IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA - A.D. 2021

CORAM: DOTSE, JSC (PRESIDING)

DORDZIE (MRS.), JSC
AMADU, JSC
PROF. MENSA-BONSU (MRS.), JSC
KULENDI, JSC
CRIMINAL APPEAL
NO. J3/02/2021

26TH MAY, 2021

OBENG GYEBI ………. APPELLANT

VRS

THE REPUBLIC ……….. RESPONDENT

JUDGMENT
_______________________________________________________________

KULENDI JSC:-

INTRODUCTION
Upon a cursory glance, this Appeal appears to be a normal appeal against a sentence by a
convict. However, upon closer inspection and a lot of introspection, this matter transforms
into one of immense jurisprudential importance with the very essence and nature of
justice at the heart of the main issue that this set of facts raises.

This is an appeal against the judgment of the Court of Appeal upholding the life sentence
handed to the Appellant by the Kumasi High Court on the 18th day of August, 2000 for
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having committed the offences of Conspiracy and Robbery. At the time of the sentencing
of the Appellant, the law governing the sentencing of people convicted of Armed Robbery
was the Suppression of Robbery Decree, 1972 (N.R.C.D. 11). The relevance of this
point will become increasingly obvious in the course of this opinion.

The Appellant, who represents himself, argues that the life sentence imposed on him is
harsh and excessive given the circumstances surrounding the case as well as the
proceedings in Court.

The Appellant, then aged 32, was arraigned before the High Court, Kumasi, coram: His
Lordship Mr. Justice S.E. Kanyoke, and charged with Conspiracy to Commit Robbery and
Robbery contrary to Sections 23 and 149 of The Criminal and Other Offences Act,
1960 (Act 29) respectively. He pleaded not guilty to both counts but after trial was
convicted and sentenced to life imprisonment in accordance with the terms of Section 2
of the Suppression of Robbery Decree, 1972 (N.R.C.D. 11). He appealed against
the conviction and the sentence, but his appeal was dismissed by the Court of Appeal on
24th February, 2012 leading to this current Appeal. He filed the notice of appeal on 28th
April, 2020 pursuant to leave granted on 24th March, 2020.

BACKGROUND

The background as can be ascertained from the record is as follows;

The Appellant and five (5) others are said to have entered the house of one Kofi Tawiah at
Boate near Obuasi on 1st January, 1999 around 1:30am. On reaching the said house, they
did not meet Mr. Kofi Tawiah. Instead, they met Kwabena Obeng, a co-worker of Mr.
Tawiah’s who was taking care of the house in Mr. Tawiah’s absence. Mr. Obeng told the
robbers that Mr. Tawiah had gone to Kumasi for the holidays when the robbers mentioned
that they were looking for him. The robbers, who thought Mr. Obeng was Mr. Tawiah,
ordered him at gunpoint to lead them into the bedroom. Mr. Obeng and others were
subjected to beatings by the robbers who subsequently made away with cash and gold
worth Fifty-Four and a half Million old Cedis (¢54,500,000.00), five thousand four hundred
and fifty new Ghana Cedis (GH¢ 5,450.00 in today’s currency).

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A complaint was made to the police and the Appellant and others were arrested and
arraigned before Court.

Following a trial, the Appellant, together with others, was convicted and sentenced to life
in prison.

GROUNDS OF APPEAL

The grounds of this appeal are reproduced verbatim below:

1. That the sentence is excessively harsh with regards to the evidence on record and
the circumstances surrounding the case;

2. That Appellant is a first time offender who has served twenty (20) years in prison
already through the hard way;

3. That the trial High Court failed to consider any mitigating factors available then
such as first time offender, circumstantial evidence, and whether he has
dependents, and also the gravity or severity of the case, and;

4. That, Appellant has long ago reformed and demonstrated remorse out of regret of the
past occurrences.”

The Appellant is therefore asking this Honourable Court to tamper justice with mercy
and set aside the life imprisonment handed down on him and replace it with a more
bearable sentence.

