Justice Jobarteh upholds the three-month term and D25,000 compensation order against a Guinean national, but quashes the trial magistrate’s unlawful direction that sentences run concurrently.
A Guinean national convicted of stealing electric cables worth two thousand dalasi in the West Coast Region has been discharged from custody after the High Court of The Gambia upheld his sentence on appeal finding that the Brusubi Magistrates’ Court had sentenced him correctly in substance, but had made a technical error in the structure of his punishment.
Muhammed Janneh was arraigned before the Brusubi Magistrates’ Court on 6 June 2024, charged with a single count of theft contrary to section 252 of the Criminal Code after he allegedly stole electric cables belonging to one Kebba Mbaye at Salagi on 25 May 2024.
He entered a plea of guilty and was convicted on his own admission. The trial Magistrate imposed a custodial sentence of three months’ imprisonment, ordered him to pay compensation of D25,000 to the complainant with a default sentence of three months in the event of non-payment directed that both terms run concurrently, and further ordered that Janneh be deported to Guinea upon completing his custodial term.
Dissatisfied with the sentence, Janneh filed an appeal before the High Court. He did not challenge his conviction. Appearing unrepresented before Hon. Justice S.K. Jobarteh, he submitted orally that he was a first-time offender and the sole provider for his family, expressed remorse, and appealed for a reduction in sentence.
Counsel for the State, A. Badjie, urged the court to uphold the sentence in its entirety, contending that it was lawful, proportionate, and justified in the circumstances.
“The Magistrate noted the Appellant had been in the country barely three months before he started stealing a signal, he said, must be sent to deter others.”
In her judgment delivered on 29 April 2026, Justice Jobarteh held that the sole issue for determination was whether the sentence imposed by the trial court was justified. She surveyed the applicable sentencing principles, citing the English authorities R v Lowe (1977) which recognises a guilty plea and cooperation with authorities as significant mitigating factors and Nyabally v The State (1997–2001), which established that the absence of previous convictions weighs strongly in mitigation.
Justice Jobarteh further drew on the Gambian Supreme Court’s decision in Nfamara Saidykhan v The State (2014–2015) GSCLR 289, affirming that appellate courts will not interfere with a trial court’s sentencing discretion unless that discretion was exercised arbitrarily or on a wrong principle.
Applying the Sentencing Guidelines on Theft (2023), Justice Jobarteh found that the facts placed the offence in the category of greater harm and greater culpability, with an applicable starting point of two years and six months and a permissible range of two to five years.
However, noting Janneh’s lack of previous convictions, his remorse, his cooperation with authorities, and his young age and family responsibilities, she determined that mitigation warranted a substantial downward reduction to one year, and further to three months upon giving full credit for his guilty plea.
The court was satisfied that the Magistrate had exercised his sentencing discretion both judicially and judiciously. The three-month custodial term, although the lower court had not expressly cited the Sentencing Guidelines, was manifestly within the permissible statutory range and provided no basis for appellate interference.
Despite affirming the sentence in substance, Justice Jobarteh identified one material error. The trial court had directed that the substantive custodial term and the default custodial term triggered only if the compensation went unpaid run concurrently. Justice Jobarteh held that it was legally impermissible.
Compensation and imprisonment are distinct components of a sentence, the court reasoned. A default custodial term is conditional in nature it arises only upon non-payment and cannot lawfully run alongside a substantive sentence of imprisonment. The order for concurrent operation was therefore inconsistent with the applicable legal framework and constituted an error in principle, obliging the appellate court to intervene.
Accordingly, the concurrency direction was quashed and replaced with an order that, in the event of non-payment of the D25,000 compensation, the default three-month term shall run consecutively and not concurrently with the substantive custodial sentence. All other aspects of the sentence of the three-month imprisonment, the compensation order, and the deportation order were affirmed without variation.
Justice Jobarteh declined to disturb the deportation order. The judge found that the lower court had properly considered the fact that Janneh had only recently entered The Gambia and had almost immediately engaged in criminal conduct. The order had been made pursuant to the relevant provisions of the Immigration Act and was lawfully and properly grounded.
The trial Magistrate had been explicit in his sentencing remarks: Janneh had arrived in the country barely three months before stealing, and a deterrent signal to others was warranted. Justice Jobarteh did not demur from that reasoning.
The appeal succeeded only to the narrow extent of correcting the concurrency error. The High Court directed that the sentence be deemed to have commenced on 12 June 2025 the date of conviction and sentence by the trial Magistrate. Having served his term in the circumstances, Janneh was ordered to be discharged forthwith. Both parties were reminded of their right to further appeal.
