Madam Patricia Asiedua popularly known as Agradaa was
handed a 15-year jail term yesterday by the Accra Circuit Court.
Many have argued that the jail term is excessive and
harsh. This write up is aimed at throwing some light on the offense she
committed and the available punishments for the court, given her circumstances,
so that readers can have an informed basis to argue on whether or not the
sentence was excessive.
Ms. Asiedua was charged amongst other offences, with,
Defrauding by false pretences. Since I do not have the benefit of the full
charge sheet, I shall discuss only the offence of defrauding by false pretences
and perhaps update myself if I see the full charge sheet and get to know of the
other offences she was charged in addition to this one.
But what readers must bear in mind is that, whenever
two or more offences are charged and proved against a person, the courts would usually
hand over sentence for all the offences. However, it is the highest sentence
that will prevail since courts usually ask that the sentences run concurrently.
So to the extent that other offences were charged against Agradaa, she might be
serving various prison terms for all those offences except that they might be subsumed
under the 15 year jail term which is the highest handed to her.
Section 131 subsection 1 of the Criminal Offences Act
of 1960, (Act 29) is the law that makes defrauding by false pretences a crime.
It says as follow: “A person who defrauds any other person by a false pretence
commits a second-degree felony”.
A person who commits a second-degree felony in Ghana is
punished in accordance with section 296 of the Criminal Procedure Act of 1960, (Act
30). The relevant subsection of section 296 is subsection 5 which says as follow: “A
person convicted of a crime under any of the following sections of the Criminal
Offences Act, 1960 (Act 29), that is to say, Sections 124, 128, 131, 138, 140,
145, 151, 152, 154, 158, 160, 165, 239, 252, 253, and 260 shall be liable to imprisonment
for a term not exceeding twenty five years”.
Agradaa was charged at least with section 131 (1) and therefore,
should ordinarily be sentenced under 296 (5) which would have given the judge
the option of giving her one day in prison for the minimum and 25 years in
prison for the maximum. This rules out any option of a fine. The law is that
she would be in prison for a maximum of 25 years. The options the judge had was
to choose between any time between one day and 25 years.
So for those who have made the argument that the judge
should have given her at least a fine, you should know that the judge is not a
lawmaker, she is just an implementer of the law as passed by parliament.
Another legitimate question that has come up is, why didn’t
the Judge give her some months or at least one year but 15 years. To be able to
answer this question lets take a look at the Jurisdiction of the courts.
Section 43 of the Courts Act 1993, Act 459 as Amended
says “A Circuit Court has original jurisdiction in all criminal matters
other than treason, offences triable on indictment and offences punishable by
death”. In ordinary words, the circuit court has power to try “semi-serious”
offences. The law has given all the misdemeanours to the District Court, and
all the Serious offences that can lead to death penalty to the High Couts only.
Section 48 Subsection 2 of the courts act says this
about District courts: “Subject to the other provisions of this section,
a District Court shall in the exercise of its jurisdiction in criminal matters
not impose a term of imprisonment exceeding 2 years or a fine exceeding 500
penalty units or both.” So as can be seen here too, the district courts
also has power to try some criminal cases, including defrauding by false pretences,
but the district Court cannot impose a prison term that is more than 2 years.
Now the offence of Defrauding by false pretences can
be tried in the District Court and also in the Circuit Court. It is sent to the
District Court if the amount involved is less than GHC 600,000 and it is sent
to the Circuit Court if the amount involved is GHC 600,000 or above. I do not
know the facts of the Agradaa case, but it is safe to say that the amounts she
defrauded people for must have been equal to or above GHc 600,000 and that is
why she was taken to the circuit court.
In considering the fact that the district court cannot
give prison punishment for more than 2 years, it means that anytime a person
commits defrauding by false pretences and the person is charged before a
district court, the punishment the person will get will be 2 years or less in
prison despite the fact that the maximum for that offense is 25 years.
I therefore submit that if a person is charged with
defrauding by false pretences before a circuit court, then it must be noted
that the person is likely to get a term of above two years and a maximum of 25
years.
Yet still, the argument can be made that the
honourable Circuit Court Judge could have given Agradaa three years since it
will still pass the test of minimum of above two years and maximum of twenty-five
years. So, what could have happened?
We now have to look at Section 300 of the Criminal Procedure
Act of 1960 (Act 30). This section says
that “where a person, having been convicted of a crime, is again
convicted of a crime, he shall be liable to increased punishment in the cases
and manner provided in the table annexed to this section and the notes thereto
or to a period of detention in this act called Preventive custody”.
TABLE FOR INCREASED PUNISHMENT
|
Nature of Conviction |
Nature of Previous Conviction |
Punishment to be substituted for the punishment prescribed |
|
Summary Conviction for a crime |
Any conviction for a similar Crime |
Twice the maximum imprisonment and twice the maximum
fine which might otherwise be inflicted. |
|
Conviction for misdemeanour |
A conviction for a similar misdemeanour; or for a
similar felony; or two summary convictions for similar crimes |
Imprisonment for five years in the discretion of the
court. |
|
Conviction for Second Degree Felony |
A conviction for any felony; or a conviction for a
similar misdemeanour for which a sentence of more than six months imprisonment
was passed. |
Imprisonment for fourteen years; and, if the court
so directs, police supervision for not more than five years. |
Considering that Mama Pat, A.K.A Agradaa has had at
least two former convictions, and this current conviction is a second-degree
felony, I believe the 15-year jail term handed over by the Circuit Court is
consistent with the law. This is without prejudice to any appeal that her
lawyers might want to explore.
Section 132 actually defines or explains what is meant by defrauding by false pretences in the following words: “A person defrauds by false pretences if, by means of false pretence, or by personation, that person obtains the consent of another person with or transfer the ownership of a thing.” Watch out and avoid getting into trouble.
Warning:
My writeups are for the purpose of giving general
education to the public and not tailored legal advice for any reader. You are
advised to consult a lawyer of your choice whenever you have a legal question
in order to avoid getting into big troubles.
Please share, comment and follow this blog.
Richard Nii Amarh ESQ
Comments
Post a Comment