Justice Yaw AppauJustice of the Court of Appeal

• RELEVANT ACTS AND LAWS THAT SERVE AS GUIDANCE

• The Courts Act, 1993 [ACT 459] as amended.

• The Criminal Offences Act, 1960 [ACT 29] as amended.

• The Criminal and Other Offences (Procedure) Act, 1960 [ACT 30] as amended.

• The Children’s Act, 1998 [ACT 560].• The Juvenile Justice Act, 2003 [ACT 653].• Fines (Penalty Units) Act, 2000 [ACT 572] as

amended by the Fines (Penalty Units) (Amendment) Instrument, 2005 [L.I. 1813].

• The Constitution of the Republic of Ghana, 1992; i.e. The Fourth Republican Constitution.

• *Indispensable Textbook – “PRACTICE & PROCEDURE IN THE TRIAL COURTS & TRIBUNALS OF GHANA”, by S. A. Brobbey, JSC.

• **Section 43 of Act 459 is on the criminal jurisdiction of the Circuit Courts. It provides; “A Circuit Court has original jurisdiction in criminal matters other than treason, offences triable on indictment and offences punishable by death.”

• {Note the Courts (Amendment) Act, 2002 [Act 620]}

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RECONCILIATION IN CRIMINAL CASES

Section 73 of the Courts Act, 1993, [ACT 459] empowers the Circuit Court to promote reconciliation when the offence is not a felony and not aggravated in degree, on payment of compensation or by other terms approved by the court.

 

• Punishment is considered or regarded as a logical sequel to the infraction of social or legal norms. It is the basis of sentencing. In effect, sentencing is the legal means of effecting punishment for wrong done.

• THEORIES OF PUNISHMENT• RETRIBUTIVE• UTILITARIAN• INTEGRATIVE

RETRIBUTIVE

The proponents of retributive form of punishment postulate that justice demands that the offender must be made to suffer in proportion to the harm that has been caused to society. It has its roots in Mosaic Law. See Exodus 21 versus 23 – 25. Under retribution falls restitution and vindictive theories.

Practice, however, has shown that the reasoning behind this theory has no sound empirical basis. The fact is that people continue to commit murders despite death sentences that are passed on such offenders.

Again, people continue to deal in narcotics or commit rapes and defilements despite the harsh or severe sentences that are meted out to offenders.

• Under utilitarianism fall the theories of preventive, deterrence and rehabilitation/reformation.

• The basis of these theories is; i. To prevent the offender from repeating or

committing similar crimes while suffering punishment. Examples: -a. The imprisonment of a thief will prevent him from

further stealing within the period of incarceration.b. The disqualification of a reckless driver from driving

within a specified period of time will prevent him from committing further reckless or careless driving.

ii. To deter offender and others of like mind from committing similar offences. Example: -

The confiscation of property acquired from drug activities as pertains under P.N.D.C. Law 296 to deter others who think they can make wealth from such practices to think twice about such ventures.

iii. Protagonists of the rehabilitation/reformation theory say punishment can have meaning only if it results in the reformation of the offender. This pertains particularly to juvenile or young offenders. Note the provisions in the Juvenile Justice Act, 2003 [ACT 653].

• INTEGRATIVE• This theory combines the good in both

retributive and utilitarian theories.

KINDS OF SENTENCES

DEATH IMPRISONMENT FINES ABSOLUTE OR CONDITIONAL DISCHARGE PROBATION BOND; i.e. RECOGNIZANCE FOR KEEPING

THE PEACE OR TO BE OF GOOD BEHAVIOUR DETENTION

• DEATH: The Circuit Court has no jurisdiction to impose or pass a death sentence.

• IMPRISONMENT• When an offence is described as a 1st degree Felony, it carries a maximum sentence of Life imprisonment. A Circuit Court has jurisdiction to try offences that are 1st degree felonies.