ARGUMENT BY THE APPELLANT

The Appellant cites the dictum of Ansah JSC (as he then was) in the case of Kamil
v. The Republic (Unreported) Appeal NO. J3/3/2009 delivered on 8TH
DECEMBER, 2010, where the Learned Justice stated, “ Where an appellant
complains about the harshness of a sentence he ought to appreciate that every
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sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated
to deter others, to reform the offender, to appease the society and to be a
safeguard to this country.” He goes on to state that the principle governing appeals
against sentences was stated in the case of Apaloo v. The Republic [1975] 1
GLR 156, as follows:
“The Court would interfere [with the sentence] only when it was of the opinion
that the sentence was manifestly excessive having regards to the circumstances
of the case, or that the sentence was wrong in principle .”

The Appellant also references the case of Kwashie vs. The Republic [1971] 1
GLR 488 where this Honourable Court held that in considering the length of the
sentence, the trial Judge is required to consider factors including; (a) the intrinsic
seriousness of the offence, (b) the degree of revulsion felt by the law-abiding
citizens of the society for the particular crime, (c) The premeditation with which the
criminal plan was executed (d) the prevalence of the crime, within the particular
locality where the offence took place, or in the country generally, (e) The sudden
increase in the incidence of the particular crime and (f) mitigating or aggravating
circumstances such as extreme youth, good character, first time offender and the
violent manner in which the crime was committed.

The Appellant also acknowledges the difference the involvement of a weapon makes
in considering the sentencing of someone convicted of the offence he was convicted
of. He cites the case of Frimpong alias Iboman vs. The Republic [2012] 1
SCGLR 297 where this Honourable Court held “ What is to be noted here is that
whilst the minimum sentence for robbery has been fixed at 10 years simpliciter, in
cases where offensive weapons have been used, the legislature has deemed it fit
and proper to enhance the minimum to 15 years imprisonment. ”

The Appellant notes that in the summing up done by the Honourable Trial Court
Judge, he directed the jury to return a verdict of not guilty when it came to the
Appellant for the substantive charge of Robbery due to lack of evidence. This is
found on page 223 of the Record of Appeal.

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The Appellant also argues that no mitigating factors were considered in coming to a
life sentence. He cites the fact that although some of the occupants of the house
were beaten during the robbery, none of the occupants were seriously injured or
shot, and the fact that a sum of ¢2 million (GH¢ 200) out of the total sum of ¢54.5
million (GH¢ 5,400) was recovered from him as mitigating circumstances which the
Trial Court and the Appellate Court ought to have considered in his favour.

Additionally, he cites the case of Apaloo v. The Republic (supra) which states “A
sentence of imprisonment, even though intended as a general deterrence must not
be excessive in relation to the facts of the offence.”

Finally, he states that his fellow accused persons, the Third Accused and the Fourth
Accused, were released on appeal at Accra and Kumasi around 2015 and 2017 and
maintains that it is clear that the Court of Appeal “failed in analysing the
circumstances of the case critically, and erroneously dismissed his Appeal from the
High Court”.

The Appellant then concludes by saying that he has served 20 years in prison “in the
hard way” and that he has a good record of behaviour before all inmates and
officers. He states that while he was young at the time of his arrest and conviction,
he is now grown and has spent the productive years of his life behind bars. He thus
asks the Court to tamper justice with mercy and set aside the life sentence and
reduce the sentence to the minimum.

ARGUMENT BY THE REPUBLIC

The Republic in their written submission to this Court, makes a rebuttal to the
Appellant’s grounds for this Appeal by considering them as essentially one ground of
appeal. Under this unified ground of appeal, the Republic contends that the life
sentence awarded to the Appellant is appropriate, all circumstances considered. In
support of this point, the Republic asserts that while it was not captured in the
record of proceedings, the trial judge relied on the Suppression of Robbery

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Decree, 1972 (N.R.C.D. 11) which was the then extant law governing the
sentencing of people convicted of the offence of Robbery.

After reproducing the provision contained in Section 2 of NRCD 11, the Republic
submitted that the trial judge had only two options in sentencing the Appellant
under the law, the death penalty, or a life sentence. The Republic asserts that by
giving the Appellant a life sentence, the trial court considered all possible factors and
gave the Appellant the most appropriate sentence. The Republic argues that, as a
matter of fact, the trial judge could not have imposed a lesser sentence than the life
sentence which was handed down to the Appellant.

