Criminal
Review
MAFUSIRE J: The State
bungled one of the charges preferred against the accused. The trial magistrate
not only missed that, but it also mishandled the sentencing options. That is
what has prompted this review judgment.
The accused pleaded
guilty to two counts that arose out of a single driving infraction involving a
tractor. The first count was framed as driving a motor vehicle, the tractor,
without a valid driver's licence. The second count was culpable homicide.
What happened was that on
the fateful day the accused, an unemployed man of 39 years of age, had been drinking
alcohol at a farm store from about 20:00 hours to about 02:00 hours the next
day. He had come driving the tractor. It had a faulty battery. So he had parked
it on a slope in readiness for a push start. When he decided it was time to go
home he offered the deceased a lift. A tractor not being a passenger carrying
vehicle, the deceased sat on one of the mudguards.
In order to start the
tractor, the accused, who only had one arm, the left arm, switched on the
ignition. He disengaged the handbrake. The tractor started to roll down the
slope. It soon gathered speed. The accused engaged gear and swiftly released
the clutch. The engine roared to life. But at the same time the tractor jerked
forward. The deceased was thrown off the mudguard. He fell to the ground and
landed in front of the huge left rear wheel. He was run over. He died on the
spot. The post mortem report noted, among other things, a depressed skull and a
fracture of the left arm. It said the deceased had died as a result of head
injury.
The accused had no
driver's licence.
The charge in respect of
count one was framed as contravention of s 6[1], as read with s 6[5], of the
Road Traffic Act, Cap 13:11, in that
on 12 September 2016, at Yottam Farm, Masvingo, [the accused] unlawfully drove
an unregistered motor vehicle, a Tafe Farm Tractor, along an unnamed farm road
with [sic] a valid driver's licence.
I caution in passing that
great care and precision should always be taken and exhibited in the drafting
of criminal charges and the handling of criminal matters. Criminal proceedings
affect some of the fundamental human rights and freedoms enshrined in the
Constitution, namely the right to liberty, and even the right to life. The word
“… with …” in the charge sheet, was
undoubtedly a typing error. Obviously it was meant to read “… without …” Yet that misprint was the
bedrock of the charge. Strictly speaking, as the charge stood, there was no
offence if the accused had driven a motor vehicle “… with …” [i.e. whilst in possession of] a valid driver's licence.
Be that as it may, it
seems the typo did not cause prejudice. Everyone, including the accused, seemed
to have understood the substance of the charge, namely that the accused had
driven the tractor whilst not in possession of a valid driver's licence. But
ironically, that was the bane of the whole case.
The offence created by s
6[1][a] of the Road Traffic Act is directed at persons that drive motor
vehicles “… on a road …” without
being licenced to drive the class of the motor vehicle concerned. If one is
driving a motor vehicle without a licence, but not on a road, one is not
contravening this section.
In terms of the Act, “road” is any highway, street or other
road to which the public, or any section thereof, has access. In casu, the road in question was none
of these. It was a farm road, thus a private road. Section 2 of the Act defines
a “private road” as any road the
maintenance of which neither the State nor a local authority has assumed
responsibility, and which is not commonly used by the public or any section
thereof.
A “private road” only becomes a “road”
for the purposes of sections 51 to 55, 64, 70, 76 and 77 of the Act, as stated
in paragraph [e] of the definition of
“road” in s 2. But none of these is
relevant. Thus, the court a quo was
wrong to assume or accept, without facts, that the farm road was a “road” for the purposes of the offence in
s 6[1].
That was not the only
problem with the charge in count one.
In terms of the Road
Traffic Act, the driver of a tractor does not always have to have a driver's
licence. In terms of s 8 all that an employee of a farmer or miner, or a
self-employed farmer or miner, as defined, needs in order to legally drive a
tractor belonging to, or possessed by them, on any road for farming purposes, up
to a belt of ten kilometres of the farm or the mine boundary, is a tractor
driver's permit issued in accordance with that section.
In
casu,
the State Outline said the accused resided at Plot 19 Yottam Farm. Whilst it
also said the accused was not employed, it did not say he was not the owner of
that plot or that farm. It did not say whose tractor it was. If he was the
owner of that plot or of that farm, and thus was self-employed, and if he was
also the owner of that tractor, he could legitimately have driven it, if he met
the criteria laid out in s 8 of the Act.
The right to drive a
tractor in circumstances prescribed by s 8 of the Act is confined to situations
where the driving is for farming or mining purposes. It is perhaps presumptuous
to argue that the accused who had been carousing from about 20:00 hours to
about 02:00 hours of the next day, could be said to have been on about farming
purposes when he had eventually decided to drive the tractor home. It is more
likely he had been at the drinking place for leisure or pleasure. But had that
been his dominant purpose? Might the drinking not have been merely incidental?
