ATILAC INANC vs. THE REPUBLIC [2016]DLHC11604

Date	2016-02-08
Suit No.	CC NO. BCRA 108/15
Citation No.	[2016]DLHC11604

HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU

TAWIAH YOYOWAH AND GAG COBBINA (FOR APPELLANT)

JOSHUA SACKEY (FOR THE REPUBLIC/APPLICANT)

[2016]DLHC11604
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													<main id="main" class="content" style="min-height: 60rem" >ATILAC INANC<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<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;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CC NO. BCRA 108/15&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: 8TH FEBRUARY, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>TAWIAH YOYOWAH AND GAG COBBINA (FOR
APPELLANT)<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;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;tab-stops:164.75pt;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JOSHUA SACKEY (FOR THE
REPUBLIC/APPLICANT)<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU<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="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;tab-stops:164.75pt;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;This
is a criminal appeal for mitigation of sentence by the Appellant.<o:p></o:p>The
court below tried the Appellant on the charges of defrauding by false pretences
contrary to Section 313 of Act 29 and forgery of official document contrary to
Section 158 of act 29 and he was convicted on both counts and sentenced to a
term of six years IHL on each of the counts to run concurrently on 12th July,
2013.<o:p></o:p>The
Appellant is not challenging his conviction he is praying for mitigation of the
sentence.<o:p></o:p>The
brief facts of the case that led to the prosecution of the Appellant and his
subsequent conviction and sentence were as follows:<o:p></o:p>Complainant
is a computer programmer resident at Kwashieman, Accra whiles accused is a
Turkish national lodging at Phantoma Hotel, Abeka, Accra. During the month of
June 2010, the complainant was introduced to accused by one Bright as someone
who could secure an American visa for the complainant. Accused during a meeting
with the complainant assured him that he could secure the visa if the
complainant could pay $14,000.00. The complainant agreed and handed over his
Ghanaian passport No. H2215479, to the accused for the processes. On 1/10/10,
accused called the complainant and handed over his Ghanaian passport to him
with an American visa embossed on page 5 and demanded for&nbsp; his money. The complainant then gave GH₵10,000.00
to the&nbsp; accused and asked him to come on
4/10/10 for the balance. On 4/10/10 the complainant went to Ghana Immigration
Service to check the authenticity of the visa where he was told the visa
was&nbsp; fake. The complainant reported the
case to the police leading to the arrest of the accused. Accused admitted the
offence in his caution&nbsp; statement and
added that he gave the said amount to one Akim but could not lead the police to
his arrest. Police investigations were extended to American Embassy, where it was
revealed that the visa&nbsp; in question was
issued to a former Minister of State in the person of George Yaw Gyan Baffour.
After investigations, accused was charged with the offence and put before this
honourable court.<o:p></o:p>Based
on the charges the Appellant was taken through trial, found guilty on all
counts, convicted and sentenced to six years on each of the counts to run
concurrently and a deportation order was made for the Appellant to be deported
to his country, Turkey after serving the sentence.<o:p></o:p>Counsel
for the Appellant in his submission stated that the Appellant is a first time
offender, a foreign national who is remorseful for getting himself involved in
the offence for which his family back at Turkey is suffering. It is counsel’s
contention that the Appellant has been in custody for an aggregate of thirty
six months and has suffered enough with his health failing him and therefore
prays for remittal of the remainder of the sentence. That the Appellant’s
absence from his family in Turkey has put his family in deep trouble. Counsel
prayed the court to take the above factors into consideration and release the
Appellant. Counsel for the Republic opposed the Appellant’s appeal for
mitigation of sentence and argued that the sentence that was handed down by the
court below was not harsh because the sentence of six years was within the
limit allowed by the law as reflected in Section 296(5) of act 30. That the
court below took into consideration the amount of money the Appellant defrauded
the complainant which is GH₵10,000.00 out of which the
Appellant paid only GH₵1,000.00. It is counsel’s contention that the
Appellant should not be allowed to derive any benefit from his fraudulent deed.<o:p></o:p>Counsel
submitted that there is no documentary proof that the Appellant is unwell and
this submission of the Appellant should be disregarded and that the Appellant
has no fixed place of abode in Ghana and keeping him in Ghana will pose a
security risk to the nation and held the view that the deportation order should
not be revoked.<o:p></o:p>It
is importation to note, as was submitted by counsel for the Republic that the
Judge at the court below in sentencing the Appellant for six years on each of
the counts to run concurrently was with in her jurisdiction and authority and
thus acted lawfully.<o:p></o:p>I
however hold the view that in the circumstances of this case the sentence of
six years on each of the counts is harsh. Counsel for the Appellant advanced
reason why the Appellant is appealing for mitigation of the sentence to the
effect that the court below did not take into consideration the mitigation
factors he mentioned above&nbsp; before
arriving at the sentence that was imposed on the Appellant who&nbsp; has seen been remorseful.<o:p></o:p>From
the record of appeal before this court certified by the Registrar of the court
below, it is not shown that the Appellant was asked to plead mitigation. It is
not shown from the record that</main>