By: Her Worship Georgette Carmel Lutterodt, Esq., Her Worship Anastacia Yaa Agyeiwaa Karimu, Esq. and Her Worship Dromo Afarley Djarbeng, Esq.

Introduction

The introduction of community service into Ghana’s sentencing framework presents defence counsel with an important opportunity. The question, however, is not simply whether an accused person deserves “mercy”. The more appropriate question is whether, having regard to the offence, the offender and the interests of society, a non-custodial sentence can adequately achieve the purposes of punishment.

That distinction is important because sentencing is a judicial exercise involving the balance of competing considerations. The Supreme Court has repeatedly held that first-offender status, youth and other mitigating circumstances do not create an entitlement to a lesser sentence. The seriousness of the offence remains a primary consideration. See Kwashie v The Republic [1971] 1 GLR 488, Gligah & Atiso v The Republic [2010] SCGLR 870, Kamil v The Republic [2011] 1 SCGLR 300 and Frimpong alias Iboman v The Republic [2012] 1 SCGLR 297. The Supreme Court reaffirmed this position in Owusu Banahene v The Republic [2017–2020] SCGLR 606.

The task of counsel, therefore, is to demonstrate why community service is sufficient punishment in the circumstances of the particular case.

The First Question: Is Custody Necessary?

The most persuasive submission counsel can make is not that the offender should escape punishment, but that imprisonment is unnecessary. Counsel should invite the court to consider whether the objectives of sentencing, being punishment, deterrence, rehabilitation, protection of society and accountability, can adequately be achieved through a community-based sentence. This requires counsel to place before the court evidence concerning the offender’s character, conduct before and after the offence, likelihood of reoffending, family circumstances, employment and attitude towards the conviction.

The submission should essentially be:

My Lord, the law stipulates that the convict must be punished. The question is whether justice requires that punishment to take the form of imprisonment. We respectfully submit that, in the circumstances of this case, a properly supervised community service order would adequately punish, deter and rehabilitate the convict without the unnecessary consequences of incarceration.

That is a stronger argument than a general plea for leniency.

First-Offender Status: A Mitigating Factor, Not an Entitlement

Counsel should establish that the conviction represents an isolated departure from the offender’s normal behaviour. A clean criminal record may demonstrate that the offender is not a habitual criminal and that there is no established pattern requiring his removal from society. However, counsel must be careful not to overstate this factor. In Owusu Banahene v The Republic, the Supreme Court made it clear that being a first offender does not automatically entitle an accused to a lighter sentence. The seriousness of the offence must first be considered.

The proper submission is therefore:

My Lord, although first-offender status does not determine the sentence, it is relevant to the assessment of this particular offender. There is no previous conviction or demonstrated pattern of similar conduct. The present offence appears to be an isolated departure from an otherwise lawful life.

That invites the court to consider the offender rather than merely the label “first offender”.

Genuine Remorse and Acceptance of Responsibility

A second important consideration is remorse. Counsel should avoid simply telling the court that the convict is “very sorry”. Genuine remorse should be demonstrated through conduct. Relevant matters that are considered may include:

• an early plea of guilty;
• cooperation with the police;
• compliance with bail conditions;
• voluntary restitution;
• compensation or other restorative steps;
• an apology accompanied by appropriate conduct; and
• absence of further offending.

Recent Ghanaian decisions recognise remorse, restitution, first-offender status and a guilty plea as relevant mitigating circumstances. In Amanquah v S CR/0457/2024) [2025] GHAHC 131, for example, remorse, refund and first-offender status were relied upon in reducing sentence. Counsel should therefore tell the court:

My Lord, the remorse demonstrated by the convict is not merely a statement from the dock. His conduct since the commission of the offence demonstrates acceptance of responsibility.

This is particularly powerful where the offender has voluntarily repaired some of the harm caused.

Conduct After the Offence

The period between the commission of the offence and sentencing provides the court with useful evidence about the offender. Where an accused has been granted bail and has: never absconded; attended court consistently; reported to the police as directed; complied with bail conditions; remained employed; and committed no further offence, counsel should expressly bring these matters to the attention of the court. They demonstrate the offender’s ability to live within the community while complying with legal obligations. Counsel can submit:

My Lord, the convict has already demonstrated that he can live responsibly under conditions imposed by the law. He has not absconded, has complied with his reporting obligations and has attended court whenever required. These are objective indicators that he is capable of complying with a structured community service order.

Family Responsibilities and Employment

Counsel may also rely on the effect imprisonment would have on innocent third parties. The court may be invited to consider whether the offender is the principal breadwinner for children, a spouse, elderly parents or other dependants. The argument should not be that family responsibilities excuse the offence. Rather:

My Lord, the convict’s dependants should not be punished for his wrongdoing where the legitimate objectives of sentencing can be achieved by a lawful non-custodial sentence.

Similarly, gainful employment may be relevant. Employment provides stability, supports dependants and facilitates reintegration. Counsel should therefore submit that community service can punish the offender while preserving a productive livelihood, rather than unnecessarily destroying it.

The Guilty Plea and Assistance to the Police

Where the offender pleaded guilty at the earliest opportunity, counsel should remind the court that the plea saved judicial time and spared witnesses the burden of a trial. Similarly, assistance rendered to investigators should be placed before the court. These matters do not extinguish criminal responsibility, but they may properly be taken into account in mitigation.

