By: Rita Ofosua Appiah, Esq.
What is an enhanced sentence?
For every criminal offence, there is an offence creating section and a punishment section. Without these two, an action cannot be considered a crime. While the offence creating section declares an act or omission to be a crime, the punishment section determines the penalty or sentence to be imposed on an offender who commits the prohibited act. Ghana has different types of punishment, including death, imprisonment and fines. Typically, judges impose sentences according to the specifications and limits of the law. The law may prescribe the type of punishment, the maximum and minimum sentence, or the maximum and minimum fine. For first time offenders, this process is often clear cut.
There are instances where the law requires that a stipulated sentence or punishment be enhanced or increased. This means that, in addition to the sentence already indicated in the punishment section, an additional punishment is imposed on the offender. This results in an offender serving a more severe or longer sentence. Such a sentence is referred to as an enhanced sentence.
An enhanced sentence is defined as “an additional form of punishment that can be added to the sentence in a criminal case because some fact justifies it.”[1] It has also been described as “a sentence which is increased by a prior conviction or the serious nature of the circumstances involved from one classification of offence to another higher-level classification of offence.”[2]
In some jurisdictions, enhanced sentences are imposed based on the surrounding circumstances of each case, such as previous convictions and extreme violence in the commission of the offence. Ghanaian criminal law provides for enhanced sentences for repeat offenders as well. Section 300(1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides as follows:
(1) 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”, under Part XIII of this Code.
(2) Nothing in this section, or in the said Table, shall exempt a person from any liability to which he may be subject under any enactment, to death or to any greater or other punishment than the punishment mentioned in the said Table, and any different punishment to which he is liable may be inflicted in addition to the punishments mentioned in the said Table.
This section is not applicable to crimes grounded in negligence.[3] It is also not applicable to offences committed by a person before attaining the age of 18 years.[4]
From section 300 of Act 30, where a person is convicted of an offence and is again convicted of another offence, the law mandates the court to impose an enhanced sentence as provided for in the table below, or to preventive detention under Part XIII.
Table 1. Scale of Increased Punishments for Repetition of Crime
| Nature of conviction | Nature of previous convictions | Punishment to be substituted for the punishment prescribed |
| Summary conviction for criminal offence | A conviction for a similar criminal offence | 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 criminal offence | Imprisonment for five years in the discretion of the Court |
| Conviction for a second-degree felony | A conviction for a 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 |
Preventive Detention
Part XIII of Act 30 on preventive detention has been repealed by the Punishment of Habitual Criminals Act, 1963 (Act 192). Act 192 however makes provision for enhanced sentences for repeat offenders. The purpose of the Act is to protect citizens against habitual offenders by imposing long sentences. This was cited in the case of Aikins alias Mensah v The State[5] as follows:
“There can be no doubt, in our view, that the main object of the Act is to empower the courts, when they consider it expedient for the protection of the public, to sentence habitual criminals, that is, those who have shown by their conduct that they are recidivists in crime, to a long period of incarceration. Preventive detention ought to be passed only where prolonged detention is necessary for the protection of the public: per Lord Goddard C.J. in R. v. Barret.”
The Aikins case, supra, gives the instances where the Act is applicable to a convict. It provides as follows:
“The Act is intended to apply to habitual criminals only, and not to every person who has the statutory number of convictions: see R. v. Askew. It should be regarded as an exceptional sentence and not merely as an alternative to imprisonment. Further, the court leans against preventive custody when the offence under consideration is wholly out of character with offences previously committed: R. v. Cannell.”
Section 1 provides that:
- Where a person who is not less than twenty years of age
- Is convicted of an offence other than an offence for which that person is liable to suffer death, and
- has been convicted previously of at least two offences, each of which is either a felony or a misdemeanour, and
- It appears to the High Court after enquiring into the circumstances of the case, that by reason of that person’s criminal habits or tendencies or of that person’s association with persons of bad character it is expedient for the protection of the public that that person should be detained in custody for a substantial period,
the court shall, subject to section 2, pass, in lieu of any other sentence, a sentence of preventive custody with productive hard labour for a term, which is not less than ten years, that the Court may determine.
