KWAME ASARE vs. THE REPUBLIC [2016]DLHC11661

Date	2016-05-03
Suit No.	CC NO: BCRA 165/2015
Citation No.	[2016]DLHC11661

HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU

GEORGE ASAMANEY (FOR THE APPELLANT)

AMERLEY AGYEMANG (FOR REPUBLIC/RESPONDENT)

[2016]DLHC11661
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													<main id="main" class="content" style="min-height: 60rem" >KWAME ASARE<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;">

</div>COUNSEL<o:p></o:p>GEORGE
ASAMANEY (FOR THE 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;">

AMERLEY AGYEMANG (FOR REPUBLIC/RESPONDENT)<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;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
against sentence. The Appellant was charged with the offence of robbery
contrary to Section 149 of the Criminal&nbsp;
Offences Law, Act 29.<o:p></o:p>He pleaded guilty
simplicitor, convicted on his own plea and sentenced to 30 years IHL.<o:p></o:p>The grounds of appeal are
that<o:p></o:p>1.
The sentence is harsh and unconscionable in all the circumstances of the case
and or is unlawful.<o:p></o:p>2.
That as a first offender the court ought to have considered same in mitigating
the sentence.<o:p></o:p>The Appellant therefore
prays that the sentence be reduced having regard to the circumstances of the
case.<o:p></o:p>The facts of the case are
that the complainant is a trader at Teshie Tsuiebleoo whilst accused person is
a tattoo designer at Kwame Nkrumah Circle. On the 14/03/14 at about 10:00pm,
complainant who was going to church at Greda Estate Teshie, on reaching Teshie
fertilizer all of a sudden she was attacked by the accused person who ordered
her to surrender all her belongings. Complainant by then was helpless and all
efforts made to run away from the accused person failed and she begun to cry
for help but accused person over powered her and violently snatched her lady’s
bag valued at GH¢20.00, a Nokia mobile phone valued at GH¢100.00, two yards of
cloth valued GH¢20.00 and a cash sum of GH¢39.00 and bolted away. But accused
who was not lucky enough was arrested by a passer-by and the items retrieved.
Accused was later handed over to the police for further investigations. <o:p></o:p>Investigations revealed that
accused person normally hides himself at that particular spot, especially
during light off, terrorized people around. After investigation the accused
person was charged before the Court below.<o:p></o:p>Based on the facts the
Appellant was charged with the offences of robbery contrary to section 149 of
the Criminal Offences Act 1960, Act 29.<o:p></o:p>Counsel for the Appellant in
making his submission stated that their appeal is basically on the sentence.
That the sentence of 30 years was harsh having regard to the fact that the
accused person, the Appellant did not waste the court’s time at all. On the day
he was put before the court he admitted that he had done something wrong and
prayed for forgiveness. That the items in question was the lady’s hand bag
costing GH¢10.00 a Nokia mobile phone costing GH¢100.00 and cash the sum of
GH¢39.00. The Appellant according to counsel is a young first time offender
aged 22years and sentencing him to thirty (30) years means he will be coming
back at fifty and over years with his useful life exhausted in incarceration.
That the Appellant did not use any weapon.<o:p></o:p>The Republic did not
challenge or oppose the appeal and left the matter to the discretion of the
court.<o:p></o:p>The Prosecution did not
offer any appreciable assistance to the court in this matter but this will not
cloud the court.<o:p></o:p>It is 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 mitigation 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 mitigation factors into consideration before imposing the
sentence then his discretion in imposing the sentence can be seen as having
been properly exercised; and an appellate 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.I find that the
Judge at the Circuit Court where the trial took place acted within his
authority and jurisdiction when he sentenced the Appellant to thirty years
after his conviction.<o:p></o:p>From the records before the
court, the court below however, did not take into consideration all the
mitigating factors that should have been considered before sentencing. It is
not shown on the record from the Registrar of the Circuit Court, Accra.<o:p></o:p>The Appellant a young
offender aged about twenty-two years, he is not known to the court, he is a
first time offender. He was offered opportunity to plead for mitigation but the
court below did not consider all the mitigation factors. The items stolen were
retrieved and given back to the complainant and no weapon or missile was
employed.<o:p></o:p>If the court below had taken
into consideration the above mentioned mitigation factors may be the sentence
imposed on the Appellant would not have been as high as thirty (30) years. To
mete out punishment the court below is required to take into consideration the
mitigating factors. <o:p></o:p>The need to promot</main>