EMMANUEL AGBEKO (PLAINTIFFS) vs. THE REPUBLIC (DEFENDANTS) [2010]DLHC7522

Date	2010-12-10
Suit No.	SUIT NO. F23/34/10
Citation No.	[2010]DLHC7522

KOSSI EFO KAGLO J.

FRANCIS POLLEY FOR APPELLANT.

FREDERICK NAWURA FOR THE STATE

[2010]DLHC7522
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL AGBEKO<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH
COURT, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. F23/34/10&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 10TH DECEMBER,
2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANCIS POLLEY FOR
APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

FREDERICK
NAWURA FOR THE STATE <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:0cm 0cm 1.0pt 0cm">

KOSSI
EFO KAGLO J. SITTING AS HIGH COURT JUDGE.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>An
appeal against the sentence of five (5) years I.H.L. for defrauding by false
pretence a complainant of GH¢440.00 by a Circuit Court in Koforidua. The facts
of the case are that, the appellant who styled himself as a pastor, commonly
rented a store which he knew was not his to one Mercy Adodo, collected an
amount of ¢440.00 but failed to deliver the store to the complainant. A report
was made to the police and appellant was arrested and charged before the
Circuit Court, Koforidua. He pleaded “Not Guilty” to the charge of defrauding
by false pretense and after the trial, he was found guilty convicted and
sentence to 5 years with I.H.L. <o:p></o:p>In
sentencing the appellant the trial judge observed that, the appellant was
"a young offender and was not known to the law". However, the judge
went ahead and sentenced him to 5 years with I.H.L. It is this sentence that
appellant is appealing against on the grounds that, having regard to the fact
that he is a young offender and was not known to the law, the sentence was
harsh and excessive within the circumstances. <o:p></o:p>The
state argued that the judge took into consideration factors like, the appellant
being a man of God who did not show any remorse during the whole trial. Also he
did not intimate to the court that he would refund the money to the
complainant. Again appellant planned his modus operandum before executing same
and deserves a custodial sentence to serve as deterrent to others in our
society. <o:p></o:p>To
the state "if counsel for appellant argued that the sentence was too
harsh, he is not particularly opposed to that but prayed this court that the
custodial sentence should not be transacted. The state is not against a
reduction of the sentence, but whatever be the reduction, the appellant should
serve a custodial sentence. The state concluded that being a man of God,
appellant would be useful serving a prison term. I would say the fundamental
purpose of sentencing is to contribute alongside with other crime prevention
initiatives; to respect the law and maintenance of a just, peaceful and safe
society by imposing just sanctions that have one of the following objectives in
mind. <o:p></o:p>a)
To denounce unlawful conduct; Judgments of the Superior Courts 14296 Copyright
© DataCenta Ltd. <o:p></o:p>b)
To discourage the offenders and other persons from committing offences; <o:p></o:p>c)
To separate offenders from society where necessary; <o:p></o:p>d)
To assist in rehabilitation of offenders; <o:p></o:p>e)
To provide reparation for harm done to victims or to the community and <o:p></o:p>f)
To promote a sense of responsibility in offenders, and acknowledgement of the
harm done to victims and to the community. <o:p></o:p>The
fundamental principle of sentencing is that; the sentence must be proportionate
to the gravity of the offence, and the degree of responsibility of the
offender. <o:p></o:p>Having
regard to the above, one would ask if the Sentence of 5 I.H.L. imposed by the
trial court was proportionate to the offence committed by the appellant. Again
having regard to the observation of the trial judge that, "the appellant
was a young offender not known to the law", how is the 5 years I.H.L.
going to impact on the young offender not known to the law? What purpose would
be served if for an offence like stealing which has a maximum sentence of
between 2 to 3 years I.H.L. is increase to 5 I.H.L. for "a first offender
not known to the law"? <o:p></o:p>The
courts in Ghana have always been cautious as to how young offenders not known
to the law should be punished but not destroyed by the type of sentence imposed
on them. <o:p></o:p>I am
of the view that defrauding a person of an amount of GH¢440.00 is a crime which
should be visited with a punishment but not harsh punishment of 5 years I.H.L.
As a young offender the court is under obligation to assist the appellant to
reform and become a useful person to society but should not mixed up with
harden criminals who are practicing all forms of other crimes like so domy, homor-sexualism
in prison cells which leads to the spread HIV/Aids which eventually results in
loss of lives and impact negatively on the economy of the country. <o:p></o:p>Similarly,
our prison cells are over crowded and the courts are to look for other
alternative forms of punishment particularly for offences like defrauding by
false pretences rather than compo</main>