When an offence is described as a 2nd degree Felony, it carries a maximum sentence of ten (10) years imprisonment. A Circuit Court has jurisdiction to try 2nd degree felonies.

• When an offence is described as a Misdemeanour, it carries a maximum penalty or sentence of three (3) years imprisonment. A Circuit Court has jurisdiction to try offences that are misdemeanours.

• There are other statutes or enactments creating specific offences that also carry sentences of imprisonment. Examples are Narcotic offences under P.N.D.C. Law 296, Traffic Offences, Offences like intermeddling under the Intestate Succession Law, etc.

• Note that the Juvenile Justice Act, 2003 [ACT 653] has amended sections 295, 300(4), 314, 367(f), 340-351, 370-393 and parts of section 414 of Act 30, which relate to juvenile and young offenders.

• Section 32(1) of Act 653 is categorical that; “A juvenile offender shall not be sentenced to imprisonment by a juvenile court or a Court of summary jurisdiction”. This section has amended section 314 of Act 30.

• ***Note also Section 341 of Act 30 (1) that appears to give exclusive jurisdiction to District Courts sitting as Juvenile Courts to hear and determine cases involving juveniles then subsection 1(b) of section 341 and sections 342 and 343 on remittance of cases and determination of age when accused perceived to be a juvenile. All these sections have been amended by sections 18 and 19 of Act 653.

FINES• Fines, like imprisonment, are often spelt

out by the statute creating the offence. They are expressed in penalty units by the Fines (Penalty Units) Act, 2000 [ACT 572].

• The First Schedule of Act 572 was later amended by the Attorney – General by legislative instrument upon powers conferred on him by section 2 (2) of the Act. This amendment is the “Fines (Penalty Units) (Amendment) Instrument, 2005 [L .I. 1813]”.

• By this amendment, one penalty unit, which used to be GHc2.00, is now GHc12.00. The fine may be additional to or in lieu of imprisonment.

• **NOTE! Article 160 of the 1992 Constitution provides that FINES form part of the Consolidated Fund. No portion of fines can therefore be put to any use whatsoever by the trial court. This means that part of fines cannot be used to pay compensation. If compensation has to be paid, it has to be pronounced upon in a separate order.

• Section 318 of Act 30 provides that the Court can order fines to be paid at a certain date after pronouncement or to be paid by installments.

• Note the implications of imposing fines without specifying alternative prison sentence when there is non-payment – Section 297(3) then Ss 316 – 322 of Act 30.

ABSOLUTE OR CONDITIONAL DISCHARGE

Section 353 of Act 30 provides that where after conviction on an offence the sentence of which is not fixed by law and the court is of the view that having regard to the nature of the offence or the character of the convict, imprisonment or probation or fine is not appropriate, an order may be made discharging him absolutely either with a caution or conditionally.

PROBATION

• Sections 354 - 369 of Act 30 and then Sections 31 & 35 of Act 653.

• Probation normally comes into play when the person convicted is either a juvenile or a young person. It applies mostly to juvenile offenders. Section 354(3) is explicit that; “the Court shall not make a probation order where the offender is above the age of seventeen (17) years unless the offender expresses his willingness to comply with the provisions of the order.”

• Such offenders are normally placed under the supervision of the Department of Social Welfare and the officers who undertake such supervisions are called Probation Officers.

Section 356 of Act 30 states that, where a person is absolutely or conditionally discharged or is placed by a probation order under the supervision of a probation officer, the order shall be without prejudice to the powers of the court, under any law for the time being in force, to order the offender to pay costs and such damages for injury or compensation for loss as the court may think reasonable.

BOND – (Recognizance for Keeping the Peace or to be of Good Behaviour)

• Sections 22 – 31 of Act 30 applies in the case of persons who have not been convicted and section 299 applies in the case of a convict.

