High Court Corrects Sentencing Error, Orders Immediate Release of Cable Thief but Upholds Deportation

Justice S.K. Jobarteh of the High Court of The Gambia has upheld the substance of a three-month prison term and a D2,000 compensation order against a Guinean national convicted of cable theft, while overturning a technical error in the lower court’s sentencing structure. The ruling resulted in the defendant’s immediate discharge from custody.

Muhammed Janneh was arraigned before the Brusubi Magistrates’ Court on 6 June 2024, on a single count of theft contrary to section 252 of the Criminal Code. The charge stemmed from the alleged theft of electric cables valued at D2,000, belonging to one Kebba Mbaye, in Salagi on 25 May 2024. Janneh pleaded guilty and was convicted on his own admission. The trial magistrate sentenced him to three months’ imprisonment, ordered him to pay D2,000 in compensation to the complainant (with a default three-month term if unpaid), directed that both custodial terms run concurrently, and further ordered his deportation to Guinea upon completion of his sentence.

Dissatisfied, Janneh appealed to the High Court, challenging only the sentence, not his conviction. Appearing unrepresented before Justice Jobarteh, he argued that he was a first-time offender, the sole provider for his family, and expressed remorse while seeking a reduced sentence.

State Counsel A. Badjie urged the court to uphold the sentence in full, arguing it was lawful, proportionate, and justified. The magistrate had noted that Janneh had been in the country for barely three months before committing the offence, and that a deterrent signal was necessary.

Delivering judgment on 29 April 2026, Justice Jobarteh identified the sole issue as whether the sentence was justified. Reviewing applicable principles, she cited English authority R v Lowe (1977)—recognising guilty pleas and cooperation as mitigating factors—and Nyabally v. The State (1997–2001), which holds that a clean record weighs strongly in mitigation. She also referenced the Gambian Supreme Court’s decision in Nfamara Saidykhan v. The State (2014–2015), affirming that appellate courts will not disturb a trial court’s sentencing discretion unless exercised arbitrarily or on wrong principles.

Applying the Sentencing Guidelines on Theft (2023), Justice Jobarteh found the offence fell into the category of greater harm and greater culpability, with a starting point of two years and six months and a permissible range of two to five years. However, given Janneh’s lack of prior convictions, remorse, cooperation, young age, and family responsibilities, she held that mitigation warranted a reduction to one year, further reduced to three months after full credit for his guilty plea. The magistrate’s sentence was therefore judicially sound and within the statutory range.

Nevertheless, Justice Jobarteh identified a material legal error: the trial court’s direction that the substantive custodial term and the default term (triggered only if compensation went unpaid) should run concurrently. The court held this legally impermissible, as compensation and imprisonment are distinct sentence components; a default term is conditional upon non-payment and cannot lawfully run concurrently with a substantive sentence. The concurrency direction was quashed and replaced with an order that, should Janneh fail to pay the D2,000 compensation, the default three-month term shall run consecutively.

The deportation order was affirmed without variation. Justice Jobarteh found that the lower court had properly considered Janneh’s recent entry into The Gambia and his swift engagement in criminal conduct, acting pursuant to relevant provisions of the Immigration Act.

The appeal succeeded only to the extent of correcting the concurrency error. Justice Jobarteh directed that the sentence be deemed to have commenced on 12 June 2025, the date of conviction. Having already served the equivalent term, Janneh was ordered discharged forthwith. Both parties were reminded of their right to further appeal.