LAW AND ANALYSIS

This case brings up a fairly unexplored and specific question, yet one not without
guidance that can be obtained from or found in existing law. The question here
being, “what happens when a person is convicted and sentenced under a provision
that is repealed and/or replaced with a reduced sentence while the person appeals
the sentence?”. To be clear, this question is not the main contention which was
addressed by the parties herein, which was whether the sentence imposed on the
Appellant was harsh, considering all the circumstances at the time of the trial.

In considering whether or not a sentence passed by a lower Court is harsh, the main
factor to be considered is not necessarily whether or not the lower Court exceeded
its limits when it comes to the power to sentence. It is, as Taylor J (as he then was)
stated in the case of Impraim v. The Republic [1991] 2 GLR, that “there were
mitigating factors which were ignored or were not comprehended by the trial court.”

In case of Kwashie & Another v. The Republic [1971] 1 GLR 488-496, the
Court of Appeal held as follows;

“In determining the length of sentence, the factors which the trial  judge is entitled
to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of
revulsion felt by law-abiding citizens of the society for the particular crime; (3) the

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premeditation with which the criminal plan  was executed; (4) the prevalence of the
crime within the particular locality  where the offence took place, or in the country
generally; (5) the sudden  increase in the incidence of the particular crime; and (6)
mitigating or aggravating circumstances such as extreme youth, good character and
the violent manner in which the offence was committed ." 

Again, for clarity’s sake, this is NOT the main question at play in this present Appeal.
The issue that this Court has to primarily address in this Appeal is specifically the
effect of the repeal of the life sentence and death penalty as the only possible
punishments that could be handed down for the crime that the Appellant was
convicted of, after his conviction by the trial court, but during the appellate process,
especially against the sentence, but more generally, the situation where a penalty, a
forfeiture or a punishment is reduced, mitigated or eliminated by a provision of the
enactment so substituted after the conviction of a person for a crime, but while an
appeal against the penalty, forfeiture or punishment has not been exhausted.

As stated earlier, this specific situation, while fairly unexplored in our jurisprudence,
is not one without guidance in existing law. First, let us commence from the trite and
over-repeated principle that an appeal is by way of a rehearing. Us lawyers and
judges often state this principle. But what does it mean, exactly, to say that an
appeal is by way of a rehearing?

For an answer to this, we can look to the dictum of Windeyer J. which elucidated
with efficient precision, what it means to say that an appeal is by way of rehearing
in the case of Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA
43; (1970) 124 CLR 192, at pp 208-209. There, he stated as follows:

"This does not mean that the appeal is a complete re-hearing as a new trial
is. It means that the case is to be determined by the Full Court, its members
considering for themselves the issues the trial judge had to determine and
the effect of the evidence he heard as appearing in the record of the
proceedings before him, but applying the law as it is when the appeal is
heard not as it was when the trial occurred.” (emphasis added)

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Already, this has implications for the sentencing of the Appellant. It becomes
apparent, as stated earlier, that the most relevant question for consideration in this
appeal, and in the appeal before the Court of Appeal, is not whether the sentence
imposed on the Appellant was harsh, nor whether there were mitigating factors that
should have reduced the sentence that was awarded by the Trial Judge, nor indeed
whether or not the sentencing regime governing the offence that the Appellant was
convicted of at the time of the sentencing at the trial court, restricted the trial judge
to the sentence that was imposed at the time of the sentencing. The relevant
question evolves past those questions to become, “In an Appeal, which is by way of
rehearing, what was the law (governing the sentencing of a person convicted of an
offence of which the Appellant was convicted) at the time when the appeal is
heard?” In most cases, the legal sentencing regime — that is, the law governing the
sentencing of the offence in question, would not have changed by the time of the
appeal and therefore in an appeal against a sentence, the considerations which an
Appellate Court has to contemplate in making a decision about the sentencing are
the same as the considerations which the Trial Court had to evaluate. In this case
however, since the law governing sentencing at the time when the appeal was heard
by the Court of Appeal and now by this Court was different from the law at the time
of the original sentencing, it is the law at the time that the appeal is heard which
ought to be applied since the appeal is by way of a rehearing, therefore the
considerations which the Trial Court and the Appellate Courts have to evaluate are
different.

