KWASHIE AND ANOTHER v. THE REPUBLIC [1971] 1 GLR 488

DIVISION: IN THE COURT OF APPEAL

DATE: 2 APRIL 1971

BEFORE: AZU CRABBE, ANIN AND ARCHER JJ.A

CASES REFERRED TO

(1) R. v. Austin [1961] Crim.L.R. 416, C.C.A.

(2) R. v. Silver [1964] Crim.L.R. 68, C.C.A.

(3) R. v. Connolly [1959] Crim.L.R. 530, C.C.A.

(4) R. v. Enahoro (1947) 12 W.A.C.A. 194.

(5) Awuah v. Commissioner of Police (1950) 13 W.A.C.A. 1.

(6) R. v. Blake [1962] 2 Q.B. 377; [1961] 3 W.L.R. 744; 125 J.P. 571; [1961] 3 All E.R. 125; 45 Cr.App.R. 292, C.C.A.

(7) R. v. Goldsmith and Oakey, 108 S.J. 711; [1964] Crim.L.R. 729, C.C.A.

(8) R. v. Curbishley, 107 S.J. 557; [1963] Crim.L.R. 778, C.C.A.

(9) R. v. Rhodes [1959] Crim.L.R. 138, C.C.A.

(10) R. v. Machin [1961] Crim.L.R. 844, C.C.A.

(11) R. v. Smith (No. 5) [1963] Crim.L.R. 526, C.C.A.

(12) R. v. Gosling [1964] Crim.L.R. 483, C.C.A.

(13) R. v. Cargill [1913] 2 K.B. 271; 82 L.J.K.B. 655; 108 L.T. 816; 77 J.P. 347; 29 T.L.R. 382; 23 Cox C.C. 382; 8 Cr.App.R. 224, C.C.A.

[p.490] of [1971] 1 GLR 488

(14) R. v. McConnach [1966] Crim.L.R. 291, C.C.A.

(15) R. v. Wilson, The Times, 18 April 1964.

NATURE OF PROCEEDINGS

APPEAL against sentence of seven years’ imprisonment with hard labour on a conviction of stealing contrary to section 124 of Act 129.

COUNSEL

T. K. Agadzi for the first appellant.

The second appellant in person.

F. P. Sarkodee, Senior State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the judgment of the court. On 2 May 1969, at the Criminal Session of the High Court, Accra, before Edward Wiredu J., sitting with the aid of a jury, the two appellants and four others, were arraigned on an indictment containing three counts. The first and second counts, in so far as these concern the two appellants, read as follows:

“FIRST COUNT

STATEMENT OF OFFENCE

Conspiracy to Steal: Contrary to s. 23 (1) and s. 124 of the Criminal Code Act 29/60.

PARTICULARS OF OFFENCE

No. 6445 GC/2 CHRISTIAN KWASHIE, No. 5140 EC/3 PETER A. ADJAWOO, No. 14682 EC/3 YAW WORNOO, AUGUSTINE KWAME MENSAH, KOFI NARTEY, TEI OTIBOE, On or about the 15th day of April, 1967 at Akama, village near Tema, acted together with a common purpose in committing a crime, to wit, stealing.

SECOND COUNT

STATEMENT OF OFFENCE

Stealing: Contrary to s. 124 of the Criminal Code Act 2960.

PARTICULARS OF OFFENCE

No. 6445 GC/2 CHRISTIAN KWASHIE, No. 5140 EC/3 PETER ADJAWOO, No. 14682 EC/3 YAW WORNOO, AUGUSTINE KWAME MENSAH, KOFI NARTEY AND TEI OTIBOE: On or about the 15th day of April, 1967 at Akama village, near Tema, did steal 8 cases of tobacco, 4 cases of matches, 4 cases and 9 cartons of Rothman’s King size cigarettes, all to the total of N¢3,171.00, the property of one Madam Koiki Adgbleame Torgbor.”

At the close of the case for the prosecution the learned trial judge ruled that there was no case to answer on count one, and he accordingly discharged the appellants and the others on that count. The third accused was also discharged on count two, for reasons which we think, with respect, are not quite satisfactory; but the appellants, and two other accused persons, who are not appealing, were called upon to answer the

[p.491] of [1971] 1 GLR 488 charge as laid in count two. The appellants and their confederates were found guilty by the jury, and each was sentenced to seven years’ imprisonment with hard labour.

The two appellants have each appealed to this court on grounds alleged in their notice of application for leave to appeal against conviction. The ground alleged by the first appellant is: “That the appellant is not guilty of the alleged crime to warrant conviction and sentence and should be acquitted and discharged.” The ground alleged by the second appellant also is: “That I am not guilty of the alleged crime to warrant my conviction and so I should be discharged and acquitted.”

