AIKINS ALIAS MENSAH v. THE STATE [1966] GLR 170

Division: SUPREME COURT

Date: 14 FEBRUARY 1966

Before: CRABBE, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Barrett [1949] 2 All E.R. 689n; 113 J.P. 512n; 65 T.L.R. 673; 93 S.J. 805; 48 L.G.R. 98; 34 Cr.App.R. 3, C.C.A.

(2) R. v. Askew [1949] 2 All E.R. 687; 208 L.T.J. 277; 113 J.P. 511, C.C.A.

[p.172] of [1966] GLR 170

(3) R. v. Cannell (1953) 37 Cr.App.R. 188, C.C.A.

(4) R. v. Apicella [1949] 2 All E.R. 813; 208 L.T.J. 310; 114 J.P. 11; 65 T.L.R. 729; 94 S.J. 51; 48 L.G.R. 290; 34 Cr.App.R. 29, C.C.A.

NATURE OF PROCEEDINGS

APPEAL from a decision of Koranteng-Addow J. wherein the appellant was sentenced to a term of five years’ imprisonment with hard labour, on a committal for sentence to the High Court, Sekondi, by a district court acting under section 3 (1) of the Punishment of Habitual Criminals Act, 1963 (Act 192). The facts are sufficiently set out in the judgment of the court.

COUNSEL

The appellant in person.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. On 4 June 1965, the applicant was convicted by the learned district magistrate at Tarkwa on a charge of pretending to be a public officer, contrary to section 237 of the Criminal Code, 1960.1 He was remanded in custody to give the police time to investigate his past record, and at a subsequent hearing he admitted four previous convictions for fraud and four others for stealing. When pleading for leniency he said that he had been moving with bad friends. Thereupon, the learned district magistrate, acting under section 3 (1) of the Punishment of Habitual Criminals Act, 1963,2 committed the applicant to the High Court, Sekondi, for sentence. This subsection reads as follows:

“Where the Court by which an offender to whom paragraphs (a) and (b) of subsection (1) of section 1 of this Act apply is convicted is a Circuit Court, District Court or Local Court, the Court shall not pass sentence upon him but shall commit him for sentence to the High Court, and any enactment relating to the powers of any Court upon committal for trial shall apply, so far as is relevant, to the committal for sentence.” In the opinion of this court the first duty of the High Court when a convicted person is committed under that subsection is to satisfy itself that the case is one which attracts paragraphs (a) and (b) of subsection

(1) of section 1 of the Act. If the court is so satisfied then it will have to exercise its functions under paragraph (c) of the same subsection of section 1 in order to determine whether it is a proper case in which to pass the irreducible minimum sentence of ten years in preventive custody with productive hard labour.

[p.173] of [1966] GLR 170

In this case the applicant was brought before Koranteng-Addow J. sitting at the High Court, Sekondi, on 20 July 1965. Before the applicant was sentenced, the state attorney stated that the applicant had ten previous convictions, four for stealing, four for fraud by false pretences, and two for pretending to be a public officer. He was last sentenced on 15 February 1965 on conviction for pretending to be a public officer. This is certainly not a good record. The applicant was a pupil teacher, and his age was given as 31 years. Without making any inquiry into the circumstances of the case, as he was bound to under section 1 (1) (c) of the Act, the learned judge said:

“This is a bad case but I do not think any useful purpose will be served in putting the convict into prison for as long as ten years. He may yet reform. I shall therefore not treat him under the Punishment of Habitual Criminals Act, 1963 (Act 192). I sentence him to five years’ imprisonment with hard labour. Sentence to run from 4 June 1965.”

There were before this court two applications by the applicant: one for an extension of time within which to appeal, and another for leave to appeal against sentence. We granted the application for extension, and as we were of the opinion that this case raised an important point on the construction of the Punishment of Habitual Criminals Act, 1963, we treated the application for leave to appeal as an appeal against sentence. The appellant was unrepresented, and after the Court had had some discussion with the state attorney, the court came to the conclusion that, with all due respect, the learned judge had not fully performed his functions under section 1 (1) of the Act. This is one of the few cases which have come to this court in which some of the High Court judges have, with the greatest respect, dealt with the matter with an equal degree of casualness. We therefore feel that it is our duty to examine the object and the various provisions of the Act with a view to giving some clear guidance to the lower courts as to the application of the Act.