This inevitably begs the question, “what should happen in the situation where the
sentence that the newer law imposes is harsher, or imposes a higher minimum
sentence than the law being repealed?” First of all, if this is the case, yet after
sentencing, no one appeals against the sentence, there is no problem. Secondly,
once again, we are guided by the law, starting from the Constitution.

The 1992 Constitution in Article 19(11) says “(11) No person shall be convicted
of a criminal offence unless the offence is defined and the penalty for it is prescribed
in a written law.”

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In terms as simple as they can be put, an enhanced sentence under a new law by
definition was not prescribed in a written law at the time of the commission of the
criminal conduct, whereas a newly mitigated sentencing regime was already
contemplated by the previously harsher statutory prescribed sentence.

This then begs the question, “what happens in a case (such as this one) where the
newer mitigating sentencing regime is less harsh than the previous sentencing
regime’s minimum sentencing guideline? — Surely, it cannot be said that the older
sentencing regime contemplated the less harsh sentence since it explicitly excluded
the less harsh sentence."

To those who pose that question, we would first say that that is a very valid
question. However, we would be quick to add that refuge can still be sought from
and be found in already existing law. For this, we turn to Section 35(2)(e) of the
Interpretation Act, 2009 (Act 792). There it is provided as follows:

“(e) where a penalty, a forfeiture or a punishment is reduced or mitigated by

a provision of the enactment so substituted, the penalty, forfeiture or
punishment, if imposed or awarded after the repeal or revocation, shall be.
reduced or mitigated accordingly.”

While it is conceded that this provision specifically outlines a situation where the
repeal occurs before the sentence is awarded or imposed, we are of the view that
this provision can and ought to be applied mutatis mutandis to cases where the
accused has been convicted, but has not exhausted their constitutionally guaranteed
right of appeal. More so because an appeal is by way of rehearing.

From the record of Appeal, the notice of this appeal was filed on the 28 th of April,
2020. As of this date, the applicable sentencing regime for the offence of Robbery is
provided for under section 32 of the Criminal Offences (amendment) Act
2003, Act 646 which amends section 149 of the Criminal Offences Act, 1960
Act 29, and provides as follows;

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Robbery
(1) Whoever commits robbery is guilty of an offence and is liable, on conviction
upon summary trial or indictment to imprisonment of a term of not less than
ten years, and where the offence is committed with the use of an offensive
weapon or offensive missile, the offender shall, upon conviction, be liable to
imprisonment for a term of not less than fifteen years.

By reason of our preceding reasoning, we are of the considered opinion that this is
the sentencing regime under which we may proceed to exercise our jurisdiction to
rehear this appeal with regards to the Appellant’s plaint against the life sentence
rightly imposed on him by the trial judge at the time. From this section, a court,
including this Court may impose or sanction a sentence of not less than ten years,
and where the offence is committed with the use of an offensive weapon or
offensive missile, the offender shall, upon conviction, be liable to imprisonment for a
term of not less than fifteen years.

In the article entitled “Today's Law and Yesterday's Crime: Retroactive Application of
Ameliorative Criminal Legislation” published in the November 1972 edition of the
University of Pennsylvania Law Review by the editors of that law review, a few
examples are cited to support this view. The authors of this article write as follows,

“In American cases in which penalties were lessened, the abatement doctrine
operated as it did in England. In Commonwealth v. Kimball [38 Mass. (21
Pick.) 373 (1838).], for example, the defendant was convicted of selling liquor
without a license. While his appeal was pending the statute was repealed by
implication due to the passage of another statute prohibiting the same
conduct. The latter statute provided for a fine of between ten and twenty
dollars while the former provided for a twenty-dollar fine. The court held that
the defendant was entitled to arrest of judgment since the former penalty
had been repealed by the latter statute in the absence of a saving clause.
Similar results were also found in cases of express repeal and prospective re-
enactment with lower penalties. Judgment was arrested on appeal and a

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 convicted defendant was discharged in State v. Daley [29 Conn. 272 (1860).]
because, before the defendant's trial, the legislature had expressly repealed
the manslaughter statute and replaced it with a prospective statute with
lesser penalties. In this situation the legislature could have used a saving
clause in the repealing statute or provided that the new statute apply to
outstanding violations of the repealed statute. Had the latter device been
used, it would not have violated the ex post facto clauses because
punishment would have been mitigated.”

