REPUBLIC v. BOFAH AND ANOTHER [1968] GLR 620

DIVISION: HIGH COURT, SUNYANI

DATE: 8 JULY 1968

BEFORE: BAIDOO J.

NATURE OF PROCEEDINGS

APPEAL by the Republic from a judgment of the Circuit Court, Sunyani, in which the trial circuit judge cautioned and discharged the accused persons after binding them over to be of good behaviour for two years. The facts are fully stated in the judgment.

COUNSEL

Kaleo Bioh, State Attorney, for the Republic.

Dr. I. L. Ohene-Djan for the respondents.

JUDGMENT OF BAIDOO J.

The two above-named respondents were tried by his honour judge A. E. Sampson, circuit judge at Acherensua. They both pleaded guilty and were duly convicted by the court on 12 June 1968. The particulars of their offence as disclosed on the charge sheet were as follows:

“(1) James Akwasi Bofah, produce clerk, (2) Kwame Meduo, cashier respectively of the State Cocoa Marketing Board, Hwidiem: for that you between the months of September 1967 and January 1968 at Hwidiem in the Brong-Ahafo circuit and within the jurisdiction of this court, did steal cash the sum of N¢2,014. 69, the property of the State Cocoa Marketing Board.”

Dissatisfied with the sentences imposed by the trial circuit judge, the State had lodged this appeal against sentence only. Two grounds of appeal were filed and argued and these were:

[p.622] of [1968] GLR 620

(1) That the judge erred in law in imposing what amounts to a double punishment.

(2) That the judge’s exercise of his power of punishment was injudicious and therefore wrong in law.

The record of the proceedings before the circuit judge as typed and presented to this court was attacked or challenged by both the state attorney and Dr. Ohene-Djan, counsel for the two respondents as being inaccurate. Both counsel contended that the learned circuit judge imposed in respect of each of the accused persons a double sentence. The circuit judge on convicting each accused person first of all made an order that each should sign a bond in the sum of N¢500.00 in his own recognisance to be of good behaviour for a period of two years or in default to go to prison for twelve months with hard labour. After this first order the circuit judge proceeded to make a second order cautioning and discharging each of the accused persons. This latter order has, however, been omitted from the appeal record. After reading the affidavit of the Deputy Superintendent of Police, Daniel Boateng, who prosecuted the case and examining the original record book tendered by Mr. Kitson-Mills, the circuit court registrar, I am satisfied that the “caution and discharge” order was also made but later cancelled by the trial circuit judge. In his evidence before this court, Mr. Kitson-Mills explained that it was some five days later on, during the compilation of the appeal proceedings that the circuit judge himself cancelled and initialled it, and authorised that it be deleted from the copy of the proceedings. The learned circuit judge failed to appreciate that an order of the court, made five days previously should stand until the same has been corrected in the appellate court. I believe he cancelled that order because he must have realised that having bound over a convicted accused, it is rather odd to caution and discharge him at the same time. Before proceeding to consider the question of sentence I desire to look into the point whether the respondents were properly convicted of the offence of stealing, especially as an attempt was made in the course of the proceedings in this court to challenge the propriety of the convictions herein. A cross-appeal was filed on 8 July 1968 in this court and one of the grounds of the cross-appeal was “that the appellants pleaded guilty to the charge because of inducement by the prosecution and promise that if the appellants pleaded guilty they would be dealt with leniently.” It is not surprising that learned counsel for the accused, one of the two counsel who defended them in the court below, applied in

[p.623] of [1968] GLR 620 the course of the hearing of the appeal to withdraw the cross-appeal, since each accused was well represented in the court below by counsel both of whom, far from objecting to their pleas of guilty, stated that the accusation by the prosecution was admitted and then both counsel proceeded to urge the court to deal leniently with their clients. No attempt was made by either of the two defence counsel to challenge the propriety of the pleas of guilty and I am satisfied in all the circumstances of the case that the accused persons pleaded guilty knowing fully well the nature of the charge preferred against them and in full appreciation of the legal consequences of their plea. I therefore agree with the submission of the learned state attorney that the accused persons were properly convicted and that they have no right of appeal in view of section 324 (3) of the Criminal Procedure Code, 1960 (Act 30). The cross-appeal belatedly filed by the accused is therefore struck out as withdrawn. The only appeal before this court is therefore the appeal filed by the State against the sentences imposed by the trial court. There being no appeal against conviction, the conviction of each accused stands. I hold that each accused pleaded guilty fully appreciating the nature of the charge and each was therefore properly convicted. The following cases may be cited in support of the convictions of the accused persons: R. v. Lawson (1952) 36 Cr.App.R. 30; R. v. Tomlin [1954] 2 All E.R. 272, C.C.A. and Aboagye v. Commissioner of Police, Supreme Court, Cyclostyled Judgments, January-June 1962, p. 54 unreported It is the question of sentence that baffles my understanding. I am utterly at a loss to appreciate the grounds the learned circuit judge advanced for taking such a surprisingly lenient view of an offence which involved the embezzlement of such a huge amount of public money. The first accused was described by his counsel as a young person of tender age even though his age was disclosed to be 24 years. He was further described as a married man having a young wife and six children the last of whom is only three weeks old. The second accused was stated to be 67 years old and having three wives and sixteen children some of whom are receiving education at various schools, with one in the United Kingdom. These matters seemed to have weighed so much with the circuit judge. It is true that both are first offenders but the trial court erred in my view in failing to appreciate that the embezzlement of State or public funds is an offence of such frequent occurrence and since the case before him involved the stealing of the huge amount of N¢2,014.69 the court should have taken a serious view of the matter and imposed a sentence tough enough to serve as a deterrent. [p.624] of [1968] GLR 620

The learned State attorney called to my mind a number of cases where really stiff sentences were imposed by the same learned judge. In Republic v. Boateng, the same judge sentenced on 13 January 1968 an accused to three years’ imprisonment with hard labour in very similar circumstances. In that case the amount stolen was N¢1,500.00 and there also the full amount was refunded, and although the accused was a first offender the court viewing the offence as rather grave imposed three years’ imprisonment with hard labour as sentence. In the case of the Republic v. Opoku, the same judge on 25 March 1968 sentenced an accused charged with stealing cloths valued at N¢63.00 to twelve months’ imprisonment with hard labour even though the accused was a first offender. On 2 February 1968 Tailor Issaka Moshie who was convicted for dishonestly receiving a wireless set worth N¢27.00 was sentenced to two years’ imprisonment with hard labour even though the accused was a first offender. Other examples could be cited but I desire to end with the citation of the case against Albert Owusu Mensah and Kwaku Awuah where both accused were each sentenced on 1 April 1968 to two years’ imprisonment with hard labour for stealing (on four counts involving N¢649.65, ¢556.64, ¢581.40 and ¢88.00) the property of Bechem Co-operative Society. I agree with the contention of the learned state attorney that the amount involved in this instant case being so big the respondents should not have been merely bound over or cautioned and discharged. I therefore allow the appeal as to sentence and set aside the sentences imposed by the trial court. In lieu thereof I substitute a sentence of two years’ imprisonment with hard labour in respect of each accused to serve as sufficient deterrent to others due to the repeated nature of this type of offence. The restitution order to stand.

DECISION

Appeal allowed.

S. O.