• In the case of a convict, 6 months is the maximum imprisonment that can be meted out to a convict who has breached the bond or recognizance order. See the cases of FOFIE v THE REPUBLIC [1978] GLR 199 @ 204 and BATSUA v THE REPUBLIC [1978] GLR 78.

• In the Fofie case, the accused was sentenced to three months’ IHL and in addition bonded over to be of good behavior for a period of two (2) years or in default, one (1) year IHL. On appeal, the 1 year IHL in default was held to be illegal.

• In the Batsua case, the accused was sentenced to 2 years IHL. He was also fined c150.00 or in default 9 months IHL. He was also ordered to enter into a bond for c400.00 with a surety to be of good behaviour for 2 years after his sentence or in default, a fine of c200.00 or eleven months IHL. On appeal, it was held by the High Court that section 299 of Act 30 did not empower a court to impose a fine should a convict fail to enter into his own recognizance for keeping the peace with or without sureties.

• The court held further that on failing to execute the bond the only remedy provided by the section was imprisonment for a term not exceeding 6 months.

• The order of recognizance for keeping the peace may lawfully be in substitution for, or in addition to, any punishment imposed by the court. The order for entering into a recognizance or a bond is therefore a form of sentence.

DETENTION

• Section 375 of Act 30 on Detention orders has been amended by the Juvenile Justice Act, 2003 [ACT 653].

• Section 46 of the Act is on the Duration of detention: -• 3 months for a juvenile offender under age 16.• 6 months for a juvenile offender above 16 but

under 18 years.• 24 months for a young offender of or above 18

years of age.

• A juvenile offender shall be detained in a junior correctional centre while a young offender shall be detained in a senior correctional centre.

• **BUT, before a detention order is made, the court shall satisfy itself that a suitable place is available for the juvenile or young offender at a centre. The period of remand shall be taken into consideration when making the order just as the period of incarceration is taken into consideration when passing sentence on a convict.

• Also note that a juvenile or a young offender shall not be detained in an adult prison. Please, note the definitions of a juvenile, a juvenile offender, a young person and a young offender under section 60 of Act 653.

• **A juvenile is a person who is under 18 years of age.

• **A juvenile offender is a juvenile who has been convicted of an offence for which the court may impose a sentence of imprisonment for one month or upward without the option of a fine.

• **A young person is a person who is 18 years or above 18 years but under 21 years.

• **A young offender is a young person who has been convicted of an offence for which the court has power to impose a sentence of imprisonment for one month or upwards with the option of a fine.

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• SPECIAL SENTENCING POWERS OF THE COURT

• Section 162 of Act 30 provides that, where an accused person is found guilty of an offence, the Court may, in passing sentence, take into consideration any other charge then pending against the accused if the accused admits the other charge and desires it to be taken into consideration and if the prosecutor of the other charge consents.

• Also, note enhanced sentence for persons with previous convictions. Sections 300 of Act 30 and 48(4) of Act 459.

• See also sections 394-398 on Conviction on Licence.

• Committal to a higher court for sentence – Section 178 of Act 30.

SPECIAL SENTENCING POWERS OF THE COURT • Committal by a District court to a Circuit court for

sentence. Cases to note: - AKAKPO v THE REPUBLIC [1974] (Practice Note) 1 GLR 65; Convict committed to the Circuit Court for enhanced sentence without first inquiring whether alleged previous convictions were true. Duty of Circuit Court to ascertain whether conviction was proper.

• REPUBLIC v OSEI [1975] 1 GLR 153 {Convicts on stealing with previous convictions of stealing remitted to the High Court instead of the Circuit Court for enhanced sentence – HELD: High Court had no jurisdiction.

• Habitual Criminals – The Punishment of Habitual Criminals Act, 1963 [ACT 192]. To commit to High Court for sentence – This Act is meant for habitual criminals only. See AIKINS @ MENSAH v THE STATE [1966] GLR, 170 – SC. Section 4 of Act 192 repealed section 402 of Act 30.

