MARK ADASE vs. THE REPUBLIC [2016]DLCA8565

Date	2016-11-25
Suit No.	CRIMINAL APPEAL NO. H2/17/16
Citation No.	[2016]DLCA8565

MARFUL-SAU JA (PRESIDING)

IRENE LARBI JA

HENRY KWOFIE JA

AHUMAH OCANSEY FOR THE APPELLANT

[2016]DLCA8565
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													<main id="main" class="content" style="min-height: 60rem" >MARK ADASE<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;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></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;
padding:0cm 0cm 1.0pt 0cm">

CRIMINAL APPEAL NO. H2/17/16&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:
<span lang="EN-GB" style="font-size:10.0pt;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi;mso-ansi-language:EN-GB">25TH
NOV, 2016<o:p></o:p>

</div>COUNSEL:<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">

AHUMAH OCANSEY 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:0cm 0cm 1.0pt 0cm">

MARFUL-SAU JA (PRESIDING),
IRENE LARBI JA, HENRY KWOFIE JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA:- The
appellant in this appeal together with another were tried on two counts of
conspiracy to commit robbery and robbery contrary to section 23 (1) and section
149 of the Criminal Offences Act, 1960 (Act 29 ), as amended by Act 646 of
2003. On the 21st November 2013, the appellant was convicted by the High Court,
&nbsp;Accra and sentenced to 20 years. On the
15th of February, 2016, this court upon an application granted the appellant
leave to appeal against his sentence. By the Notice of Appeal filed on the 19th
February 2016, appellant grounded his appeal against the sentence on the fact
that no life or property was lost as a result of the robbery; that the appellant
was a youth of 30 years old at the time the crime was committed and also that
appellant was a first offender. Counsel for the appellant also attached a
medical report dated 14th December 2015, to his written submission indicating
that the appellant is suffering from a disease known as Lipoma of the left
upper arm and needs to undergo surgery.<o:p></o:p>The
brief facts of this case are that on the 17th of December, 2010, the appellant
and another convict, using a pistol attacked the complainant one Emmanuel Berko
in front of his house at the Coastal Estates, Accra. The appellant managed to
rob the complainant of his Mercedes Benz saloon car with his 5 years old son
sleeping at the back of the car. After driving a distance away, appellant and
the other convict took the child from the car, put him by the road and drove
away. The complainant got a motor rider and gave the robbers a hot chase. The
robbers were stuck in traffic so they came out of the car and took to their
heels. The appellant was arrested after his attempt to fire at one Kwesi Asare
failed. The appellant later led the Police to arrest the other convict David
Tsegah who is the brother of the appellant. The Police upon a search discovered
a locally manufactured pistol and two AAA cartridge from the room of David
Tsegah.<o:p></o:p>The
record of appeal indicates that even though the appellant confessed the crime
of robbery in his caution statement, he denied the offence at the trial, but he
was convicted at the end of the trial on the evidence. The appellant's appeal
as indicated is against the sentence of 20 years imposed by the trial court. By
this appeal, appellant is urging this court to reduce the sentence because no
life or property was lost as a result of the robbery and also for the reason
that he was a first offender of 30 years at the time the crime was committed.
With a medical report from the Police Hospital, appellant seeks to demonstrate
that he is a sick person. The record however reveal that apart from the car
which was recovered the complainant lost cash and mobile phones all assessed at
GH₵ 1,070.00 as a result of the
robbery. From the written submission,&nbsp;
what counsel for appellant has sought to do is to mitigate the sentence
imposed by the trial court.<o:p></o:p>In Kwashie&nbsp; v. The
Republic (1971) 1GLR 488, this court dealing with the 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>In
this appeal we are of the opinion as revealed by the record that the crime was
premeditated and the appellant committed the crime in a violent manner in that
he and the other convict all had pistols on them and indeed did seize the Benz
car at gun point. They drove the car away with the 5 years old son of the
complainant in the car. They recklessly put the child by the road side and
drove away, disregarding any harm or injury that could have happened to the
little boy. We find the appellant as an adult and not an extreme youth, as by
the record he was 30 years old when the offence was committed. From the
judgment of the trial court appellant pleaded for mercy and the trial court
considering the evidence as adduced on record imposed the 20 years custodial
sentence. We are convinced that the trial court was right in imposing the
sentence of 20 years and for that matter no miscarriage of justice has been
suffered by the appellant.<o:p></o:p>In Isaac Amaniampong &nbsp;v. The Republic (2015) G.M.J 105, Rose Owusu,</main>