ABDULAI FUSENI vs. THE REPUBLIC [2015]DLCA8918

Date	2015-05-28
Suit No.	CRIMINAL APPEAL NO. H2/2 /2015
Citation No.	[2015]DLCA8918

MARFUL-SAU JA (PRESIDING)

ACQUAYE JA

TORKORNOO JA

AHUMAH OCANSEY FOR THE APPELLANT

SYLVIA ADUSU (CSA) FOR THE RESPONDENT

[2015]DLCA8918
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													<main id="main" class="content" style="min-height: 60rem" >ABDULAI FUSENI<o:p></o:p>(APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
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color:#00B0F0">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CRIMINAL APPEAL NO. H2/2 /2015&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: 28TH MAY 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AHUMAH
OCANSEY FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SYLVIA
ADUSU (CSA) FOR THE RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p>&nbsp;MARFUL-SAU JA (PRESIDING), ACQUAYE JA,
TORKORNOO JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>MARFUL-SAU, JA: - <o:p></o:p>The
appellant in this appeal was charged together with four others on two counts of
conspiracy to commit robbery and robbery contrary to sections 23(1) and 149 of
the Criminal and Other Offences Act, 1960, Act 29 as amended by Act 646 of
2003. The appellant and the other convicts were tried by the Fast Track High
Court, Accra and were all convicted and sentenced to 20 years IHL in a judgment
delivered on the 20th July 2010. The appellant was the 3rd
accused person at the trial and he has appealed against the sentence of 20
years imposed by the trial court.<o:p></o:p><o:p>&nbsp;</o:p>The
facts of the case upon which the appellant and the others were prosecuted was that
the five convicts on or about 5th October, 2003 at about 1.00am
attacked one Teye Ameko, a livestock farmer who owned herds of cattle and other
animals in his village at Old Water Works near Akuse on the Kpong- Tema
Motorway road. The said convicts who were armed with guns and cutlasses
inflicted cutlass wound on Teye Ameko ,fired gun shots to scare people away
from coming to the scene, and eventually ransacked the rooms of the victim and
took away an amount of One Hundred and Forty-four Million, Eight Hundred
Thousand old cedis (C144, 800,000.00). From the record of appeal, after the
attack the victim bled profusely until he was rescued by his children and taken
to the Akuse Government Hospital where he was referred to the Narh-Bita
Hospital in Tema.<o:p></o:p>In
his Notice of Appeal and written submissions to this court, counsel for the
appellant main complaint against the sentence imposed by the trial court, is
that, the court failed to consider the role played by each of the five convicts
in the robbery and that if the court had done so, it would not have sentenced
all the convicts to 20 years IHL. Counsel is therefore urging this court to
review the record of appeal and evaluate the role played by each of the five
convicts and render proportionate sentences to each. I have read the record of
appeal carefully and I think that in the circumstances of this case each of the
five convicts played major role in the execution of the robbery. The record is
clear that when the then accused persons entered the house, they ordered the
victim to bring out all his money, and subjected him to severe torture and
beating because he responded that he had no money. When the victim became
unconscious the 1st and 5th accused persons carried him
to the bush behind his house to show where he had kept his money.<o:p></o:p>&nbsp;At this point the other accused persons
including the appellant fired their guns to scare anybody from coming to the
scene. Later the 1st and 5th accused joined the rest
including the appellant in ransacking the victim’s room and took away the
amount of C 144,800,000.00. This was after they had inflicted the cutlass
wounds on the victim. From this narration, how can it be argued that the
appellant played a minor role in the robbery and for that matter he should be
dealt with differently from the others particularly, the 1st and 5th
accused persons. From the undisputed evidence on record the appellant took part
in beating the victim and he was among those who were firing shots to scare
people from coming to the rescue of the victim and his family. The record
revealed that when the Police visited the crime scene, sixteen empty shells of
BB Cartridge were found at the scene.<o:p></o:p><o:p>&nbsp;</o:p>In Kwashie v. The Republic (1971) 1 GLR 488, this court
dealing with sentencing power of the court had this to say:-<o:p></o:p>‘’In
determining the length of sentence, the factors which the trial judge is
entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the
degree of revulsion felt by law-abiding citizens of the society for the particular
crime;(3) the premeditation with which the criminal plan was executed; (4) the
prevalence of the crime within the particular locality where the offence took
place; or in the country generally; (5) the sudden increase in the incidence of
the particular crime; and (6) mitigating or aggravating circumstances such as
extreme youth, good character and the violent manner in which the offence was
committed.’’<o:p></o:p><o:p>&nbsp;</o:p>Considering
the above factors, I think the trial court did no wrong in imposing the 20
years sentence on the appellant. In passing sentence the trial judge held as
follows at page 30 of the record of appeal:-<o:p></o:p><o:p>&nbsp;</o:p>