James Tillay & 6 Others v S (CR APP 19 of 2003) [2006] SLCA 18 (23 May 2006)

aad -* ' pp . CR. APP 19/2003; 20/2003; 21/2003; 23/2003; 24/2003; 25/2003: 26/2003 IN THE COUR OF APPEAL SIER: EONE BETWEEN: JAMES TILLAY } A stati CONTEH } DADDY KOROMA } AMARA KAMARA } ISSA SESAY APPELLAN IS MUSTAPHA TURAY } PATRICK TUCKER } AND THE STATE RESPONDE \T

Coram

HQN. MR. JUSTICE J. KAMANDA, J. A (Presiding) HON MR JUSTICE G. GELAGA KING, J. A HON MRS JUSTICE S. BASH-TAQI, J. A.

1. F, Mansaray Esq, the Appellants S. A. BAH Esq, for the State/Respondent JUDGMENT DELVIVERED ON TUESDAY 23°? DAY OF MAY 2006. HON MRS JUSTICE S. BASH-TAQI, J.A -: This is an appeal from the Jud :ment of’ Hamilton, J. (as hg then was) sitting at the High Court in Kenema against senten » The Appellants, on the 23" day of October 2003, were convicted of conspiring together and with others unknown, to break into a shop belonging to a Mr. Ibrahim Khalil Basma, a businessman in Kenema, and of stealing therefrom, goods to the total value of Le18,000,000.00, the property of the said Ibrahim Khalil Basma. The Appellants had been charged, on indictment, with the following offences, na nely: . Count One: Conspiracy contrary to Law, Count Two: Tae contrary to section 21 (1) of the Larceny Act of 1916. ilty. At the conclusion of the trial, the Jury una.imously fon na iueper aed ne te uilty of conspiracy, and all 7 Appellants guilty of ee ere ee Th ie ‘Appellant was acquitted and discharge | on the Shop Breaking and Larceny. The ¢ Conspiracy count. The Learned Trial Judge sentenced the Appellants to 12 years i i : A 1 imprisonment in respect of the Conspiracy offence, and 14 years in respect of the Shop

ae - \ Breaking and Larceny char, rc. He | consecutively, that is say, that te Arpaia wa wa — the iter ictal Miegecned ‘i by e €x | each to serve a period of 26 Years imprisonment, ‘ception o} Appe lant, are All the Appellants have now a eal i . the commencement of his a ing patie arable Court against the sent: nces. At sought leave of the Court to abandon unsel for the Appellants, Mr. I. F. \ ansaray, ranted and Counse| lon Ground 2 of the Grounds of Appeal, w iich was a + Proceeded to argue Ground 1. which reads: “1, That the sentence was manifestly excessive.” fe , Counsel for the Appellants submitted that the Leamed Trial Judge did not consider mitigating factors Which would have led i i passed on the Appellanis ed to a considerable reduction of the sentences food cfike ‘Pel es He could not, however, refer the Court to any pat of the Proceedings Were such mitigating circumstances were recorded. Counsel submitted further that 5 of the A; Ay ha Ppellants, namely, the 1", 2", 3° 5" and 6" Appellants were first offenders, and that the Leamed “Trial Judge ought to have considered this as A mitigating factor which should have led to a Teductio: of the sentences with respect to these 5 Appellants. He further submitted that, all the Appellants, except for the 1° Aj fc " » al a ppellant, be zged foi mercy, a factor which the Trial Judge should have taken into consideration wher ‘passing the sentences. Coungel submitted that in the circumstances, he was now appealii:y to this Honourable Court tq temper justice with mercy and reduce the sentences so that they run concurrently rather than consecutively. | With respect to the ¢” and 7” Appellants who have previous convictions, Coun el relied on the discretion of the Court to do what seemed best in the circumstances, Counsel for the State, Mr. S. A Bah in his reply, submitted that he was relyiry on the Court’s discretion orf the matter. The Court has taken into account the submissions made by Counsel for the A »pellants an ema and for the State and having perused the records of the proceedings in the His h Court, this Court is satisfied that the Learned Trial Judge applied the correct sentences allowed { by law. However, since Counsel for the Appellants raised the point that sone of the Appellants were firs} offenders, this is a factor which the Learned Trial Judge ought to have considered in passing sentence. We must point out however, that it is within the Judge’s discretion jo order that the sentences run concurrently or Cons: -utively. However, in all the gircumstances of the case, we have come to the conclusio: that the appeals of the 1°, 9 3 5", and 6" Appellants should be allowed, and that the Sentences of 12 years and 14 years imprisonment should run concurrently ii stead of Consecutively, i had three previous co: victions, With respect to the 4” Appellant, the record states that he A . one for which he was sentenced to 14 years. This Court holds that his senten es of 12 Years and 14 years should run consecutively. i=

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The appeals of the 4" Appellant, Amara Kamara and the 7 Appellant, Patric Tucker, are accordingly dismissed, We order that the sentences for the 1, 2°, 3 5 and 6 Appellants be set aside and the sentences of 12 years and 14 years run Concurrently instead of consecutively. \ yerwhe: Hon. Mrs. S. Bash-agi, J. A. ‘ Lagree uP, JA (P esiding) lagree Hon. MPJistice G| see A.