High Court varies convict sentence

Thursday, January 31, 2019

Justice Ebrima Jaiteh of the High Court in Banjul on Tuesday, 29 January 2019 varied the sentence imposed by Bundung Magistrates Court on one Wagan Faye.

The High Court made this decision in a landmark ruling premised on the appellant’s appeal against the decision of Bundung Magistrates’ Court on the 30 August, 2018.

Delivering ruling, Justice Ebrima Jaiteh said the appellant filed his appeal on two grounds that the sentence of one year imprisonment imposed by the trial magistrates is unreasonable, severe and excessive having regards to the circumstances of the case and the D50, 000 awarded as compensation to the complainant by the trial Magistrate is unreasonable; having regards to the nature of the injury caused to the complainant and the appellant’s financial means.

Justice Jaiteh disclosed that in arguing the appeal, the appellant counsel M.W. Jallow argued that the appellant pleaded guilty and was appealing against the sentence and award of compensation.

Justice Jaiteh disclosed that the appeal gave rise to only two issues and they are (a) whether the court ought to intervene and reduce the sentence and (b) whether the court ought to reduce the award of compensation imposed by the lower court.

Justice Jaiteh further said with regard to the 1st issue as to whether the court can intervene and reduce the sentence imposed on the appellant by the lower court, he referred to Section 214 of the Criminal Code Cap 10:01 Volume III Revised Laws of The Gambia.

He read the said Section 214 and noted that in the instant case, the appellant as the accused person at the lower court was charged with the offence of assault causing grievous harm contrary to Section 214 of the Criminal Code of The Gambia.

He disclosed that the particulars of offence stated that Wagan Faye on or about the 30th day of July 2018 at Latrikunda Sabiji in the Kanifing Municipality in the Republic of The Gambia, unlawfully assaulted Musa Sillah with a broken bottle on his neck and left arm, thereby causing him grievous harm.

Justice Jaiteh further disclosed that the appellant was arraigned and he pleaded guilty to the offence alleged by the prosecution at the lower court.

He explained that the punishment under Section 214 of the Criminal Code attracts a sentence of seven years but the appellant was sentenced to one year imprisonment.

He held that that the sentence of one year for an offence contrary to Section 214 is not excessive and thus falls under the ambits of the law; adding that the appellant was properly sentenced in accordance with the prescribed law.

The appellate judge pointed out that the bone of contention was whether the court can intervene and reduce the sentence in favour of the appellant is the crux of this appeal.

He cited Section 29 of the Criminal Code and noted that his court has the discretion to order for a fine to be paid.

He averred that he observed the demeanour of the appellant in the dock and has found him repentant and has also found it expedient to state that the modern trend in the administration of criminal justice requires the court to give the offender the punishment which is proportionate to the offence, taking into consideration such factors as offence seriousness, protection of the public and mitigating circumstance, considering that the appellant entered into an early guilty plea, and is a first time offender. 

He cited the Gambia Court of Appeal’s decision in Nyabally versus The State (1997-2001) as to how to treat first time offenders with leniency.

Justice Jaiteh pointed out that he sees all these as compelling and extenuating factors, which he held as mitigating circumstances in favour of the convict.

He pointed out that he was minded to further temper justice with mercy and vary the sentence of the appellant, considering that he has already spent 5 months in prison.

On the second issue, regarding the award of D50,000 as compensation to the complainant, he stated that no indication was made as to how the award was granted and no receipt of medical expenses was exhibited as evidence as it put the court in a difficult situation in upholding the award of the lower Court.

Justice Ebrima Jaiteh therefore ordered that the Appellant Wagan Faye be discharged from prison custody and be given 3 years suspended sentence.

Justice Jaiteh reduced the award of D50,000 compensation to D25,000 which should be paid to the complainant; Musa Sillah before being released from prison custody.

The appellant was bound to keep the peace and any similar criminal conduct within 3 years of his conviction, the appellant will serve the full term of his sentence.

Author: Bruce Asemota