PUNISHMENTS NOT TO BE IMPOSED BY CIRCUIT COURTS

• Death sentence• Sentencing to prison of convicts below 18

years.• Corporeal punishments.• Sentence of community service.• Punishment under sharia/mosaic law or

customary law like banishments, purchase of sewing machines, panties, fowls during Christmas, etc.

• Suspended sentences aside of those involving the payment of fines within a specified period.

PRINCIPLES OF SENTENCINGThe principles or factors to be considered before passing sentence are varied.

However, the major ones are the “Four (4) C’s” namely;

The CourtThe CrimeThe Criminal, andThe Community A. THE COURTPrescription by statute.Every sentence to be imposed by a court must be sanctioned by or traceable to

some statute, otherwise, it will be illegal. Article 19(11) of the constitution provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed in a written law. The only exception is punishment for contempt by a Superior Court. See Article 19(12).

Where the law or a statute has prescribed the precise punishment to mete out to offenders, it is incumbent on the court to act within the strict language of the statute. Example; Section 296 of Act 29 says that the offence of nuisance is punishable by a fine. It is therefore legally wrong to impose a sentence of imprisonment on a person convicted for nuisance. See the case of ADDO v THE REPUBLIC [19740 1 GLR 234. See also the case of TAYLOR v THE REPUBLIC [1976] 2 GLR 1, where a District Grade II Court imposed a sentence of two (2) years when its jurisdiction was limited to one (1) year. See also MENSUO v THE REPUBLIC [1971] 2 GLR 30.

Also Article 19(6) of the Constitution limits the highest sentence to be imposed for any offence to the maximum set by law at the time the offence was committed, not later when sentence is being passed. Article 14(6) of the Constitution however says, when imposing a term of imprisonment, the period which the accused has spent in lawful custody before the completion of his trial must be taken into account.

The period is taken into account before the actual sentence is announced and this should be apparent on the face of the record.

Section 315(2) of Act 30 says; no sentence is to take retrospective effect. It is instructive to note that Article 14(6) of the Constitution provides no authority for imposing a sentence less than the minimum set by statute or to backdate the sentence to be effective from a day before the day the sentence was passed. Every sentence is to take effect from the day it is passed. See the Court of Appeal case of OJO & Another v THE REPUBLIC [1999-2000] 1 GLR 169 @ 170, per Benin, J.A.

ii. Discretion of Court. The court has a wide discretion in imposing sentence so long as the

sentence is within the limit prescribed in the statute creating the offence. See the case of KOMEGBE v THE REPUBLIC [1975] 2 GLR 170 @ 172.

Note! Article 296 of the Constitution on the exercise of discretion. See also the case of SIMONS v COP [1963] 1 GLR 205 on the

meaning of discretion.Objectivity and Uniformity. Discard subjective tendencies without harbouring or exhibiting

anger, hatred or undue pity. Statutes on sentencing provide the minimum and maximum limits of the sentence to be imposed. The appropriate sentence to be imposed should depend on the crime, the convict and the community. The personal feelings of the judge should, as far as humanly possible, be subordinated to these three factors.

Objectivity will ensure some measure of uniformity in sentencing. committed a joint offence.

In the case of ABBOT v THE REPUBLIC [1977] 1 GLR 326, it was held that the courts must endeavour to achieve uniformity in sentencing. In that case, two accused persons were jointly charged with stealing a motorcycle. They were convicted on the charge. However, one was sentenced to 12 months IHL and the other 3 years IHL. On appeal, the sentence of 3 years was reduced to 12 months since they

Record of ConvictionIn all cases, there must be a record of conviction before sentence is

passed. In R v MENSAH [1960] GLR 53, CA, it was held that failure to record conviction before sentence vitiates the entire trial.

Also, in COP v SARPEY & NYAMEKYE [1961] GLR (Part II), SC, it was held that a conviction or finding of guilt is a vital part of a trial and in its absence a sentence cannot be lawfully recorded or carried out.