The conditions in section 1 of Act 192 must be present before a court can pronounce a sentence of preventive custody. The courts have ruled that, in addition to the conditions in section 1, a convicting court must evaluate the circumstances of each case before determining the appropriate sentence to impose on the convict.[6] The Aikins case, supra, provided some of the circumstances to be considered and indicated that the list was not exhaustive. The court held that a court must inquire into the following:
“a) The circumstances under which the offence was committed, i.e. whether the crime was well-planned or was accompanied with violence;
(b) The criminal habits or proclivities of the offender;
(c) Whether the offender has shown by his conduct that previous sentences had had no effect upon him; and
(d) whether the offender has shown that he was able to, and had held, a job for a substantial period immediately before the offence for which he has been convicted for sentence or has ‘gone straight’ for at least twelve months before conviction.”
The facts presented during the enquiry must be on oath and the parties must be given the opportunity to cross-examine the deponent.[7]
Where all the conditions under section 1 are met and an enquiry has been made, and the court is satisfied that the case is suitable for preventive custody, the court may make an enquiry into the mental capacity of the convict if it appears that the accused is unsuited for preventive custody. Section 2 of Act 192 provides as follows:
(1) Where in the case of any offender to whom subsection (1) of the foregoing section applies the High Court has reason to believe that his physical or mental condition is such as to render him unsuitable for a sentence of preventive custody with productive hard labour under that section, the Court shall, before passing such sentence
(a) cause an enquiry to be held into, and a written report to be made on, the physical and mental health of that offender by a medical Board consisting of not fewer than two suitably qualified medical practitioners appointed by the Court after consultation with the Chief Administrator of the Ministry of Health;
(b) consider the report of the Board and take such further medical evidence concerning the offender as the Court thinks fit; and
(c) furnish the offender or his lawyer with a copy of the report.
(2) Where, having regard to such report or further medical evidence, or to any representations made by or on behalf of the offender, the Court is satisfied that his physical or mental health is such as to render him unsuitable for a sentence of preventive custody with productive hard labour, but for no other reason, the Court shall (in lieu of such sentence) pass such other sentence as is authorised by law in relation to the offence of which he is convicted.
It is only the High Court that has the power to impose sentences under Act 192. Lower courts which convict offenders to whom the Act applies must commit the offender to the High Court for sentencing upon conviction.[8] The conviction of the lower court is treated as a decision of the High Court after sentencing by the High Court, and both conviction and sentence are subject to appeal to the Court of Appeal.[9]
Erroneous Conviction from Lower Courts
The courts have held that the High Court has the power to interfere with a conviction where it is found to be erroneous.
The case of Amoah v. The State[10] provides as follows:
“Our view is that this section vests the High Court with jurisdiction over the whole case, to pass sentence as it would pass in a case tried by it, that is, upon proper conviction; and makes the conviction a conviction by the High Court, no longer a judgment of the district or circuit court, appealable only to the Court of Appeal. Therefore, if the High Court, in the exercise of its jurisdiction over the case, comes to the conclusion that the conviction is bad, it is in duty bound to quash the conviction, and not indulge in illegality by passing sentence upon a person where the condition precedent to sentence, i.e. lawful or proper conviction, does not exist.Therefore, by declining to interfere with the conviction which he knew was obviously wrong, the learned judge brought about a miscarriage of justice.”
In practice, the provisions of Act 192 are rarely invoked or applied.
Are the provisions in section 300 of Act 30 applicable to all repeat offenders?
Does the statutory provision on enhanced sentencing apply to all repeat offenders? The courts have ruled that certain conditions must be satisfied. The first is that the convict must have finished serving the previous conviction. In the case of Amzat Bello v Commissioner of Police[11] it was held by Van Lare, JSC that:
“A previous conviction to be taken into consideration in passing sentence is one in which the sentence imposed has been served, and after which the person has been subsequently convicted, but not, as in the instant case, where the appellant is still serving the alleged previous conviction and the offence was not committed after serving the earlier sentence.”
