James Tillay & ORS V The State (26 of 2006) [2006] SLCA 7 (23 May 2006)

. < ee 53 ee CR. APP 19/2003; 20/2003; 21/2003; 23/2003; 24/2003; 25/2003; 26/2003 IN THE COURT OF APPEAL FOR SIERRA LEONE BETWEEN: JAMES TILLAY } MUSTAPHA CONTEH } DADDY KOROMA } AMARA KAMARA } { APPELLAN I'S ISSA SESAY } MUSTAPHA TURAY } PATRICK TUCKER } AND THE STATE RESPONDE V1

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. WUDGMENT DELVIVERED ON TUESDAY 23"? DAY OF MAY 2006, HON MRS JUSTICE S. BASH-TAQI, J.A -: This is an appeal from the Jud ument of Hamilton, J. (as hg then was) sitting at the High Court in Kenema against sentenc * 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: Larceny contrary to section 21 (1) of the Larceny Act of 1916 All the Appellants pleaded not guilty. At the conclusion of the trial, the Jury una.imously found all the Appellants, save the 2, guilty of conspiracy, and all 7 Appellants “uilty of Shop Breaking and Larceny. The 2" Appellant was acquitted and discharge | on the Conspiracy count. The Learned Trial Judge sentenced the Appellants to 1 years imprisonment in respect of the Conspiracy offence, and 14 years in respect of the shop

Breaking and Larceny charge. He further ordered that the sentences wen to run consecutively, that is say, that the Appellants, with the exception of the 2" Appellant, are each to serve a period of 26 years imprisonment. All the Appellants have now appealed to this Honourable Court against the sentcnces. At the commencement of his argument, Counsel for the Appellants, Mr. I. F. \.ansairay, Sought leave of the Court to abandon Ground 2 of the Grounds of Appeal, wich was granted and Counse| proceeded to argue Ground 1, which reads: “I. That the sentence was manifestly excessive.” Counsel for the Appellants submitted that the Learned Trial Judge did not consider mitigating factors which would have led to a considerable reduction of the senterces passed on the Appellants. ig gould not, however, refer the Court to any pat of the Records of the procgedings Were such mitigating circumstances were recorded. Counsel submitted further that 5 of the Appellants, namely, the 1°, 2", 3 5". anct 6!!! Appellants were first offenders, and that the Learned Trial Judge ought to have considered this as a mitigating factor which should have led to a reduction of the sentences with respect to these 5 Appellants. z He further submitted that, all the Appellants, except for the 1" Appellant, beaged fur mercy, a factor which the Trial Judge should have taken into consideration whei. passing ' the sentences. Coungel submitted that in the circumstances, he was now appealir ¥ 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 4" and 7" Appellants who have previous convictions, Coun -c! rel ied 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 relyirg on the Court’s discretion off the matter. The Court has taken into account the submissions made by Counsel for the A spellants and for the State ang having perused the records of the proceedings in the High Court, this Court is satisfied that the Learned Trial Judge applied the correct sentence: allowed by law. However, sjnce Counsel for the Appellants raised the point that sone of the Appellants were first 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 Yo order that the sentences run concurrently or cons cutively However, in all the gircumstances of the case, we have come to the conclusion that the appeals of the 1", 2", 3", 5!" and 6! Appellants should be allowed, and that the sentences of 12. years and 14 years imprisonment should run concurrently it stead of consecutively With respect to the 4" Appellant, the record states that he had three previous cor vietions, one for which he was sentenced to 14 years. This Court holds that his sentences of 12 years and 14 years should run consecutively.

(exe) a f

The appeals of the 4" Appellant, Amara Kamara and the 7" Appellant, Patrich ‘I"ucker. 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. - yee, Hon. Mrs. S. Bash-Paqi, J. A. ¢ oe Tagree Hon. ere J. Kamgnda, J.A (P esiding) agree Hon. Mr’ Justice G! elaga-King, JA,