See also CHIDIA v THE REPUBLIC [1978] GLR 81 and KINI v THE REPUBLIC [1980] GLR 412.

Reasons for judgmentAs a general rule, a court is not bound to give reasons for the sentence

it passes. See HARUNA v THE REPUBLIC [1980] GLR 189 and then KWASHIE v THE REPUBLIC [1971] 1 GLR 488, CA.

There are however, three exceptions to this rule, viz; where a statute requires that reasons be given for the

sentence; where the sentence is extremely high or quite close to the

maximum limit; and where the sentence comes very close to the minimum limit and

thus discloses exceptional leniency. **Also, where the judge opts to apply any of the theories of punishment

discussed above in preference to others, he should give reasons founded on the facts before him.

Consecutive and concurrent sentences: Act 30, ss 302(a) and 303; and sentences with or without hard labour: Act 30, s 296(6) as substituted by Act 261.

Where the accused is convicted on more than one count in one case, the judge must state whether the sentences are to run concurrently or consecutively. All sentences are deemed by law to be consecutive unless it is otherwise directed by the bench that they should run concurrently.

Also, where the sentence is less than three (3) years, it is imperative under section 296(6) of Act 30 as substituted by Act 261 that the court specifies whether it is to be served with or without hard labour.

See the cases of TETTEY SAMADEY @ OSAGYEFO v COP [1963] 2 GLR 400; ADJEI v THE REPUBLIC [1977] 1 GLR 156; BANDA v THE REPUBLIC [1977] 2 GLR 253 and ADOMAKO v THE REPUBLIC [1984-86] 2 GLR 766 on Concurrent and Consecutive sentences.

• B. THE CRIME• The main considerations are the nature of the crime and how the crime was committed.• Nature of Crime• The sentence must fit the crime; i.e. it must be conditioned by the nature of the offence and

the subject matter of the offence. A harsh sentence for a trivial offence is improper and cannot stand on appeal. For example; in KOMEGBE v THE REPUBLIC [1975] 2 GLR 170 @ 172, a sentence of 2 years IHL for nuisance (i.e. making unseemingly noise) and causing damage to property worth c25.00, which was insignificant in value, was deemed to be too harsh and inappropriate. Also in AMOAH v THE REPUBLIC [1971] 2 GLR 72, a fine of c400.00 or in default 2 years for causing damage to a cloth worth only c36.25 was held to be too harsh and inappropriate. In AGYEMAN v THE REPUBLIC [1974] 2 GLR 380, the accused pleaded guilty to assault. Though the assault was unaggravated in nature, he was sentenced to 12 months IHL. This sentence was held to be too harsh on appeal. Even in KUNGUA v THE REPUBLIC [1984-86] 2 GLR 489, a sentence of 3 months IHL for assault was held to be harsh. In R v SISALA [1960] GLR 3 - CA, it was held that it was wrong to pass a more severe sentence on a receiver than the one who committed the crime of stealing. In that case the thief was sentenced to 18 months IHL while the receiver was sentenced to 5 years IHL.

• In the same vein, too lenient a sentence for a serious crime is held to be inappropriate. See the case of REPUBLIC v BOFAH [1968] GLR 620. The accused pleaded guilty to a charge of stealing c2, 014.69. He was only cautioned and discharged. The sentence was held to be too lenient.

• Where the offence is grave, the sentence must be punitive and deterrent or exemplary. It is wrong for a court to impose a huge fine which the convict cannot pay with the sole aim or intention of keeping him in prison. See AMOAH v THE REPUBLIC and KWASHIE v THE REPUBLIC (supra).

• Mode of committing the crime & the level of culpability.• The mode or manner in which the crime was committed and the level of culpability can

either aggravate or mitigate the sentence. For example; premeditation, degree of recklessness, negligence, to consume alcohol or drugs to gain courage for the purpose of committing the crime, etc; are aggravating or mitigating factors in determining the sentence to be passed.

