Division: IN THE HIGH COURT, KUMASI
Date: 3 APRIL 1964
Before: SOWAH J
JUDGMENT OF SOWAH J
This small appeal has brought into focus the difficult question of the punishment or sentence of
co-defendants; the fact that co-defendants have been punished at the same time draws attention to any discrimination between them.
In this case the first accused whom the learned circuit judge described as a young girl (which description is not quite correct as learned state attorney informed the court that she was a young woman of twenty-two years), was charged jointly with the second accused, the appellant herein. Both defendants pleaded guilty, the young woman was bound over to be of good behaviour and the appellant herein was sentenced to nine months’ imprisonment.
The appellant has argued that there was no justification for the discrimination and that having regard to the sentence imposed on the first accused, which in fact meant that the first accused was not punished, the sentence of nine months on, the appellant was excessive and harsh.
The appellant further urged that the person who benefited most from the crime was the first accused and that the appellant obtained no benefit. The first accused was as a result of the impersonation admitted to the nurses’ training school and was fed and clothed freely. Further she kept up this deception until she was caught. The appellant therefore urged that the punishment on joint offenders should reflect not only any difference in their responsibility for the commission of the crime, but must also take into consideration any benefit obtained by each person as a result of the crime. The appellant urged that in this case they were in pari delicto in the commission of the crime.
Mr. Luguterah for the state has urged upon me that the parties were not in pari delicto and that the circuit judge in exercising his discretion in discriminating against the parties gave reasons which were borne out by the facts of the case.
For this court to interfere the circuit judge must be shown to have exercised his discretion on wrong premises. The learned circuit judge in sentencing the accused persons said inter alia:
“The first accused is in my opinion a victim of circumstance. By her conviction she will lose her place at the training school and her demeanour in the dock shows quite clearly that she has regretted. In the circumstances I will treat her as a first offender.”
The serious thing about this passage is we are not told how the first accused became a victim of
circumstance, she knew she was personating and did keep up that appearance until she was caught. Further she did not lose her place in the nurses’ training school by her conviction, because ab initio she had no place in the training school and only got there by subterfuge. Indeed she lost nothing by her conviction.
If I may say so with respect, both parties have overlooked the fact that the principal offender was the first accused who had gone free and that the second accused namely the appellant was only charged with aiding and abetting her for a consideration which apparently was never received; for the charge reads, “with the intent to obtain the privilege of getting cash the sum of twenty pounds.” I surmise that the cash was never received because if it had the appellant ought to have been charged with corruption by a public officer in addition. As said before he was only charged with aiding and abetting the first accused. I agree with learned counsel for the state that the parties were not in pari delicto to this extent, as one is a public officer and the other is not, yet I consider the matters which were taken into consideration in respect of the first accused ought also to have been taken into consideration in the case of the appellant. In R. v. Williams1 Lord Goddard C.J. said, “Why it seems so often to be considered, where a man and woman are involved, that the woman should always receive a less sentence than the man, I do not know. Of course, there are cases in which it is right that she should.” The Lord Chief Justice then gave an example of a young woman stealing under the influence of a man.
In my view the learned circuit judge should have taken the following matters into consideration, some of which he considered in the case of the first accused: (a) that the appellant was a first offender; (b) that the appellant would also lose his position or office by reason of his conviction; and (c) that the appellant was a young man and finally that the fact that the appellant never received the consideration of twenty pounds, in other words, he did aid and abet for naught.
However I agree with the circuit judge when he stated that the fact that the appellant was a public officer and the offence was committed in the course of his employment called for greater punishment upon himself than upon the first accused.
But I also do think that if he had also considered those matters which he took into consideration in the case of the first accused he might not have imposed the sentence of nine months. The learned circuit judge did not even stop to consider whether the appellant by his “demeanour in the dock” had also regretted; an important factor taken into consideration in the case of the first accused, the young girl.
In my view in deciding upon the appropriate sentence in the case of co-defendants the court should see whether the matters it had taken into consideration in respect of one accused person could also be applicable to the other accused person or persons.
The circuit judge’s main reason for imposing a sentence of imprisonment is to deter other like minded persons who are in a position of trust. However if he had taken into consideration in respect of the appellant all the matters he took into consideration in respect of the first accused, he might have given the appellant an option of a fine or a shorter sentence.
I am of the view that a short and sharp sentence of imprisonment will not only serve the public interest but should also be a deterrent to like minded persons. In the circumstances I will vary the sentence to one of five months’ imprisonment with hard labour.
DECISION
Appealed allowed in part.
N. A. Y.