In this court, counsel for the first appellant, Mr. Agadzi, has asked leave (1) to abandon the ground alleged in the first appellant’s notice of application, and (2) to argue a fresh ground of appeal which alleges that the sentence of seven years’ imprisonment with hard labour is excessive. We granted leave as prayed, and, accordingly, dismissed the first appellant’s application for leave to appeal against his conviction.

The second appellant, who was not represented by counsel, addressed us himself on his application. We find no merit in his argument. The evidence against him is overwhelming, and there being no legal ground on which we can interfere with the jury’s verdict, we dismiss his application. We now consider the first appellant’s appeal against sentence. This appellant was, until 14 April 1967, when the offence alleged in count two was committed, a detective constable attached to the Tema New Town Police Station. The second appellant was also, at the material time, an escort police officer at the same station. The evidence against the two appellants was that at 9 p.m. on 14 April 1967, they booked themselves in the station diary of the Tema New Town Police Station as going on enquiries. On leaving the police station the appellants called the third accused, also an escort police constable, to join them, and at about 11.30 p.m. they hired a taxi and asked the driver to drive them to a village about 22 miles from Afienya. Meanwhile, the fourth accused had at about 6.30 p.m. earlier in the evening hired a two ton Morris bus and had asked the driver to drive him to a village near Kpong to collect the furniture of his brother and take it to Tema. The fourth accused boarded the bus with two other men, and they set out on their journey at about 7 p.m. Just before reaching Afienya the bus was overtaken by a taxi, which stopped a few yards ahead. The first appellant alighted from the taxi and signalled the bus to stop. When the bus stopped the third accused came out of the taxi and boarded the bus on the instructions of the first appellant. After that both the taxi and the bus continued their journey. At the Afienya barrier, the bus was stopped and searched, but nothing incriminating was found in it, and the driver was allowed to proceed. When the taxi got to the barrier the first appellant told the policemen there that they were on their way for some investigations, and so the taxi was allowed to pass without any hindrance. The taxi again overtook the bus, and at about two miles to Kpong, the first appellant asked the driver to stop by the road-side. Soon the bus also arrived at the spot, and the fourth accused asked the driver of the bus to park behind the taxi. The two appellants

[p.492] of [1971] 1 GLR 488 and the third and fourth accused persons got out of their vehicles and walked to the house of one Peter Senancoo Ankuma. It was about midnight, and Ankuma had gone to bed. He was aroused from his sleep and was told that he had in his possession some contraband goods. The first appellant produced from his pocket and showed to him a piece of paper which he alleged was a search-warrant. The rooms of the house were thoroughly searched, and the appellants and their confederates carried away with them the goods enumerated in count two of the indictment, and deposited them in the bus. The appellants arrested Ankuma and put him into their taxi and asked him to take them to the person who had brought the goods to his house. The taxi driver drove towards the direction of Tema, and on the way the appellants told Ankuma that they were taking him to the Dodowa Police Station. But after the taxi had travelled a distance of about one mile it stopped, and the appellants asked Ankuma to go down and look for the owner of the goods. Meanwhile, the bus was heading towards Tema, and as it approached the Afienya barrier it was overtaken by the taxi, and the driver was signalled to stop. It stopped, and the taxi also stopped in front of it. The second appellant got out of the taxi and had a quiet conversation with the third accused, who was sitting in the bus. After this the taxi moved, and the third accused asked the driver of the bus to follow the taxi. At the Afienya barrier the taxi was stopped by the police, and whilst the police pretended to be inspecting it, the bus passed without stopping. The third accused instructed the driver of the bus not to stop for inspection. On the way the taxi again overtook the bus and drove straight to Tema and parked at Community No. 1. Later the bus also arrived at Community No. 1, and the fourth accused instructed the driver of the bus to drive to Kokompe in Accra and to unload the goods at his house. At about 3.30 a.m. on 15 April 1967, the orderly on duty at the Tema New Town Police Station saw the appellants return together to the station. The first appellant was in mufti, and the second appellant was dressed in police uniform. The driver of the bus carried out the instruction which he received from the fourth accused, and subsequently, during the investigation by the police into this case, one case only of tobacco was discovered in the house of the fourth accused during a search. The rest of the goods have not been recovered.

The arguments put forward by Mr. Agadzi in support of the appeal against sentence may be summarised as follows: (1) that the trial judge gave no reasons for the severe sentence that he passed on the first appellant; (2) that having regard to the value of the goods stolen the sentence is excessive; (3) that the first appellant had no record of any previous convictions and since he is a first offender he ought to have been more leniently dealt with; and (4) that the mere fact that the first appellant was a police officer was not by itself a good enough reason for imposing an unusually harsh sentence.

Dealing with the first submission, we would state that there is no obligation on a trial judge to give reasons, when imposing sentence on a convicted person. We will take the second and third submissions together.

