BABA MUSAH vs. THE REPUBLIC [2015]DLHC12116

Date	2015-11-24
Suit No.	SUIT NO. BCRA 92/2015
Citation No.	[2015]DLHC12116

HIS LORDSHIP JUSTICE R. B. BATU (J)

DORM ESI FIADJOR FOR REBECCA AYITTEY FOR REPUBLIC

[2015]DLHC12116
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													<main id="main" class="content" style="min-height: 60rem" >&nbsp;BABA MUSAH <o:p></o:p>(APPELLANT) <o:p></o:p>vs.<o:p></o:p>THE REPUBLIC <o:p></o:p>(RESPONDENT))<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO.
BCRA 92/2015&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; DATE: 24TH&nbsp;NOVEMBER
2015<o:p></o:p>

</div>COUNSEL<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>HIS LORDSHIP JUSTICE
R. B. BATU (J)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;Appellant was tried for and convicted for the offence of
incest under Section 105(1) of Act 29/60. He
was sentenced to twenty (20) years imprisonment. The brief facts were that, he on four different occasions had
sex with his biological daughter Gifty Mensah and impregnated her.<o:p></o:p>His appeal was by way of a mitigation of sentence on
grounds that the sentence was hash in the circumstances of the case, that he
was remorseful, that he is a first offender and that he be given to the chance
to go and work to support the victim who is unemployed and vulnerable.<o:p></o:p>Before me he appeared to maintain the stance he took at the trial,
that he did not in fact commit
the offence. At the trial the victim
was said to be two months pregnant then. To
test the truthfulness of that claim it was ordered that the child the product of the pregnancy be produced
for the purpose of an order for a DNA test to be conducted to determine whether the appellant could have fathered
the child. After several adjournments
the report was that that child had died. The
appellant’s allegation could therefore not be put to the test. The conviction based on the evidence
before the trial court therefore stands.<o:p></o:p>The learned State Attorney opposed the plea for
mitigation of sentence pointing out that the
offence of incest carries a punishment
of a minimum of three (3) years and maximum of twenty-five (25) years
imprisonment and that the learned judge took into consideration all the
necessary surrounding circumstances before imposing the punishment.<o:p></o:p>From the judgment the circumstances the learned judge
stated as influencing the sentence were that, that conduct is taboo in the area
appellant hails from as well as other societies in Ghana, that the ‘Holy Writ’
also abhors the practice and that, that offence is on the increase. There is no
indication that the fact of the appellant being a first offender or any other mitigating
factor was taken into consideration. The
learned judge also indicated that he was imposing a sentence severe enough to
deter the appellant and other fathers from sleeping with their own daughters. As the leaned State Attorney rightly
pointed out referring to Taylor J (as he then was)’s judgment in KWADWO VS. THE REPUBLIC 1971 GLR 272 a
deterrent sentence should be harsh enough to be deterrent and short enough to
be informative. The sentence of
twenty years imposed here is close to the maximum permissible sentence of
twenty-five years. From the facts of
the case given by the investigator appellant was thirty-eight (38) years old at
the time of commission of offence. A
sentence of twenty years would mean that he would be fifty- eight (58) years
old, an age of which a person engaged in formal employment would be thinking
of retirement, at the time he finishes serving the sentence. The sentence takes away all the time
appellant could engage in any honest employment. The sentence here is harsh enough to be deterred and also harsh
enough to be destructive of any chance of reformation or engagement of in any
honest employment for the rest of appellant’s life. The sentence
does not