Therefore, if, during the appeal against the sentence of a convict, the sentencing
regime for the conduct for which they are in court is amended by Parliament, and
this amendment is one that mitigates the prescribed sentence, the convict, in an
appeal against their sentence, may argue that their sentence ought to be mitigated
in the light of Parliament’s new thinking on the punishment for their conduct and an
appellate Court ought to consider the new law in coming to a conclusion on the
appeal against the sentence. This is especially the case where the new sentencing
regime has sentencing options less harsh than the minimum sentencing option under
the old regime.

Once, and after the determination has been made by the Appellate Court that a
new, less harsh sentencing regime has been passed into law by Parliament, the
Appellate Court then has to take into account the considerations set out in Kwashie
& Another v. The Republic in order to determine by how much it would reduce
the sentence of the Appellant. This judgment will now do that, a task which the
Court of Appeal was not automatically enjoined to do since the Applicant’s appeal to
the Court of Appeal, the grounds of which may be found at page 227 of the Record,
was essentially against conviction and not against sentence.

What then, are some of the mitigating factors that ought to have been included in
coming up with the sentence in this case? While the trial court had no option but to
impose the statutory sentence, on the Appellant, the remit of the first appellate
court, the Court of Appeal, was different. The Court of Appeal had the power, under
its jurisdiction of rehearing, coupled with the combined effect of the repeal of the

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NRCD 11 and the provisions contained in Section 35 of Act 792 to take into
account all factors that go to mitigation in favour of the Appellant. These would be
the same factors that the High Court would have had recourse to, but for the
statutory imposition of the minimum of a life sentence by NRCD 11. That said, it
must however be noted that from the notice of appeal, at page 226-228 of the
Record of Appeal, the nine elaborate grounds of appeal to the Court of Appeal, did
not include an appeal against sentence. Consequently, it is understandable that the
Court of Appeal as the first appellate court did not exercise its jurisdiction to
consider a mitigation of sentencing, since the relief was not sought by the Appellant
on that occasion. Having already said that we have the jurisdiction to evaluate the
harshness or otherwise of the sentence for the reasons aforesaid, the first mitigating
factor that we would consider is the fact that the Appellant is a first-time offender.

Of course, as Brobbey JSC noted in the case of Frimpong v. The Republic

(J3/5/2010) [2012], the youth of an offender or the fact that he is a first time
offender do not mandate a Court to give a convict any particular sentence. Indeed, if
there is a minimum sentence for the offence, that minimum ought to be the lowest
sentence granted even if the offender is a young first time offender.

Secondly, the fact that even the Trial Judge did not believe that there was enough
evidence to convict the Appellant of the charge of robbery should be a mitigating
factor. Even though, the Appellant made a statement admitting his guilt, the record
shows that he subsequently reneged on that confession, insisting that the admission
was induced by threats, beatings and harassment by the police and thereby
compelling him to abandon his very initial denial of any role in the Robbery. In
considering this, and the rest of the evidence on the record, the Trial Judge came to
the conclusion that there was not enough evidence on the record to convict the
Appellant for Robbery, and directed the jury not to convict him of Robbery.

However, the Jury returned a verdict of guilty for both Robbery of Conspiracy, the
Trial Judge thus sentenced him to the minimum punishment of life in prison. One
can safely infer that the mitigating factors were operating on the mind of the Trial

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Judge. This is because he awarded the minimum sentence that he could under the
law.

The evidence did not show that anyone was seriously injured during the robbery.
This is a factor that, as the first appellate court whose jurisdiction has been invoked
to mitigate sentencing, we ought to consider. Even though a gun was involved,
nobody was shot and/or seriously injured. That notwithstanding, the possession
and/or use of an offensive weapon in Robbery, aggravates the sentence from a
minimum ten years to a minimum of fifteen years by virtue of section 149 (1) of
Act 29 as amended by Section 32 of Act 646. Consequently, in this Appeal, we
cannot lawfully substitute the sentence of the Appellant with a sentence that is less
than fifteen years.

