DOMINIC KOFI ANIM vs. THE REPUBLIC [2018]DLCA4632

Date	2018-04-19
Suit No.	CRIMINAL APPEAL NO.H2/21/2017
Citation No.	[2018]DLCA4632

F.G. KORBIEH J.A. (PRESIDING)

AGNES M. A. DORDZIE (MRS.) J.A.

I.O.TANKO AMADU J.A.

AUGUSTINES OBOUR FOR THE APPELLANT

RICHARD GYAMBIBY (SSA) FOR THE REUPUBLIC/RESPONDENT

[2018]DLCA4632
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >DOMINIC KOFI ANIM <o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC <o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</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:0in 0in 1.0pt 0in">

CRIMINAL APPEAL NO.H2/21/2017&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: 19TH APRIL, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AUGUSTINES OBOUR FOR THE
APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

RICHARD
GYAMBIBY (SSA) FOR THE REUPUBLIC/RESPONDENT<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:0in 0in 1.0pt 0in">

F.G.
KORBIEH J.A. (PRESIDING), AGNES M. A. DORDZIE (MRS.) J.A., I.O.TANKO AMADU J.A.<o:p></o:p>

</div> <div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

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

</div>F.G. KORBIEH, J.A.<o:p></o:p>The
appellant herein and two others were tried in the circuit court on two counts
of conspiracy to commit crime, to wit, robbery and robbery respectively. He and
the two others all pleaded not guilty to the charges and were therefore given a
full trial at the end of which they were found guilty and sentenced to various
terms of imprisonment. The appellant and the second accused person were each sentenced
to 20 years I.H.L. on count one and 30 years on count two and the sentences
were to run concurrently. The third accused was sentenced to 20 years I.H.L. on
count one only. All three filed a notice of appeal at the registry of the High
Court against the “whole decision” but complained that the sentence imposed on
them was too harsh. The relief they sought from the High Court was for the
sentence to “be mitigated as the Appellants are first offenders.” <o:p></o:p><o:p>&nbsp;</o:p>In his
judgment delivered on the 22nd day of December, 2016, the learned
trial High Court judge, after reviewing the facts of the case and summarizing
the submissions of counsel for the appellants, proceeded to interpret the
relevant law in the following manner as summarized: he cited the case of Kwaku Frimpong aka Iboman v. The Republic [2012]
SCGLR 328 and said that where the minimum sentence was prescribed by law,
it superseded the consideration of the accused person being a first offender. He
also cited the case of Robertson v. The
Republic [2015] 80 GMJ 33 SC where it was said that sentencing is
discretionary and whenever discretion is exercised an appellate court had no
just cause to interfere with the exercise of the discretion but that an
appellate court would interfere with a sentence that was manifestly excessive
having regard to the circumstances of the case or where the sentence was wrong
in principle. He surmised that in passing sentence, a judge was under a duty
not to exercise power in a capricious manner or pronounce a sentence that was
harsh and excessive; but to determine what was harsh or excessive, due regard
had to be had to the offence, the mode of its commission and the lack of
remorse shown as well as the need to send the right signal to other people of
the type of the appellant. Having taken all these matters into consideration,
the learned judge held the view that he saw nothing wrong with the sentences
passed on the appellant and his colleagues and so decided to dismiss their
appeal. The 1st appellant alone then launched this appeal on the
following ground.<o:p></o:p>&nbsp;&nbsp;&nbsp; “The sentence is excessive and too harsh.”<o:p></o:p>We will
commence our consideration of the appeal by going straight to the arguments for
and against the appeal. We however note that counsel for the appellant
presented his case as if he was still in the court of first appeal and not
appealing against the judgment of first appellate court. In his attempt to
justify why he thinks the sentence is excessive and too harsh, he argued that
the learned appellate judge, having reheard the case, as he was enjoined by the
law to do, should have realized that the charge of robbery leveled against the
appellant was bad in law because Regina Asantewaa, the owner of the stolen
items, was not even at the scene of the crime and so could not have been robbed,
given the fact that robbery can only be perpetuated on a person who is within
physical range to be robbed. He also contended that the evidence adduced at the
trial was at variance with the charge and so the charge ought to have been
amended and the appellant asked to plead afresh. This, he argued, would have
accorded with section 176 of the Criminal and Other Offences (Procedure) Act,
1960 (Act 30) which deals with “Variance between charge and evidence”. In his
view, since the prosecution failed to do this, and the two courts below found,
as a fact that the appellant committed robbery, the law allows this Court to set
aside the concurrent findings of the two courts below under the authority of Tetteh Samadzi v The Republic [2017]110 GMJ
98 SC. Counsel therefore argued that the worst the appellant should have
been charged with was the lesser crime of stealing, given his own evidence in
court. Counsel continued further that the anomaly was fatal to the sentence. He
went on to say that whereas the principle of sentencing enunciated in the case
of Kwashie v. The Republic [1971] 1 GLR
70 might suggest that there was no limit of sentences likely to be imposed,
in Kwaku Frimpong aka Iboman v. The
Republic (supra) the Supreme Court said that whilst the length of the sentence ought to be commensurate with
the degree of revulsion of law abiding citizens towards the crime, peers and
younger persons of society ought to have an opportunity to observe the l</main>