence.
The question then I would want to pose and attempt to consider is, whether if a
court exercises its discretion in imposing the maximum penalty its jurisdiction
permits, although a higher sentence is permissible by the offence creating
section, that per se makes the sentence imposed harsh and an abuse of
discretion? Put differently, does that per se offer a good ground for
interfering with the penalty imposed and setting it aside or varying it
downwards?<o:p></o:p>I do not
think so. It is only when that fact is coupled with special circumstances which
will make the twelve months too harsh can the exercise of the discretion be
called into question and legitimately interfered with. Taken in isolation
however, I do not think it is a good enough reason, and in such a situation an
appellate court should be cautious it is not being called upon to substitute
its own exercise of discretion for that of the trial court. This is because in
interfering with the exercise of discretion of a trial court, an appellate court
is not permitted to substitute its own exercise of discretion for the
discretion already exercised by the trial court: see Charles Osenton &amp; Co.</main>