Not unexpectedly, all these aspects were not canvassed.
Given that the court had
to be convinced of the accused's guilt beyond any reasonable doubt, it was
unsafe to assume, as it evidently did, that the accused was not the owner of
the plot or of the farm, or that he was not the owner of the tractor, or that
he did not have a tractor driver's permit that would have entitled him to drive
that tractor on the farm roads.
In the circumstances, the
accused' conviction on count one is hereby quashed, chiefly on account of the
fact that there was no offence disclosed by the charge since the driving, and
therefore the accident, occurred on a private farm road.
On count one, the accused
was sentenced to a fine of $100 or, in default, thirty days imprisonment. But
because his conviction on that count has been quashed, this sentence is also
set aside.
On count two, the accused
was sentenced to two years imprisonment of which one year imprisonment was
suspended for five years on the usual condition of good behaviour. In addition,
the accused was prohibited from driving all classes of motor vehicles for life.
It is on sentencing that
the court a quo seriously misdirected
itself in a number of respects. To begin with, and going back to count one, in
terms of s 6[5] of the Road Traffic Act, a person convicted of driving a motor
vehicle without a licence, in contravention of sub-section [1], is liable to a
fine not exceeding level six [$300], or to imprisonment for a period not
exceeding one year, or to both such fine and such imprisonment. However, if the
motor vehicle the accused was driving was a commuter omnibus or a heavy
vehicle, he shall be liable to imprisonment for a period not
exceeding five years and not less than six months, unless he comes within one
or other of the two exceptions specified. The accused did not come within the
first set of exceptions. They were irrelevant because they relate to a licensed
driver, which he was not.
The second exception that
enables the unlicensed driver of a commuter omnibus, or of a heavy vehicle, to
escape the mandatory jail term of sub-section [5] is if they manage to show
that there were special reasons why the special penalty should not be imposed.
What determines whether
or not the mandatory jail term should be imposed is whether or not the motor
vehicle in question was a commuter omnibus, or a heavy vehicle. What determines
whether a motor vehicle is a heavy vehicle or not is its weight, and, in the
case of a passenger motor vehicle – an aspect not relevant in this case – its
passenger carrying capacity.
Going by the definition
of “motor vehicle” in terms of s 2 of
the Road Traffic Act, a tractor is obviously a motor vehicle. But whether it is
a heavy vehicle or not depends on whether its net mass exceeds 2 300
kilogrammes. The Act says a “heavy
vehicle” means a motor vehicle exceeding 2 300 kilogrammes net mass, but
does not include a passenger motor vehicle having seating accommodation for
less than 8 passengers.
This aspect was also not
considered in the court a quo. It is
not clear what then informed the sentence of $100 fine or thirty days
imprisonment. That was a misdirection. Having convicted him in count one, it
was mandatory for the court to have established whether the accused was liable
for the s 6[5] special penalty or not. Among other things, it was necessary to
establish the weight of the tractor because if it was a heavy vehicle the penalty
would have had to be relatively heavier, and conversely, relatively lighter if
it was not a heavy vehicle.
However, for count one
this particular misdirection is of no moment because the entire conviction has
been quashed. The issue has been raised for the future.
The effective sentence in
count two was one year imprisonment and a life
ban from driving all classes
of motor vehicles. In that kind of sentence, the obvious issues to look at on
review are: 1/ was the substantive sentence of imprisonment correct? 2/ did the
court assess the degree of negligence, and if it did, was its assessment
correct? 3/ was the court correct in imposing a ban on driving, and if it was,
was the period appropriate, and was the extension of that ban to life and to all
classes of motor vehicles correct?
It is now trite that in a
charge and conviction of culpable homicide arising out of a driving offence, it
is essential that the trial court should first make a precise finding on the
degree of negligence before assessing the appropriate sentence: see S v Dzvatu; S v Mtizwa; S v Chaita & Ors; S v Mapeka & Ors; S v Muchairi and S v Wankie.
In
casu,
the particulars of negligence preferred against the accused, to which he
pleaded guilty, were these:
·
causing or permitting a passenger to ride
on a mudguard;
·
failing to keep a proper lookout in the
circumstances;
·
fail[ure] to act reasonably when an
accident seemed imminent
I must comment in passing
that given the circumstances surrounding the commission of the offence, such particulars
were not very informative. What loomed large as particulars of negligence was
the fact that for someone who had been drinking alcohol for about six hours, to
try a hill start at night, using one arm to control both the steering wheel and
the gear / clutch levers, was extremely dangerous.
