Law: Do deterrent sentences serve their purpose?

The first murder took place on earth, with the killing of Abel by Cain, and God pronounced on Cain a deterrent sentence: So now you are cursed from the earth, which has opened its mouth to receive your brother’s blood from your hand.

When you till the ground, it shall no longer yield its strength to you. A fugitive and a vagabond you shall be on the earth. (Gen 4:11-12 NKJV)

Severe though this sentence is, as punishment to Cain, humanity has not ceased to commit horrendous murders and other crimes against fellow human beings, and, as population increases, so is there a proportional increase in such horrid crimes.

We shall, therefore, discuss the subject whether deterrent sentences serve their purpose in Ghana’s criminal jurisprudence.

The deterrent specie of punishment springs from the sociological jurisprudence of law, that establishes a symbiotic relationship between societal goals and law.

The thinking is that law is an attribute of society for the creation of order and security, and that when a failure of law occurs, there is a corresponding break down of the social order.

For the avoidance of a break up of social order, punishment must be of a type to discourage, to prevent, or to deter repeat performance of the crime by others.

The punishment must be severe, certain and swift, and the loss of personal liberty to the person must be more than the gain of the crime.

Cases

Let’s look at some specimen cases. In Alan William Hodgeson vrs The Republic (2009) NO. J3/1/2009 CA, the Appellant was arraigned before the High Court (Fast Track Division) with five others, on narcotic drug related offences under the Narcotic Drugs (Control, Enforcement and Sanctions) Law, P. N. D. C. L 236.

The Appellant was charged on two counts of engaging in criminal conspiracy to commit an offence relating to Narcotic Drug and possessing Narcotic Drug without lawful authority, contrary to sections 56 (c) and 2, respectively, of the Narcotic Drugs (Control, Enforcement and Sanctions) Law of 1990, P. N. D. C. Law 236.

The appellant and the accomplices imported 588.33 kilograms of cocaine into the country, and, through the assistance of International Narcotic Agencies, the Ghana Narcotic officers arrested the appellant and the rest in the house of one of them. The appellant was sentenced to 20 years I.H.L. on both counts. His appeal was dismissed at the court of appeal. In confirming the sentence Owusu (Ms) JSC said:

“But taking into consideration the method or design of the mode of importation of the offending drug – cocaine – into the country and by the very huge quantity of the drugs brought in and the modus operandi of all the accused persons in this case, they appear to be leaders or grand masters for the distribution of this condemned drug in Ghana and elsewhere.

In view of this, I am minded to mete out to them a deterrent sentence…”

With Kwashie and Another v. The Republic (1971) 1 GLR 488-49 CA, the first appellant used his office as a police detective to seize a large quantity of goods that had been smuggled into the country. Rather than sending the goods to the police station, he and two other policemen sent the goods to the private house of one of the accomplices, for the purpose of selling them for the benefit of all who participated.

The appellants and their accomplices were found guilty of stealing, contrary to section 124 of Act 29, and were each sentenced to seven years' imprisonment with hard labour.

On appeal against the sentence, counsel for the appellant argued that the sentence was excessive and this is what the court, per

Crabbe Azu JA said:

“Since the offence was of a very grave nature, the sentence must not only have been punitive but it must also have been deterrent or exemplary in order to mark the disapproval of society of such conduct by police officers…”

The last case is that of Apaloo and Others v. The Republic (1975) 1 GLR 156-192 CA. In this case, the appellants were caught with machines for forging currency notes to be put in circulation, contrary to the Currency Act, 1964 (Act 242), s. 19 (a) (ii).

They were found guilty and sentenced to 15 years imprisonment with hard labour. On appeal the sentences were reduced to 10 years. In his judgment, Azu Crabbe J.A. stated the factors that do influence sentencing in criminal matters. He set forth:

“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.”

Factors

No doubt, these factors have influenced sentencing in Ghanaian courts, as seen in these few cited cases. In reality, there are different types of sentencing or punishment, depending on the nature of crime committed.

In answering the question whether deterrent sentences serve their purpose or not, it would have been instructive to Ghana’s criminal jurisprudence, if there were studies conducted into this mode of punishment.

When armed robbers are sentenced to 40, 50, 70 years imprisonment as deterrent punishment, have such sentences abated armed robbery in Ghana?

I shall say no, although I have no statistics to support my opinion.

As a matter of fact, the very first few hours in prison are enough to make a convict regret ever engaging in the crime committed.

So that if to show societal disapproval of the crime, deterrent sentence must be given, it must not be excessive, running into years; 15 years is adequate. We must not forget that we don’t imprison criminals to destroy their lives. We imprison to reform; to teach humility; to enforce remorse, and induce self-transformation.

Deterrent sentences may appease society, depending on the horror of a crime, but since it does not stop the repeat of such crimes, it means deterrent do not serve the import of the sentences. Sentences must be reasonable and reformative.

The writer is a lawyer.

E-mail: akwesihu@yahoo.com