[p.493] of [1971] 1 GLR 488

The appellants were convicted of an offence under section 124 of the Criminal Code, 1960 (Act 29), and by section 296 (5) and (6) of the Criminal Procedure Code, 1960 (Act 30), a person convicted of an offence under section 124 of the Criminal Code is liable to a sentence of 25 years’ imprisonment with hard labour. As a general proposition the maximum sentence is reserved only for the worst type of offence: see R. v. Austin [1961] Crim.L.R. 416, C.C.A.; R. v. Silver [1964] Crim.L.R. 68, C.C.A. In this case the sentence imposed is below half the maximum. The determination of the length of sentence within the statutory maximum sentence is a matter within the discretion of the trial court, and the courts always act upon the principle that the sentence imposed must bear some relation to the gravity of the offence: see R. v. Connolly [1959] Crim.L.R. 530, C.C.A. An offence which is of a very grave nature merits severe punishment: see R. v. Enahoro (1947) 12 W.A.C.A. 194 at p. 197; and also Awuah v. Commissioner of Police (1950) 13 W.A.C.A. 1 at p. 3.

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 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. These are factors not directly connected with the offence. In R. v. Blake [1962] 2 Q.B. 377, C.C.A. the court dismissed an appeal against a maximum sentence of fourteen years’ imprisonment, and in delivering the judgment of the court, Hilbery J. said at p. 381: “It has been said, rightly, that in passing sentence a judge has to consider the offence and the offender, but he has also to consider the interest of society.” A sentence must be intended to serve a purpose, and as Hilbery J. said in the Blake case at p. 383: “This sentence [of 42 years’ imprisonment for spying] had a threefold purpose. It was intended to be punitive, it was designed and calculated to deter others, and it was meant to be a safeguard to this country.”

The first appellant was a police officer trained in the detection of crime. In recent months there has been a sudden increase in the incidence of trafficking in contraband goods, and this has caused a great deal of public anxiety. The first appellant must have known that this offence was particularly grave, from the public point of view, because of the severe damage it does to this country’s economy, which is already fragile. In collaboration with two other police officers, the first appellant used his office as a police detective to seize a large quantity of goods which had been smuggled into this country. The bus carrying the goods passed through the Afienya barrier without inspection in a manner which leaves this court in no doubt that it was all prearranged. The goods were not sent to the Tema Police Station, but to the private house of one of the accomplices in Accra for the purpose of selling them for the joint benefit [p.494] of [1971] 1 GLR 488 of all who participated in this criminal adventure. Apart from one case of tobacco, none of the other goods have been recovered. We cannot but remark that there have been persistent rumours in this country that some police officers are in collusion with smugglers of contra-band goods from neighbouring countries and elsewhere.

Upon these facts, which reveal an offence of a very grave nature, the sentence must not only be punitive, but it must also be a deterrent or exemplary. The sentence must mark the disapproval of our society of such conduct by police officers. Where the court decides to impose a deterrent sentence, the value of the subject-matter of the charge, and the good record of the accused become irrelevant. Thus, in R. v. Goldsmith and Oakey [1964] Crim.L.R. 729, C.A. where two police officers appealed against their sentences of four years’ imprisonment each for conspiracy to pervert the course of justice, the court said: “When however one is giving deterrent sentences, and this was a deterrent sentence, it does not seem to the Court that it is proper to take into consideration the individual circumstances, whether it be record or of service.” (See D. A. Thomas, Sentencing-The Basic Principles [1967] Crim.L.R. 503 at p. 512.) In a footnote to the Goldsmith case D. A. Thomas said in [1967] Crim.L.R. 503 at p. 512:

“For a further illustration, see Rata, Lane and Comer, March 20,1967, where three men in their thirties appealed against sentences of eight years’ imprisonment for armed robbery: the court referred to the principle laid down in Curbishley and others, supra, that ‘in this type of case where deterrent sentences are being considered there is no real ground for distinction between individual accused on the grounds of age, record or their private domestic circumstances.”

We wish to refer briefly to a few other cases to show the attitude of an appellate court where a deterrent sentence is passed at the trial. In R. v. Rhodes [1959] Crim.L.R. 138, C.C.A. the court upheld a sentence of twelve months’ imprisonment. The prisoner, a man of 46 years of age, had pleaded guilty to a charge of forgery. The offence was committed when the prisoner, who was the occupier of a council house, forged a certificate of wages in order to qualify for a rebate of rent based upon his earnings. The prisoner was previously of good character. The appeal court declined to interfere with the sentence, because it was clear that the recorder had been minded deliberately to make an example of the prisoner and of two other men in similar cases.