The recent decision in S v Asumbasiya and Another (B7/001/2026) [2026] GHADC 6 illustrates the point: the District Court treated the guilty plea and first-offender status as mitigating factors, although the aggravating circumstance of breach of trust ultimately justified imprisonment.

The Seriousness and Prevalence of the Offence

Counsel should never ignore the seriousness of the offence. Indeed, acknowledging it may make the mitigation more credible. The court must consider matters such as: the nature and seriousness of the offence; the manner in which it was committed; whether it was premeditated; the harm caused; prevalence of the offence; and the need for deterrence. These principles are reflected in Kwashie v The Republic, Adu Boahene v The Republic [1972] 1 GLR 70 and Kamil v The Republic.  Counsel should therefore say:

My Lord, we do not minimise the seriousness of the offence. We respectfully submit, however, that the circumstances of this particular offender do not demonstrate a need for incarceration in order to protect society or achieve deterrence.

This approach allows the court to impose a meaningful sentence without appearing to trivialise the offence.

Community Service Is Punishment

One of the most important submissions counsel should make is that community service is not an absence of punishment. It requires the offender to surrender his time and labour to the community under supervision. It therefore imposes a real obligation and carries consequences for non-compliance.

The argument should be:

My Lord, the convict is not asking to go unpunished. He is asking the Court to impose a different form of punishment. One which requires him to give back to the community while addressing the factors that contributed to his offending.

Juvenile Offenders

The argument is even more nuanced where the offender is a juvenile. The Juvenile Justice Act, 2003 (Act 653) provides a separate sentencing framework. Section 29 sets out various methods of dealing with a juvenile upon conviction, including discharge, probation, commitment to a relative and placement in a correctional centre. Section 31 provides for probation. Counsel should make particular use of the Social Enquiry Report and the Probation Officer’s recommendations. The report may assist the court in determining the juvenile’s family circumstances, their educational background, attitude to the offence, risk of reoffending, status of parental supervision, prospects of rehabilitation and the appropriate intervention.

In Mensah v The Republic Suit No: F22/06/2024, the High Court considered the Social Enquiry Report and recognised that youthful age and first-offender status must be considered alongside the juvenile’s actual behaviour and prospects of reform. The Social Enquiry Report is persuasive rather than binding. Where a court departs from its recommendations, reasons should be given.  Thus, counsel representing a juvenile should not merely plead youth. Counsel should demonstrate why rehabilitation within the community is more appropriate than institutionalisation.

The Submission Counsel Should Ultimately Make

The best mitigation plea for community service should bring all these considerations together, for example:

My Lord, this is a convict who is eligible for a non-custodial sentence. He is a first offender with no demonstrated pattern of criminal behaviour. He pleaded guilty, cooperated with the investigators and complied with his bail conditions. His remorse is demonstrated by his conduct, including the steps he has taken to accept responsibility and, where applicable, to repair the harm caused. He is gainfully employed and has dependants who rely upon him.

We do not advance those circumstances as an excuse for the offence. We respectfully submit that they demonstrate the value of allowing him to remain a productive member of society while undergoing punishment and supervision. Most importantly, My Lord, there is nothing before the Court demonstrating that imprisonment is necessary to protect society or achieve the purposes of sentencing in this particular case. A properly supervised community service order would impose real punishment, promote rehabilitation, deter future offending and require the convict to make a positive contribution to society. We therefore respectfully submit that justice does not require the convict to be sent to prison. It requires him to be punished appropriately. In the circumstances, we invite the Court to impose community service.*

Conclusion

A successful plea for community service is therefore not merely an appeal for mercy or leniency. It is a principled argument about proportionality, the purposes of punishment and the most appropriate sentencing response in the circumstances of the particular case. In Ignatius Howe v Republic[2014] DLSC 2948, Dotse JSC (as he then was) expressed concern that harsh custodial sentences had not necessarily achieved their intended deterrent effect. He advocated, in appropriate cases, for offenders to serve their punishment within their communities through structured community service, supported by strengthened probation and social welfare institutions. Such an approach, he observed, could promote accountability and rehabilitation while enabling communities to appreciate the consequences of criminal conduct.

The essential question counsel must answer is this: How can the interests of society be adequately protected and the purposes of punishment achieved without imprisonment in this particular case? Factors such as a first conviction, a guilty plea, genuine remorse, restitution, stable employment, family responsibilities and good conduct may all be relevant to that inquiry. However, none is decisive in isolation. The persuasive force of the plea lies in counsel’s ability to connect these circumstances to the broader proposition that the offender can be punished, supervised, rehabilitated and deterred without being removed from the community.

Ultimately, therefore, counsel seeking a community service sentence must not ask the Court to conclude that the offender deserves no punishment. The submission should be that the offender deserves punishment, but that imprisonment is not the only, or necessarily the most appropriate, means of achieving it. The task is to demonstrate why, on the particular facts of the case, a properly structured and supervised community service order will adequately mark the gravity of the offence, protect the public, deter future offending, promote rehabilitation and serve the interests of justice.

That is the proposition counsel must persuade the sentencing judge to accept: not that the offender should escape punishment, but that community service is the appropriate punishment.

Caution: This article is intended for general educational guidance only and does not constitute legal advice or prescribe a standard form of submission. Community service applications must be tailored to the facts of each case, the applicable law, and the requirements of the court. Any suggested arguments or wording are illustrative and should not be copied verbatim. Members of the public should seek advice from a qualified lawyer in any legal proceedings, and should not rely on this article as a substitute for legal representation.

Note: The authors are Magistrates in Accra, New Edubiase, and Sekondi.

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