Justice Yaw Appau
Justice of the Court of Appeal
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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.
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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.
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*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]}
RECONCILIATION IN CRIMINAL CASES
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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.
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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
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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.
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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.
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Under utilitarianism fall the theories of
preventive, deterrence and
rehabilitation/reformation.
The basis of these theories is;
To prevent the offender from repeating or
committing similar crimes while suffering
punishment. Examples: a.
b.
The imprisonment of a thief will prevent him from
further stealing within the period of incarceration.
The disqualification of a reckless driver from driving
within a specified period of time will prevent him from
committing further reckless or careless driving.
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.
ii.
iii.
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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
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DEATH
IMPRISONMENT
FINES
ABSOLUTE OR CONDITIONAL DISCHARGE
PROBATION
BOND; i.e. RECOGNIZANCE FOR KEEPING THE
PEACE OR TO BE OF GOOD BEHAVIOUR
DETENTION
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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.
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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.
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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.
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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
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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.
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**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.
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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
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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
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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.
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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)
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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.
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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.
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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.
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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
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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.
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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.
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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
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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 SENTENCING
The principles or factors to be considered before passing sentence are varied.
However, the major ones are the “Four (4) C’s” namely;
The Court
The Crime
The Criminal, and
The Community
A. THE COURT
Prescription 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.
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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.
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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 Conviction
In 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 judgment
As 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.
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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 CRIMINAL
The 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 COMMUNITY
The 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