It appears from the
record that whilst the particulars of negligence left out such crucial aspects,
nevertheless the court did take them into account in considering aggravating
circumstances for the purposes of sentence. The court assessed the accused's
degree of negligence as gross.
I shall not interfere with that assessment even though I myself might have
elevated his conduct to recklessness.
The mitigating features
in favour of the accused were these. He was a first offender. He pleaded
guilty. The court noted that he was contrite during the proceedings. He was
married and the wife was expecting. He virtually had no assets, except for some
nine goats and a paltry $12. However, a significant feature that he raised in
mitigation was that “… they…”
[presumably, he and/or his extended family] had paid three head of cattle as
compensation to the relatives of the deceased and had also paid for the funeral
expenses.
In addition, I would
assume, and take as an aspect of mitigation, that the unfortunate death of the
deceased will weigh heavily on the accused probably for the rest of his life.
Above all, this unfortunate incident happened on a private farm road, not a
public highway, albeit an aspect that does not help him when it comes to
considering possible prohibitions from driving because of, as aforesaid, the
provisions of paragraph [e] of the
definition of “road” in s 2 of the
Act.
The aggravating features
in the case consisted of the reckless risk that the accused took by trying a
hill start at night; with one hand; with a passenger perched precariously on
the tractor's mudguard; and after both he and his passenger had been drinking
alcohol for about six hours. Human life was needlessly lost. The sentence of the
court, whilst taking the personal circumstances of the accused into account,
must also reflect the importance that it attaches to the preservation of human
life.
The approach of the
courts is that persons convicted of culpable homicide arising out of a driving
offence should generally be spared jail unless the degree of negligence was
gross or reckless.
In Dzvatu above, the accused, whilst driving a military truck late at
night, came out of a side road and ignored a “Give Way” sign. His vehicle hit a police vehicle that was
travelling along the main road. Two policemen in the police vehicle died. The
accused was found guilty of culpable homicide and fined $250. On review the
sentence was criticised. McNALLY J, as he then was, said;
“To my mind, anyone who drives
straight through a “Give Way” sign at a T-junction and hits a lighted vehicle
travelling in the main road, killing two people, is prima facie grossly negligent. When it also seems that that person
is to an unspecified degree under the influence of alcohol, then that belief is
confirmed. In view of the current increase in the number of tragedies on our
roads, such conduct warrants a prison sentence. In principle that has always
been the position – see S v Lusenge AD 138/81. …… I referred this
matter to the Attorney-General and he agrees that a prison sentence and a
prohibition from driving would have been appropriate.”
In S v Mtizwa the accused pleaded
guilty to culpable homicide. He had driven onto his wrong side of the road. He
struck and killed a motor cyclist. He could not explain why he had been on the
incorrect side of the road, or why he had not seen the motor cyclist at any
time before the accident. He was fined $200. On review the sentence was
criticised for being disturbingly lenient. It was said an appropriate sentence
would have been one of imprisonment and a prohibition from driving. It was
said, among other things, that where recklessness or gross negligence is shown,
a prison sentence should be appropriate.
It was the same approach
in Chaita and Mapeka & Anor, both referred to above,
In
casu,
I have concurred with the degree of negligence assessed by the trial court even
though, in my view, the conduct bordered on recklessness. But I consider the
substantive sentence of two years imprisonment, with one year conditionally
suspended, to be appropriate. Therefore it is hereby confirmed.
However, it is not clear
from its reasons for sentence which particular section in the Road Traffic Act
informed the court a quo's decision
to prohibit the accused from driving for
life and for all classes of
motor vehicles. From its analysis of the aggravating circumstances, it
appears the court was convinced the accused had been drunk. It is also evident
that the court accepted that the tractor in question was a heavy vehicle.
Undoubtedly, it must have
been by virtue of s 64[3] above that the court considered, and did impose, a
ban on driving, because s 49 of the Code that defines culpable homicide does
not refer to any such things. On this, the court was correct.
Section 64[3] of the Road
Traffic Act says:
“[3] If, on convicting a person of murder,
attempted murder, culpable homicide, assault or any similar offence by or in
connection with the driving of a motor vehicle, the court considers –
[a] that
the convicted person would have been convicted of an offence in terms of this
Act involving the driving or attempted driving of a motor vehicle if he had
been charged with such an offence instead of the offence at common law; and
[b] that,
if the convicted person had been convicted of the offence in terms of this Act
referred to in paragraph [a], the
court would have been required to prohibit him from driving and additionally,
or alternatively, would have been required to cancel his licence;
the court
shall, when sentencing him for the offence at common law –
[i] prohibit him from driving for a period
that is no shorter than the period of prohibition that would have been ordered
had he been convicted of the offence in terms of this Act referred to in
paragraph [a]; and
[ii] cancel his licence, if the court would
have cancelled his licence on convicting him of the offence in terms of this
Act referred to in paragraph [a].”