From the record, the Appellant was in custody from the time of his arrest sometime
in 1999 up to the date of his conviction, on 18 th August, 2000 and has since been in
prison under a life imprisonment with hard labour. During this time, the Appellant
alleges that he has been of good behaviour, towards inmates and prison authorities,
and this has not been challenged by the Respondent. This therefore ought to be a
mitigating factor which should inure to the benefit of the Appellant in our evaluation
of any mitigating circumstances in this rehearing in relation to sentence.

The Appellant also states that his children are young adults, who were raised by and
now have to be supervised by their ageing grandparents. He states that his
protracted absence, and lack of any parenting role in the lives of his children makes
them vulnerable to becoming delinquent and thereby run a risk of being on the
wrong side of the law. Even though his children are already young adults, he could
make a modest and minimum contribution to shaping their direction in life, if he had
the benefit of a mitigation of his sentence. Family and social circumstances such as
these may in the appropriate circumstances, be considered one way or the other in
sentencing.

That said, a court in sentencing must equally consider aggravating factors in each
case. In this case, the offence of Armed Robbery was and is still a serious offence.

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The seriousness society attaches to Robbery is demonstrated by the sentencing rules
surrounding the offence.

Additionally, at the time this offence was committed, armed robbery was prevalent
and even today its occurence cannot be said to be any less. In fact some have
argued, and may be right that it is on the ascendancy and is becoming increasingly
brazen and violent. That said, having regard to social dynamics and the competing
contentions in the jurisprudence of custodial punishment as the most effective tool
for the suppression of crime, it is understandable and desirable that the Criminal
Offences (Amendment) Act imposes a more flexible punishment regime that enables
the Courts to impose appropriate sanction having regard to the peculiar
circumstances of each case.

Given the age of the appellant at the time the crime was committed in 1999, by
parity of reasoning he would be in his 50s as at date of this judgment.

Granting a commutation of the sentence of the Appellant has a societal benefit

because he will be in society where he will serve as a reminder to others around him
what happens when they decide not to pursue a straight and narrow path.

Considering the five-fold factors affecting the discretion of a Court raised by Ansah
JSC (as he then was) in the case of Kamil (supra) we are of the view that the time
served by the appellant already is nearly punitive enough.

Consequently, having regard to the totality of the circumstances of the Appellant’s

conviction and sentence, and the statutory changes which mitigate the punishment
for robbery, after the Appellant’s conviction, we are of the opinion that the sentence
of life imprisonment imposed by the trial court on the Appellant ought to be
reduced. The Appeal against the sentence therefore succeeds. Consequently, his life
sentences for each of the offences of which he was found guilty and made to run
concurrently, are hereby set aside. We substitute a sentence of thirty (30) years
from the date of conviction, to run concurrently for each of the offences of which he
was found guilty. In computing time to be served by the Appellant, we took into

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consideration the time served on remand during the trial of the case at the Trial
Court.

We are inclined to recommend that, for the avoidance of doubt, that whenever
Parliament embarks on legislation that reduces or mitigates, a penalty, forfeiture or
punishment by way of an amendment, to existing statutes, the administration of
justice would be enhanced if express saving provisions are included to provide for
the fate of persons already sentenced and still serving a punishment, penalty or
forfeiture under the statute that has been amended or repealed.

This is necessary to address the fate of those who may well have exhausted the
appellate process and so cannot avail themselves of the rehearing jurisdiction of any
Appellate Court in a bid to achieve a review of the sentence, penalty or punishment
they may still be serving in spite of the introduction of new legislation that takes a
less harsh view of the conduct for which they were punished or sentenced.

E. Y. KULENDI
(JUSTICE OF THE SUPREME COURT)

V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)

A. M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)

I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)

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 PROF. H. J. A. N. MENSA-BONSU
(MRS.)
(JUSTICE OF THE SUPREME COURT)

COUNSEL
WINIFRED SARPONG (PRINCIPAL STATE ATTORNEY) FOR THE RESPONDENT.
EZIUCHE NWOSU FOR THE PLAINTIFF/RESPONDENT/RESPONDENT/CROSS-
APPELLANT.

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