Secondly, the current conviction must be for an offence which is similar to the offence in the previous conviction. In the case of Kanajarga v The Republic,[12] it was held by Edusei J (as he then was) that:
“The previous conviction by reason of which a court can impose an increased sentence must be one similar in nature to that which the accused is charged and convicted before that court.”
Again, in the case of Amoah v The Republic,[13] it was held that the previous offence of causing harm was not similar to the offence of causing unlawful damage. And in the case of Francis Dorgbettor v The Republic,[14] it was held as follows:
“From the table, a person summarily convicted for a criminal offence could be given twice the maximum imprisonment and twice the maximum fine which might otherwise be inflicted. The law says that the previous offence must be similar to the instant crime or offence for which the accused has been convicted and the previous conviction must be recent.”
From the above cases, enhanced sentencing under section 300 of Act 30 is applicable if:
- The offences are similar in nature.
- The sentence in the previous conviction is fully served.
- The subsequent offence must have been committed after the earlier sentence was served.
- And the previous conviction is recent. The courts however did not specify how recent the previous conviction must be.
The rationale for imposing enhanced sentences is to prevent persons from repeating the offences.[15] Punishments are imposed by the court for fivefold purposes. They include punitive and reformative objectives, appeasement of society, deterrence, and safeguarding society.[16] The law thus expects an ex-convict to be transformed after being incarcerated and sentenced and not to have another brush with the law after his or her release. Enhanced sentences are therefore usually imposed to serve deterrent and punitive purposes.
Proof of Previous Conviction
This is usually done after a person has been convicted and before sentencing. It is proven by furnishing the court with a certified copy of the previous sentence or order, a certificate signed by the officer in charge of the prison in which he was incarcerated or the warrant of commitment under which the punishment was suffered, together with evidence as to the identity of the accused with the person so convicted or acquitted.[17] It is the responsibility of the prosecution to bring the previous conviction to the attention of the court, and the convict may accept or deny it. The court has a duty to investigate a previous conviction claim. In the Francis Dorgbettor v The Republic[18] case, the court stated that:
“The law says again that a record of the previous conviction should be made, and the accused should admit or deny it. The previous conviction must be brought to the notice of the trial court by the prosecution after the accused has been convicted and awaiting sentence and the trial court is enjoined to investigate the truth or otherwise of the alleged previous conviction.”
Conclusion
Enhanced sentencing under Ghanaian law serves as a mechanism for addressing recidivism and safeguarding the public from habitual offenders. However, its application is not automatic. The statutory requirements under section 300 of Act 30 and Act 192 must be strictly satisfied, and the courts have consistently emphasized the need for careful judicial enquiry before imposing increased punishment. The law therefore balances deterrence and public protection with procedural safeguards to ensure that enhanced sentences are imposed only in appropriate cases. A proper understanding of these conditions remains essential for both prosecution and defence in sentencing proceedings.
Note: The author is a criminal justice practitioner in the Republic of Ghana with practical experience in criminal trials.
[1] https://www.legalmatch.com/law-library/article/sentencing-enhancement-lawyers.html
[2] https://definitions.uslegal.com/e/enhanced-sentence/
[3] 300(3) of Act 30
[4] 300(4) of Act 30
[5] [1966] GLR 170
[6] Ibid
[7] Ibid
[8] Section 3(1) of Act 19
[9] Section 3(2) of Act 192
[10] [1966] G.L.R. 737, C.A
[11] (Practice Note) [1961] GLR 573
[12] (1969) C.C. 9
[13] [1971] 2 GLR 72-75
[14] [2012] DLCA3182
[15] Dennis Dominic Adjei, Criminal Procedure and Practice in Ghana
[16] Mohammed Kamil v The Republic (2011) SCGLR @300
[17] Section 117 of Act 30
[18] [2012] DLCA3182
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