In R. v. Machin [1961] Crim.L.R. 844, C.C.A. the appeal court upheld a sentence of six years’ imprisonment for rape. It was reported that:

“Lord Parker C.J., giving judgment, said that the appellant was a young man of 21 years of age with virtually a clear record. However, single women must be protected against disgraceful assaults of this kind, which were all too prevalent in this country today. An exemplary sentence was required to deter other young men from similar offences and, accordingly, there was nothing wrong in principle with the sentence of six years.” [p.495] of [1971] 1 GLR 488

In R. v. Smith (No. 5) [1963] Crim.L.R. 526, C.C.A. the appellant, employed as checker at a railway goods depot, pleaded guilty to two counts of receiving goods worth £24 that had been stolen in transit. He had no previous convictions, and had had 41 years service on railways. He also had a good army record. In the view of the appeal court since the appellant was in a position of trust and the theft of goods in transit was prevalent, it therefore found nothing wrong in principle with the sentence of fifteen months’ imprisonment.

In R. v. Gosling [1964] Crim.L.R. 483, C.C.A. the appellant, aged 35, was a market porter who had stolen property worth £10 from a market trader. He had no previous convictions, and was therefore a first offender. The appeal court, nevertheless, held that a deterrent sentence of twelve months’ imprisonment was proper despite his previous good character. We think that the argument in this case that the sentence of seven years’ imprisonment with hard labour should be reduced on account of the first appellant’s previous clean record must fail.

The final argument which Mr. Agadzi addressed to us was that the position of the first appellant ought not to have influenced the trial judge to pass a severe sentence. This is an ordinary case he said, and an ordinary sentence below seven years’ imprisonment would have been adequate. We cannot accede to this argument. In determining a sentence it is proper for the court to consider, on the one hand, the social or official position of the offender, and on the other, that the offence may be aggravated by reason of such position. In R. v. Cargill (1913) 8 Cr.App.R. 224, C.C.A. at p. 231, Channell J., in dismissing an appeal against sentence, said as follows:

“An appeal has been made to us because of the serious consequences which a conviction has to a man in this position. Punishment is sometimes imposed for the sake of others. This case revealed a very unfortunate state of things at Hull; the place was infested with a plague of very juvenile prostitutes. That being so, and a clear case found of a man assisting in that state of things, and breaking the law, it was necessary to inflict a substantial punishment. In addition to this it is very desirable, if possible, to pass a sentence on a man in a good position exactly the same as on a man in a different position; it is true the sentence is harder, but the offence is correspondingly greater; the man ought to know better, and the way of meeting that is to give exactly the same sentence; the sentence is worse, but, by reason of the prisoner’s position, the offence is worse. Even if the Court thought it would have only imposed a sentence of six months’, instead of nine months, imprisonment, it does not interfere with sentences on that ground alone.”

In R. v. McConnach [1966] Crim.L.R. 291, C.C.A. the appellant, aged 55 years, was a chief constable of police. He was convicted on eight counts of causing money, and one of causing a valuable security, to be delivered by false pretences, and eight counts of fraudulent misapplication of money. [p.496] of [1971] 1 GLR 488

The money was part of a special expenses fund under his control, which it was alleged he used for his own purposes. The amount involved was about £160. The appellant had a fine record and had lost a great deal by his conviction, including, probably, pension rights with a capital value of 25,000. In the opinion of the appeal court, high responsibilities carry high duties, and any public servant convicted of dishonesty in the course of his duty was almost invariably sent to prison. This being a case for prison the appeal court did not think the sentence passed at the trial could be said to be excessive.

The first appellant in this case used his position as a police officer to collect all the goods enumerated in count two. These were to his knowledge contraband goods, and his duty as a police officer was to arrest the offender and seize the goods. By sending the goods to a place, other than the police station, to be sold for his private benefit, the first appellant must have been aware of the seriousness of the crime he was committing. In our opinion, the learned trial judge would be justified in taking the official position of the first appellant into consideration in passing an exemplary sentence.

This court has taken note that of all the goods enumerated in count two only one case of tobacco has been recovered, and there is no question of restitution. The rest of the booty will be at the disposal of the first appellant and his accomplices to enjoy on their release from prison. It is necessary in these circumstances that a deterrent sentence must be passed so as to deprive the first appellant and his accomplices of the fruits of their criminal venture for a long time. To the first appellant we would re-echo the words that Edmund Davies J. used when sentencing Wilson, one of the main participants in “The Great Train Robbery” in R. v. Wilson, The Times, 18 April 1964: “It would be an affront if you were to be at liberty in the near future to enjoy these ill-gotten gains. We propose to ensure that such an opportunity will be denied you for a very long time.”

Finally, we would say that although the sentence appealed from may appear severe, we do not think it is excessive in view of the gravity of the offence and the necessity for an exemplary sentence. In the result we dismiss the appeal of the first appellant against his sentence of seven years’ imprisonment with hard labour.

DECISION

Appeal dismissed.

T. G. K.