HIGH COURT, SUNYANI
Date: 13 JUNE 1974
OKAI J
CASES REFERRED TO
(1) Stupple v. Royal Insurance Co., Ltd. [1971] 1 Q.B. 50; [1970] 3 W.L.R. 217; 114 S.J. 551; [1970] 2 Lloyd’s Rep. 127; [1970] 3 All E.R. 230, C.A.
(2) R. v. Reeves (Raymond) (1972) 56 Cr.App.R. 366; [1972] Crim.L.R. 194, C.A. (3) R. v. de Haan [1968] 2 Q.B. 108; [1968] 2 W.L.R. 626; [1967] 3 All E.R. 618, C.A.
[p.381] of [1974] 2 GLR 380
NATURE OF PROCEEDINGS
APPEAL against sentence imposed by a trial magistrate on a conviction of the appellant for the offence of assault contrary to section 84 of Act 29. The facts are sufficiently stated in the judgment.
COUNSEL
Oppong for the appellant.
Osei, State Attorney, for the respondent.
JUDGMENT OF OKAI J
On 7 December 1973, the appellant was charged at the District Court Grade II held at Duayaw Nkwanta with the offence of assault contrary to section 84 of the Criminal Code, 1960 (Act 29). The particulars of the offence were as follows: “Yaw Agyemang: Labourer—on 15 November 1973, at Duayaw Nkwanta in the Brong-Ahafo
Magisterial District and within the jurisdiction of this court did unlawfully assault one Kofi Anane.” He pleaded guilty with the explanation that they were good friends and he had no intention of hitting the complainant with the stone. The court was of the opinion that the explanation given did not exonerate the appellant from the charge levelled against him. The appellant was convicted and sentenced to twelve months’ imprisonment with hard labour. The appellant is dissatisfied with the sentence imposed and is seeking the assistance of this court. I proceed now to consider whether he is deserving of my assistance. Counsel for the Republic contends that there were special circumstances warranting the severe sentence of twelve months which is the maximum the learned magistrate could impose. Let due and anxious consideration be given to the arguments of counsel in this case. I must say at once that in a criminal matter an appellate court must resist the temptation to fill in gaps in the prosecutions’s case or the explanation given by the appellant by speculation. It is dangerous to do that. I also adopt the view expressed by Lord Denning M.R. in Stupple v. Royal Insurance Co., Ltd. [1970] 3 All E.R. 230 at p. 232, C.A. that “lawyers must not guess, at any rate not in a criminal case.”
It is not without interest to note that the appellant never prevaricated, he admitted the offence and explained that they were good friends and that he did not intend to hit him with a stone. I feel that is the nub of the matter on the question of mitigation. The facts of the case were stated by the trial magistrate as follows:
“The accused was sent by the complainant to buy a cigarette. He bought the cigarette and a tin of geisha, but the balance was not sent back to him (the complainant). Quarrel ensued and the accused hit the complainant with a stone. He was charged and put before this court for trial. His explanation was that they are all good friends and he had no intention of hitting him with the stone.”
The learned magistrate as is seen from the sentence passed on the appellant, and as contended by the learned state attorney, in my view, took the view that the offence might be something substantial and less petty; but there is nothing that I have seen on the appellant’s record and the record of proceedings which made it clear that that view was justified. The court has come to the conclusion that having regard to the matters
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stressed and the circumstances of life of the accused the appropriate length of sentence should not have been twelve months’ imprisonment with hard labour. It is therefore fair to say that the appellant should have been given an option of a fine. If, however, the learned magistrate held the view that a man who failed to give back the balance of the amount he had to give to the complainant could not pay a fine, I would, with respect, say that he was in the wrong in principle and at odds with his law. On this I refer to R. v. Reeves (Raymond) (1972) 56 Cr.App.R. 366, C.A.. The facts of this case as stated at pp. 366-367 were that:
“At Birmingham Quarter Sessions on October 29, 1971, this appellant Raymond Reeves was convicted, after he had changed his plea, on three separate counts of obtaining property by deception and the learned Assistant Recorder of Birmingham, Mr. Gilbert Griffiths, sentenced him to nine months’ imprisonment concurrent on each of those three counts. Perhaps the most serious of the three counts, as MacKenna J. pointed out during the argument, was the last which charged this man with having obtained the sum of £600. The sum in all which the appellant pleaded guilty to having obtained, was £700 . . . from a coloured man named Chisti. Those sums were obtained by false representations that the appellant had power to grant a lease of a house and shop at Birmingham . . . The appellant had no right whatever to assign his interest without the owner’s consent . . . The Court, therefore, approaches this case on the basis that this was a case of deliberate fraud committed on a coloured man who was perhaps unaware of the full nature of his rights and who was prevented from seeking the legal advice which might, had it been obtained, have prevented the loss of his money.