There can be no doubt, in our view, that the main object of the Act is to empower the courts, when they consider it expedient for the protection of the public, to sentence habitual criminals, that is, those who have shown by their conduct that they are recidivists in crime, to a long period of incarceration. “Preventive detention ought to be passed only where prolonged detention is necessary for the protection of the public”: per Lord Goddard C.J. in R. v. Barrett.3 The Act is intended to apply to habitual criminals only,

[p.174] of [1966] GLR 170 and not to every person who has the statutory number of convictions: see R. v. Askew.4 It should be regarded as an exceptional sentence and not merely as an alternative to imprisonment. Further, the court leans against preventive custody when the offence under consideration is wholly out of character with offences previously committed: R. v. Cannell.5

Section 1 of the Act, which is the main section that deals with the punishment of habitual criminals, reads as follows:

“1.(1) Where a person who is not less than twenty years of age—

(a) is convicted of any offence other than an offence for which he is liable to suffer death; and

(b) has been convicted previously of at least two offences, each of which is either a felony or a misdemeanour; and

(c) it appears to the High Court, after enquiring into the circumstances of the case, that by reason of his criminal habits or tendencies or of his association with persons of bad character, it is expedient for the protection of the public that he should be detained in custody for a substantial period, the Court shall, subject to the next following section, pass (in lieu of any other sentence) a sentence of preventive custody with productive hard labour for such term, not being less than ten years, as the Court may determine.”

Where the above conditions are satisfied it is immaterial that the maximum penalty for the offence is less than the sentence imposed, but it is essential, and we would like to emphasize this, that the court must be satisfied that it is expedient for the protection of the public that the offender should be in custody for a substantial period.

The Act itself is silent on the nature of the inquiries which the High Court should hold. Without intending to fetter the discretion of the High Court in any way, we think that any inquiry should be such as would enable the court to determine the proper sentence. In our opinion the inquiry must be held into:

(a) the circumstances under which the offence was committed, i.e. whether the crime was well-planned or was accompanied with violence;

(b) the criminal habits or proclivities of the offender; [p.175] of [1966] GLR 170

(c) whether the offender has shown by his conduct that previous sentences had had no effect upon him; and

(d) whether the offender has shown that he was able to, and had held, a job for a substantial period immediately before the offence for which he has been convicted for sentence or has “gone straight” for at least twelve months before conviction.

We would say that these matters which we have mentioned are not exhaustive, and it is open to the judge of the High Court to probe other relevant matters. These facts must be stated on oath, and the offender or his counsel, if he is represented, must be given an opportunity to cross-examine the person deposing to these facts. The record of the High Court must show on the face of it the nature and details of the inquiry conducted together with notes of any evidence tendered at the inquiry.

In the opinion of this court, the High Court, before which the offender is brought, cannot pass a sentence of preventive custody merely on the ground that the statutory conditions have been fulfilled; the court itself must evaluate the relevant facts and circumstances of the case and then decide the appropriate sentence: see R. v. Apicella.6 It is an independent discretion which the court has to exercise. If it does not appear to the High Court, after the due inquiry, as required by section 1 (1) (c), that the case is a suitable one for which a sentence of preventive custody ought to be passed, then under section 3 (2) of the Act the court shall pass an appropriate sentence which the committing court could have passed. If the sentence passed by the High Court in such a case is ultra vires the committing court, the Supreme Court, on appeal, may pass a sentence which the committing court could have passed.

Where it does appear to the High Court that the case is a suitable one for which a sentence of preventive custody ought to be passed, but it has reason to believe that the offender is unsuitable for a sentence of protective custody with productive hard labour it is further required, under section 2 (1) of the Act, to take the following action before passing sentence:

“(a) cause an enquiry to be held into, and a written report to be made on, the physical and mental health of that offender by a medical Board consisting of not fewer than two suitably qualified medical practitioners appointed by the Court after consultation with the Chief Administrator of the Ministry of Health;

[p.176] of [1966] GLR 170

(b) consider the report of the Board and take such further medical evidence concerning the offender as the Court thinks fit; and

(c) furnish the offender or his lawyer with a copy of the report.”

Having considered the report, or further medical evidence, and any representations made by the offender himself, or made on his behalf by his counsel, if he is represented, the court shall, if satisfied solely on the ground that the physical and mental health of the offender disqualifies him for a sentence of preventive custody with productive hard labour, pass such sentence as is warranted by law. The court is not bound by the report of the board, but if the report says that he is unsuitable for a sentence of preventive custody with productive hard labour, the court should not pass it.

In this case Koranteng-Addow J. failed to hold any inquiry as required by the Act, and we think, with respect, that he erred. We think that a statute intended specially for the protection of the public from the depredations of habitual criminals should be honoured more in the observance than in the breach. Every statutory condition must be complied with before the power conferred under the Act can be exercised. We would, therefore, set aside the sentence passed on the applicant, and we remit the case to the High Court, Sekondi, for the learned judge to hold an inquiry and to determine whether or not this is a proper case for a sentence of protective custody and to pass the appropriate sentence accordingly. Court below to carry out.

DECISION

Sentence set aside.

Case remitted to High Court for inquiry and sentence.

S. Y. B.-B.