THE CRIMINALThe personal circumstances of the convict must

be taken into consideration in passing sentence. Some of these are:

The age of the convict;First offender or otherwise;Previous conviction (must be in relation to

a similar offence); Good character (i.e. where convict shows

remorse) etc; – Dabla v The Republic [1980] GLR 501;

Part played by each convict where convicts are more than one – sentence to reflect role played by each;

Physical condition – disabled persons, pregnant women, weaning mothers, etc;

Status of convict, etc.

 THE COMMUNITYThe interest of society must be borne in mind when passing sentence.Public protection.Interest or feelings of victim; (i.e. restitution, compensation, etc.)The conduct of complainant as a mitigating factor. Note! MELFA v

THE REPUBLIC [1974] 1 GLR 174, CA; LAMPTEY @ MOROCCO v THE REPUBLIC [1974] 1 GLR 165, CA.

General and individual prevention (deterrence).Surrounding circumstances; e.g. trivial offences committed

during festivities, convict’s clean record, etc. Court should however be mindful of unsubstantiated rumours about the conduct or character of convict intended to prejudice the mind of the court. Again, court should not be influenced by the lifestyle or the general appearance like haircut or dress code of convict.

Respect/approval of offence; i.e. where offence is aggravated in degree, factors stated above do not apply. The sentence must induce respect for the court by the community. The judge must not exhibit excessive show of power or authority for personal reasons.

 

  ORDERS ANCILLARY TO SENTENCING OR FINAL ORDERS

Orders in respect of articles and properties – e.g. restitution, forfeiture, confiscation, destruction, etc. Ss 144 – 147 of Act 30.

Compensation and costs to accused and victim, etc. Ss 141 – 142 of Act 30.

Failure to comply with orders to pay fine, compensation and/or costs. Ss 316 – 322 of Act 30.

Deportation orders - Where an alien has been convicted, the judge/magistrate may recommend to the appropriate authority for his/her deportation if he/she is sentenced to imprisonment exceeding 3 months with or without a fine.

** REVIEW OF DECISIONS IN CRIMINAL PROCEEDINGS AND SENTENCING**

 

It is instructive to note that decisions and sentences cannot be reviewed by a judge in anyway. A judge becomes functus officio after decision is pronounced.

In REPUBLIC v DUFA [1976] 2 GLR 18, a magistrate convicted and sentenced accused to 3 months IHL. He suo motu re-opened the case the next day and rescinded the previous sentence whereby he cautioned and discharged accused. Also, in DAVIES v THE STATE [1967] GLR 551 @ 553, the judge pronounced his decision in court to the hearing of the public, but altered the verdict in chambers.

The above conduct showcased in the two cases is not permitted by law.

  *Some important Bible Quotations to guide you in the discharge of your duties*

DEUTERONOMY Chapter 16: Verses 18 & 19 – [One of Moses’ farewell MESSAGES to the people of Israel when they were crossing the Jordan from the east to the west after he had led them on their escape from the land of Pharaoh to the Promised Land].

“After you are settled in the towns that you will receive from the Lord your God, the people in each town must appoint judges and other officers. Those of you that become judges must be completely fair when you make legal decisions, even if someone important is involved.

Don’t take bribes to give unfair decisions. Bribes keep people who are wise from seeing the truth and turn honest people into liars.”

PROVERBS 17: Verses 15 & 23“The Lord doesn’t like those who defend the guilty or condemn

the innocent…Crooks accept secret bribes to keep justice from being done.”PROVERBS 18: Verse 5“It is wrong to favour the guilty and keep the innocent from

getting justice.” +MAY THE ALMIGHTY GUIDE YOU IN THE DISCHARGE OF YOUR

ONEROUS DUTIES

THANK YOU FOR YOUR ATTENTION