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July 26, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF OSEI-HWERE J.
This is an appeal by the appellant against his sentence. The appellant was jointly charged as the first accused with one Kwadwo Yeboah alias Kwadwo Moses and arraigned before the circuit court for stealing. Both pleaded not guilty and they were tried and found guilty and convicted. The evidence against them disclosed that they stole a Honda 12 motor cycle valued at ¢1,208.00 at Bechem. The complainant had parked the motor cycle in his house and had gone to sleep on the night of 15 October 1975. At 3 a.m. on 17 October 1975 an army patrol at Dome near Nsawam came upon them, with the appellant (the first accused) driving the motor cycle and the second accused riding as his pillion. Before passing sentence the trial judge was informed that the appellant had a previous conviction for stealing and that he had been sentenced to a fine of ¢30,00 or two months' imprisonment with hard labour on 28 April 1972 at Agona Swedru. The appellant admitted his previous conviction. The prosecutor further informed the judge that he has had confirmation by telegram that the second accused was committed to the Borstal Institute, Mamoobi, for stealing, from where he had escaped on 9 July 1975 and that he was a wanted person. He had obviously committed the present offence whilst he had not been released from Borstal. The second accused had stated his age to be fifteen but the police had doubted this and so they had referred him to a medical officer to assess his age. This had been assessed at nineteen years which the trial judge accepted. In sentencing the appellant and his colleague in crime he imposed a sentence of three years' imprisonment with hard labour on the appellant and twelve months' imprisonment with hard labour on his colleague. The appellant has appealed praying for a reduction of his sentence.
Counsel for the respondent has conceded that the appeal against sentence must be allowed as he finds the appellant's sentence rather harsh as compared with the sentence of the second accused who, although he does not feel he has a previous conviction because he had not completed serving his sentence when he committed this offence, must not be given the benefit of his unlawful act in escaping from lawful custody to commit this offence and that if his sentence is not aggravated it must also not be mitigated. In this regard he feels that the sentence of the appellant ought to have been seen in the same light as that of the second accused.
Whilst agre
AI Generated Summary
Justice Osei-Hwere considered an appeal against sentence by an accused convicted of stealing a Honda 12 motorcycle at Bechem with co-accused Kwadwo Yeboah alias Kwadwo Moses. After the complainant parked the motorcycle and slept, an army patrol at Dome near Nsawam later intercepted the pair, with the appellant driving and the second accused riding. The trial court was told the appellant had a 1972 stealing conviction at Agona Swedru and imposed three years’ imprisonment with hard labour on him, and twelve months on the co-accused. On appeal, respondent’s counsel conceded the sentence should be reduced but argued the second accused lacked a previous conviction due to escape from the Borstal Institute, Mamoobi. The judge rejected that, clarified that “previous conviction” refers to chronology, and applied section 300(4) of the Criminal Procedure Code to hold that offences committed before age eighteen cannot enhance sentencing once the offender is twenty. Emphasizing principles to rationalize sentencing and avoid unjustified disparity, and citing R. v. Heyes and R. v. Street, the court quashed the three-year term and substituted twelve months.