By
virtue of the above provision, a conviction of culpable homicide, as defined by
s 49 of the Code, that involves the driving of a motor vehicle, should, among
other things, automatically compel the court to pay regard to the prescribed
driving offences such as s 52 [negligent or dangerous driving]; s 53 [reckless
driving]; and if a breathalyser test was conducted, sections 54 and 55 [driving
with prohibited concentration of alcohol in blood] [driving whilst under the
influence of alcohol or drugs or both].
Sub-section
[1] of s 65 says a prohibition from driving shall extend to all
classes of motor vehicles. But it does not say for life. And at any
rate, the sub-section is subject to the whole section. Sub-section [3] gives
the court the discretion to confine the prohibition to the class of motor
vehicle to which the one being driven by the accused at the time of the
commission of the offence belonged.
In casu, the record does not show
whether or not the court considered s 65 at all, or if it did, whether it ever
considered the issue of the discretion conferred by sub-section [3] above, and
if it did, why it might have refrained from exercising it instead of opting for
a life ban, and in respect of all classes of motor vehicles.
Where the vehicle
concerned is a commuter omnibus or a heavy vehicle, and the accused has no
previous convictions on a similar offence in the last ten years, s 54 of the
Act [driving with prohibited concentration of alcohol in blood], and s 55 [driving
while under the influence of alcohol or drugs or both] prescribe a prohibition
from driving a commuter omnibus, or a heavy vehicle, for life.
The court a quo seems to have taken guidance from either
or both of these two sections. That should explain the kind of prohibition that
it imposed. If that is the case then it was a misdirection. To begin with,
without scientific evidence, it was wrong to infer that the level of alcohol
concentration in the accused's blood at the time of the accident exceeded the
legal limit, or that he was under the influence of alcohol, or drugs, or both,
to such an extent that he was incapable of having proper control.
Secondly, and as
indicated already, it was wrong to assume that the tractor in question was a
heavy vehicle when there was no such evidence, or such admission by the accused.
Thirdly, the relevant
prohibitions from driving prescribed by s 54 [in particular, sub-section [4][a][ii][B]],
and s 55 [in particular, sub-section [5][a][ii][B]], for first offenders,
confine themselves to prohibitions in respect of commuter omnibuses or heavy
vehicles, not all classes of motor vehicles. A life ban for all classes of
motor vehicles is prescribed only for third time or subsequent offenders [s 54
[4][b][ii] and s 55[5][b][ii]]. This was not the case.
However, in spite of the
above misdirection, it is still appropriate that some form of prohibition be
imposed on the accused given the seriousness of his misconduct and the
consequences that ensued. He is one who, when he comes out of jail, should not
be allowed back on the road too quickly.
In accordance with the
cardinal rule of criminal law that any doubt or lacuna should be exercised in
favour of the accused, the tractor in question shall be treated as an ordinary
motor vehicle, not a heavy motor vehicle. Furthermore, having assessed the
accused's degree of negligence as gross, not recklessness, it must be s 52 of
the Act [negligent or dangerous driving] that the court a quo ought to have sought guidance from in coming up with the appropriate
prohibition from driving.
In terms of paragraph [a] of sub-section [4] of s 52, a court convicting
a person of negligent or dangerous driving may ban him from driving for a
period that it sees fit if in in the last five years he has not been convicted
of an offence of which dangerous driving, or negligent driving, or reckless
driving of a motor vehicle on a road was an element. The issue of special
circumstances does not come in. It only comes in in terms of paragraphs [b] and [c] that respectively deal with someone with previous convictions
and the driving of a commuter omnibus or a heavy vehicle.
In the circumstances of
this case, the accused should be prohibited from driving class four and class
five motor vehicles for a period of twelve months which shall start to run upon
his release from prison.
In summary therefore:
1 the
conviction and sentence in count one are hereby set aside;
2 the
conviction in count two is hereby confirmed;
3 the
sentence in count two of two years imprisonment of which one year imprisonment
is suspended for five years on condition that within this period the accused
does not commit any offence involving negligent driving for which upon
conviction he will be sentenced to imprisonment without the option of a fine,
is hereby confirmed;
4 the
prohibition from driving of all classes of motor vehicles for life is hereby
set aside, and in its place substituted with a prohibition from driving class
four and class five motor vehicles for a period of twelve months which shall
start to run the date of the accused's release from prison.
The court a quo is hereby directed to recall the
accused and pronounce to him the above altered verdicts and sentence.
6 February 2017
MAWADZE J agrees: ____________________________
