KWASI BREKUM vs. THE REPUBLIC [2016]DLHC11662

Date	2016-02-17
Suit No.	SUIT NO: BCRA 142/15
Citation No.	[2016]DLHC11662

HIS LORDSHIP JUSTICE ALHAJ ABDULLAH IDDRISU

APPELLANT PRESENT (UNREPRESENTED)

LILY ATUTIGA (FOR THE REPUBLIC/RESPONDENT)

[2016]DLHC11662
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													<main id="main" class="content" style="min-height: 60rem" >KWASI BREKUM<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">SUIT NO: BCRA 142/15&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;DATE: 17TH FEBRUARY, 2016<o:p></o:p>

</div>COUNSEL<o:p></o:p>APPELLANT
PRESENT (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;">

LILY ATUTIGA (FOR THE 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;
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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 an appeal against
sentence. On a plea of not guilty to a charge of defilement of a female under
the age of sixteen years contrary to Section 101 of Act 29/60 as amended by
Section 11 of Act 554/98, the Appellant was taken through trial, convicted and
sentenced to fifteen years imprisonment in hard labour and in addition ordered
to pay an amount of GH₵300 to the victim to defray
part of her medical bills.<o:p></o:p>The Appellant who is
unrepresented in arguing his appeal stated that the sentence imposed was harsh
and he being a first time offender should not have been given the harsh
sentence.<o:p></o:p>The grounds of appeal are
that the Appellant has regretted his action and out of remorse he is praying
the Court to reduce the sentence. That his life has undergone a significant
positive transformation and he was to keep away from all forms of crime in
future and that he has learnt his lessons during the period he has so far
served in prison since his arrest.<o:p></o:p>Learned Assistant State
Attorney in her reply referred to the fact that the Appellant was tried in a
court of competent jurisdiction after he pleaded not guilty. She stated that
the punishment for defilement is pegged between 7-25 years imprisonment which
gives a wide discretion to the trial court in passing sentence because the law
foresees the variation of the facts and the circumstances of each case. It is
counsel’s contention that the sentencing authority is encouraged to consider
several mitigating and aggravating factors before passing sentence. In the case
of conviction for defilement aggravating factors will include how young the
victim was, the age gap between the victim and the accused, the degree of
injury suffered by the victim. Counsel emphasized more on the aggravating
factors and was therefore not surprised that the trial court imposed a sentence
of 15 years on the Appellant.<o:p></o:p>In dealing with an appeal of
this nature, the court has the duty to find out whether there were any
mitigating factors which the trial court took into consideration or failed to
take into consideration. If the record reveals that the court took all the said
mitigation factors into consideration before imposing sentence then the court’s
discretion can be said to have been properly exercised and in the absence of
any special circumstances, the appellate court will be slow to interfere with
such a sentence. If however the record does not show or reveal that the trial
court took into consideration any such mitigating factors then the Appellate
court will find out whether the said mitigating factors were such that if the
trial court had adverted its mind to them it would probably have imposed the
said severe sentence. See Asaah alias
Asi V The Republic [1978] GLR1. <o:p></o:p>It must be noted that at the
trial court the Appellant was unrepresented by any counsel who would have been
duty bound to draw the courts’ attention to any mitigating factors. The lack of
or absence of counsel for the Appellant meant that the trial court ought to
have examined the facts himself and anything connected thereto and decide for
himself whether the case merits any lenient consideration.<o:p></o:p>In the instant case the
record does not reveal that any such examination was carried out in respect of
the sentence that was imposed on the Appellant.<o:p></o:p>As can be seen from the
submission of counsel for the Respondent, the trial court seemed to have
concentrated more on the aggravating factors at the expense of any mitigating
factor.<o:p></o:p>The record does not show
that the trial court took into consideration any mitigating factor which it
ought to have done.<o:p></o:p>It would be useful to look
at the reformative aspect of the criminal justice system so that people are not
made to become hardened. I will take into consideration the reformative nature
that the justice system aims at in this case. It would also be useful to take
into consideration the scale of sentencing where first time offenders are
involved and minimum sentence is imposed and when the convict does it again
then the punishment goes up.<o:p></o:p>This being the first time
the Appellant has had a brush with the law it would be useful if a reasonable
sentence is imposed on the Appellant which will be in line with the thinking of
the law maker in punishing first time offenders. Sentencing in matters of this
nature should be harsh enough to reform the accused person and not create
grounds for hardness, it should be so long as not to compromise the objective
of reformation. It seems from the record, that no account was taken in relation
to mitigation. The court below did not take into consideration any mitigating
factors. I will therefore reduce the sentence imposed on the Appellant from
fifteen (15) years to nine (9) years. Nine (9) years will be long enough to
punish the Appellant for committing the offence and it would be deterrent
enough to deter future offenders from committing the same offence. It would
also be appropriate for reformation of the Appellant. See Kwadu V The Republic [1971] 272. <o:p></o:p>Sentence is reduced from 15
years to 9 years.<o:p></o:p>&nbsp;(SGD)<o:p></o:p>ALHAJ
JUSTICE ABDULLAH IDDRISU<o:p></o:p>

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