JOSEPH KOFI DARKO v. REPUBLIC

AYEBI J.A.

On the 17th March 2004, the appellant was arraigned before a Kumasi High Court on a charge of defilement contrary to section 101 of Act 29, of the Criminal Offences Act, 1960 as amended by Act 554 of 1998.

In subsection (1) of the said section 101, it is provided that “for the purposes of this Act, defilement is the natural or unnatural knowledge of a child under sixteen years of age”.

And in subsection (2) of the said s.101, it is stipulated that:

“A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years”.

The particulars of the offence state that the appellant then aged 41 years during the month of December 2002, did have carnal knowledge of one Prisilla Tawiah then aged 11 years who is now deceased. After a full trial, the High Court on 22nd December, 2004 found the appellant guilty, convicted him and sentenced him to imprisonment for twenty (20) years with hard labour. On 23rd December 2011, the appellant filed this appeal against the said sentence and prays this court to reduce the said sentence.

The grounds of appeal are that:

(i) The learned trial judge failed to consider your humble appellant as a first offender who had never had any brush with the law.

(ii) The appellant’s continued incarceration has had grave negative impact on his wife and children’s education.

(iii) The appellant’s right eye is gradually getting blind and needs to be operated upon.

(iv) The appellant has learnt great lessons in prison for almost the past 7 years and has turned a new leaf ready to contribute positively towards society.

(No other ground(s) of appeal were filed as indicated in the notice of appeal).

The written submission of the appellant was filed on 16/05/2013. But the Chief State Attorney who represented the respondent (The Republic) did not find it necessary to file any response at all. The court is thus denied the benefit of knowing the views of the Republic on the appellant’s complaint against the sentence imposed on him.

But of the four grounds of appeal, it is only grounds (i) and (ii) which are worth considering in my view. As regards ground (iii), I am aware that a convict who is physically handicapped is treated with some leniency when it comes to sentencing but not where he committed a grave offence. Even then