HIGH COURT, KUMASI
30 APRIL 1971
BEFORE: MENSA BOISON J.
CASE REFERRED TO
R. v. Enahoro (1947) 12 W.A.C.A. 194.
NATURE OF PROCEEDINGS
APPEAL against conviction for causing damage to property entered by the District Court, Grade II, Bekwai. The facts are sufficiently set out in the judgment of Mensa Boison J.
COUNSEL
Appellant in person.
S. K. Agbanu, State Attorney, for the respondent.
JUDGMENT OF MENSA BOISON J.
The appellant pleaded guilty to a count of assault and of causing damage to property contrary to sections 84 and 172 respectively of the Criminal Code, 1960 (Act 29), before the District Court Grade II, Bekwai. He was accordingly convicted by the trial magistrate, who cautioned and discharged the appellant on the first count and imposed a fine of N¢400.00 or in default 24 months’ imprisonment as regards the second count. It is against this sentence on the second count that the appellant now appeals.
The facts are not relevant, save that the articles which the appellant damaged were personal articles of clothing and household gear of the complainant, and in all valued at N¢36.25. These articles belonged to a sister of the appellant and were damaged in a fracas in the house after the accused had been drinking at a funeral. Further the appellant admitted one previous conviction for causing harm, for which he was sentenced to twelve month’s imprisonment with hard labour.
From the facts and the previous record as given, the magistrate thought the appellant was a nuisance to the community, and decided to apply the Courts Decree, 1966 (N. L. C. D. 84), para. 51 (3), which empowers a district court to impose twice its maximum punishment where increased
[p.74] of [1971] 2 GLR 72
punishment may be imposed upon a person previously convicted of a crime. It was as a result of this view that the magistrate imposed what obviously is a harsh sentence of N¢400.00 or 24 months’ imprisonment with hard labour. In this case the magistrate had stated that the appellant was a trouble maker “in a decent society, and he is to be kept . . . in the prison for some time.” It is obvious that he intended the appellant to be kept in prison. Why then the option of a fine of as much as N¢400.00 against a total value of only N¢36.25 of articles damaged? If it is thought that the previous record of an accused is unsavoury, and that a term of imprisonment in the circumstances would be the best punishment, the court ought to be realistic and straight way mete out a term of imprisonment.
In my opinion, therefore, where the court’s primary object is to keep the accused in prison it is improper to impose so huge a fine as an option, with the obvious effect that the accused will find it far beyond his means and thereby achieve the desired result of the accused serving a term of imprisonment.
On the facts of this case, one may well think an option of a fine would meet the case; because if paid the complainant could be given some compensation for the damaged articles. The fine, however, must be related to the value at stake. I am of the opinion that as compared with the value of N¢36.25 the fine of N¢400.00 was grossly excessive in all the circumstances of the case. The magistrate in my view erred in the exercise of his discretion in the manner of the sentence on the second count.
Besides the magistrate appeared to have decided to enhance the sentence of the appellant to the maximum of two years by reason of his admitted previous conviction. In this he relied on N.L.C.D. 84, para. 51 (3),
which provides that: [His lordship quoted paragraph 51 (3) as set out in the headnote and continued:] In R. v. Enahoro (1947) 12 W.A.C.A. 194 the court at p. 197 said:
“It is a well-established principle that, in taking into consideration previous convictions, only those which are in respect of offences which are similar or which partake of something of the same nature as that of which accused is presently convicted should be considered.”
In my opinion although N.L.C.D. 84, para. 51 (3), speaks simply of “increased punishment [which] may be imposed upon a person previously convicted of a crime,” the previous crime must be similar to the present offence of which the accused is convicted unless the enactment, expressly states otherwise. Besides the use of the permissive “may” enables the court in exercising its discretion to consider such matters as the lapse of time since the previous offence. Consequently if the previous conviction occurred years ago the court may well ignore it. It is therefore essential for a proper consideration of the effect of a previous conviction that the date of the last conviction at least should be stated.
[p.75] of [1971] 2 GLR 72
In the present case the previous offence of causing harm, was not similar to the offence of causing damage. Besides as the date of the previous conviction was not stated, I am of the opinion that the magistrate wrongly exercised his discretion on wrong principles when he imposed the increased sentence of two years’ imprisonment with hard labour in default of the N¢400.00 as fine. It was for the above reasons that this court, on 2 April, allowed the appeal on the second count in setting aside the sentence of N¢400.00 or 24 months’ imprisonment with hard labour, and in its place sentenced the appellant to four months’ imprisonment with hard labour.
DECISION
Appeal allowed in part.
[Reported by S. OSAFO, LL.B. (GHANA).]
