ISAAC KOFI TETTEH vs. THE REPUBLIC [2016]DLHC11659

Date	2016-12-16
Suit No.	CC NO: CR 389/16
Citation No.	[2016]DLHC11659

HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU

APPELLANT IN PERSON (UNREPRESENTED)

NO APPEARANCE FOR THE REPUBLIC

[2016]DLHC11659
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													<main id="main" class="content" style="min-height: 60rem" >ISAAC KOFI TETTEH<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;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CC NO: CR 389/16&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;DATE: 16TH DECEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT
IN PERSON (UNREPRESENTED)<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;">

NO APPEARANCE FOR THE REPUBLIC<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;
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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 by
the Appellant for mitigation of the sentence imposed on him by the Circuit
Court, Accra on 18th July 2011.<o:p></o:p>The Appellant was tried with
two others on a charge of possession of narcotic drugs without authority and
contrary to section 2 (1) of PNDCL 236. The court found them guilty of the
offence and sentenced them to twelve years imprisonment with hard labour.<o:p></o:p>The Appellant being one of
the convicts is before this court praying for mitigation of the sentence
imposed on him pursuant to leave granted him on 5th May 2016 to appeal.<o:p></o:p>It can be gleaned from the
judgment of the court below that the Appellant together with two others were
arrested in a house at Avenor in Accra during an exercise which was undertaken
by a combined team of police, military and NACOB officials on 16th March 2016.<o:p></o:p>The team in the operation
found sacks of cannabis sativa with the accused persons in room they occupied
in the house during the operation and arrested them. They were charged with
possession of narcotic substance contrary to section 2 (1) of PNDC Law 236.<o:p></o:p>The Appellant who is
unrepresented in this appeal relies on the processes he has filed and states
that he regrets his action and it is out of deep remorse that he is praying the
court to reduce the sentence imposed on him. He stated further that he is a
first time offender who has learnt a bitter lesson in prison custody. He is
married with children of school going age and his incarceration has affected
the children’s education negatively.<o:p></o:p>It must be noted that the
Attorney General’s office has been served the process filed by the Appellant
but there has been no response from the Attorney General’s office, this is an
indication that the Republic through the Attorney General does not oppose this
appeal for mitigation of sentence.<o:p></o:p>The Judge in the Circuit
Court, Accra was within his jurisdiction and authority in sentencing the
Appellant and the others to twelve years imprisonment in hard labour and
therefore the sentence was lawful.<o:p></o:p>It is however, trite
learning that in dealing with an appeal of this nature the court is under
obligation to satisfy itself as to whether there were any mitigating factors
which the trial court took or failed to take into consideration before imposing
the sentence.<o:p></o:p>If the record shows that the
Judge took all the mitigating factors into consideration before imposing the
sentence, then his discretion in imposing the sentence can be seen as having
been properly exercised; and an appellant court in the absence of any special
circumstances would not want to interfere with such a sentence. If however, the
record does not reveal that the Judge took any such mitigation circumstances
into consideration, then the Appellate court as this court will find out
whether the said mitigating factors were such that if the trial Judge had
adverted his mind to them, he would probably not have imposed the said severe
sentence (See Asaah V The Republic [1978] GLR 1-4)<o:p></o:p>From the record before this
court, it seems the court below did not take into consideration all the
mitigating factors that should have been considered before sentencing.<o:p></o:p>The Appellant’s person
circumstances were not taken into consideration before sentencing. The Appellant
has a wife and children of school going age who are in school and who are
affected by the incarceration of the Appellant who has no previous conviction
or breaches of any bond. The education of the Appellant’s children is aid to be
negatively affected, an indication that the Appellant is the bread winner of
the family and his absence in the family is affecting the family, especially
the education of the children.<o:p></o:p>I think given the
circumstances of this case the sentence of twelve years imposed on the
Appellant was harsh. If the court below had taken into consideration the
mitigating factors mentioned above may be the sentence imposed on the Appellant
would have not been as high as twelve (12) years.<o:p></o:p>The court below relied more
on the aggravating factors as against the mitigating factors, a balance would
have been more appropriate even though the sentence was lawful.<o:p></o:p>To mete out punishment the
court below is required to take into consideration all the necessary mitigating
factors. The need to promote the reformative objective of punishment should be
considered in matters of this nature so that a young energetic offender such as
the Appellant does not spend all his useful period in life in prison. See Asaah
V The Republic (Supra).<o:p></o:p>On the strength of the fact
that the mitigation factors indicated above were not considered and it is not
shown that the Appellant was given the opportunity to plead mitigation which he
failed to do, and in the spirit of attaining the main objective of punishment
in respect of reforming and not destroying the future of the Appellant I will
reduce the sentence of twelve (12) years imposed on the Appellant to ten (10)
years. A term of ten (10) years imprisonment with hard labour which is the
minimum sentence would be harsh enough to be deterrent and short enough to
satisfy the reformative element in our criminal justice. (See Kwadu V Republic <o:p></o:p>[1971]</main>