29 December 2017

Gambia: Court Dismisses Mobile Phone Thief Appeal

Justice Oleidi Uduma of the High Court in Banjul recently dismissed the criminal appeal case involving Ebrima Jallow for lack of merit.

The appellant, Ebrima Jallow, was convicted and sentenced to two years imprisonment after he pleaded guilty to the offence of stealing contrary to section 252 of the Criminal Code.

The appellant, who has previous criminal records was alleged to have entered the compound of one Kaddy Jatta and stole two mobile phones. In the face of the notice of appeal, he pleaded guilty to the offence charged and begged the High Court to show him leniency and for a reduction of the sentence.

During the hearing of the appeal, the appellant maintained his plea of guilty and begged the court to show him leniency because he has learnt enough lessons from the prison custody that would make him change.

He told the court that he was living with his young daughter for whom he has been solely responsible.

The appellant further told the court that it was only his mother and daughter that have been visiting him, adding that he was sick and needed medical attention outside prison custody.

The appellant informed the court that the stolen properties have already been released to the owner and he begged for leniency whilst he prayed the court to release him or alternatively reduce the sentence imposed on him.

Counsel for the state respondent, K. Mbye, in her reply to the argument of the appellant, submitted that the appellant was sentenced to 2 years imprisonment based on his own plea of guilty.

She further submitted that the sentences passed by the lower court (Banjul Magistrate's court) was within the ambit of the law and that the punishment for theft as prescribed by the Criminal Code is imprisonment for term of 5 years and not even 2 years.

State Counsel Mbye submitted that the appellant was not appealing against the extent or irregularity of the sentence imposed on him rather for reduction of sentence, adding that the 2 years imprisonment is legal and not excessive.

She referred the court to Section 272 of the Criminal Procedure Code Cap 10.01 which provides that no appeal shall be allowed in a case in which an accused has been convicted on such plea by subordinate court except on the legality of the sentence.

She urged the court to dismiss the appeal for lack of merit premised on the section 272 of the CPC whilst she referred the court to Section 224 of the Criminal Procedure Code, which stated the procedure to be followed where an accused person made a plea of guilty.

She said the charge was read to the appellant in the Lower Court and he understood it and did not object but pleaded guilty so she prayed the court to dismiss the appeal as lacking merit.

The appellant, in his reply, urged the court to consider his plea of leniency.

Delivering the judgment, the Appellate Judge disclosed that she has considered the passionate plea of the appellant for mercy and the submission of State Counsel for the respondent.

She further disclosed that having also considered Section 252 of the Criminal Code under which the appellant was charged and Section 272 of the Criminal Procedure, it does not allow appeal on plea of accused person who pleaded guilty except to the extent of illegality of the sentence.

"The hands of the court are tied in reducing the sentence as these provisions do not give the Appellate Court discretion in reducing the sentence as provided under Section 252 of the criminal Code by which the appellant is charged," the judge stated.

Justice Uduma said since the appellant had pleaded guilty at the trial stage, the appellant is stopped by law from appealing against the conviction and sentence of the Lower Court.

The trial judge cited Section 272 of the Criminal Procedure Code which does not allow appeal on plea of guilty except as to the legality of the sentence.

Justice Uduma pointed out that the appeal was not on the extent of the sentence imposed by the trial court or on its legality or otherwise but on the leniency.

She stressed that the appellant having already pleaded guilty at the Lower Court and for him turning around asking the court for leniency was not a ground of appeal known to law.

The Appellate Judge further stressed that since the appellant had already pleaded guilty to the offence charged, does not give the court the discretion to tamper the with the decision of the Lower Court and it was not in dispute that the appellant had a Criminal Record before this case.

Justice Oleidi Uduma declared that it was for these reasons that the High Court sitting on appellate basis could not allow the appeal and she accordingly dismissed the appeal.

She therefore affirmed the conviction and sentence imposed by the Lower Court and maintained that the appellant should serve the two years imprisonment imposed by the trial court.

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