The learned Assistant Recorder passed sentences, as I have said, totalling nine months’ imprisonment. In the course of passing sentence he said this: ‘The only thing I find very very unpleasant is to have to consider the question of sending a man of fifty-seven years to prison but I really do not see how I can avoid it. You are in no position to pay a financial penalty. If you were a man of means I should make a heavy fine on you but it is no good doing that in your present position’.”
It was held by the Court of Appeal that it was wrong to sentence a person to imprisonment not because of the gravity of the offence, i.e. not because the offence merited a prison sentence but because he was not able to pay a substantial fine. It could be inferred from the circumstances of this instant case that as the offence is trivial and that the accused is a first offender meaning that his record is good, what the learned magistrate thought was that the accused could not pay a substantial fine.
The court has been greatly assisted here by Mr. Oppong, who appeared on behalf of the appellant. It is abundantly clear that he has made a powerful plea on behalf of the appellant. It is my view that any prison sentence that was imposed should be one that in effect recognises its triviality; probably it could be one that recognises the position in which
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the appellant found himself and should not be a harsh punishment. The appellant said he was playing and never meant to injure the complainant. There is nothing on record that showed that the complainant was seriously injured. Stress was rightly laid on the fact that the appellant is a first offender. I am satisfied that the appellant has regretted and as far as I am concerned he should be let out in time to lead a new and decent life. It is, therefore, my view that the court can see some grave error in principle in the sentence passed and the court sees good reason to disturb the sentence of twelve months. It is rather harsh and far too long. The idea is that there is, roughly, a sentence appropriate to every offence bearing in mind that the maxima permitted by law are to be reserved for the worst examples of the particular category of offence. The court then takes mitigation and aggravating factors peculiar to the offender into account. A rough tariff governing the length of a prison sentence is thus established: see R. v. de Haan [1967] 3 All E.R. 618, C.A. One of the best statements of the tariff system is contained in chapter 3 of the Dove-Wilson Committee on persistent offenders published in 1932. Extracts from the Dove-Wilson Report 1932, Cmd. 4090 are as follows:
“The primary consideration in determining the nature of the sentence to be imposed is the intrinsic character of the particular offence committed. In order that there may be a proper grading of sentences to fit the many degrees of gravity presented by the various cases which fall within the same legal category, it is necessary that the maximum sentence authorised by law should be reserved for the rare offences which are exceptionally heinous, that sentences approaching the legal maximum should be reserved for offences falling within the next degree of gravity, and so on—with the result that for ordinary offences (such as form the great majority of cases coming before the Courts) the heaviest sentences which the Court feels justified in imposing is usually far below the maximum sentence authorised by law for the category of offence in question.
In assessing the gravity of the offence numerous factors have to be taken into account. In no two cases are the facts precisely similar, and it is the duty of the Court to take into consideration all the circumstances and consequences of the offence. For example if a persistent office-breaker breaks into a railway booking office with intent to steal large sums of money and for some reason or other only manages to obtain a few trifling articles, the Court will probably consider appropriate a very much lighter sentence than if he had succeeded in his object.
In addition to considering the facts and circumstances of the offence it may be necessary for the Court to have regard to such points as the offender’s age, his health, his circumstances, the prevalence of the offence and other matters. Moreover, views may change from generation to generation as to the sentences appropriate to particular types and classes of offences. The very long sentences which were often passed twenty years ago are now usually regarded
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as harsh and excessive and are seldom imposed. All these factors prevent any precise standardisation of sentences, but nevertheless there is among judicial authorities a large measure of agreement on general principles and the practice of the Courts creates certain general standards. Sentences heavier than are warranted by these standards are liable to be reduced on appeal.
As we understand the position, it is only within the limit of the heaviest sentence warranted by these standards for the particular offence that the offender’s record falls to be considered. For example the legal maximum sentence for larceny is five years’ penal servitude, but the Recorder of London told us that for larceny of a bicycle he would never feel justified in giving a longer sentence than twelve or fifteen months’ imprisonment, no matter how often the offender had been previously convicted.
If the record of an offender is good, this may influence the Court towards a lenient sentence; conversely, a bad record will influence the Court towards a heavier sentence; and the difference resulting from an offender’s record may be great. For example a man with a good record may be merely bound over for an offence which if committed by a man with a bad record would entail a substantial term of imprisonment; but however bad the record may be, it is warranted by the standards indicated above for the specific offence on which the Court is adjudicating.”
I would therefore quash the sentence of twelve months’ imprisonment imposed and substitute a sentence that would let the appellant be discharged from prison now. To that extent the appeal is allowed.
DECISION
Appeal against sentence allowed.
S. Y. B. B.
