MATHONSI J: This is an application for bail pending appeal
against sentence. The Applicant was
convicted by the magistrates court sitting at Western Commonage, Bulawayo of
drunk driving in contravention of section 55(2) of the Road Traffic Act, [Chapter
13:11] (the Act) and sentenced to 24 months imprisonment. He was further prohibited from driving motor
vehicles other than a commuter omnibus or a heavy vehicle for 6 months and from
driving a commuter omnibus or heavy vehicle for life.
Before
imposing that sentence the trial magistrate, acting in terms of section
85(2)(a) as read with section 88A of the Act, inquired into the existence of
special reasons as would entitle the applicant to a sentence other than the
mandatory one prescribed in the Act.
After
failing to find special reasons, the trial magistrate sentenced the Applicant
to the mandatory minimum sentence of 2 years.
In doing so she pointed out that she had taken into account the
compelling mitigatory factors of the Applicant but finding her hands tied, she
preferred to restrict the sentence to the bearest minimum.
Aggrieved
by the sentence the Applicant noted an appeal to this court against sentence
only on essentially two grounds namely that the sentence imposed is so
manifestly excessive as to induce a sense of shock and that the court a quo
erred in not finding special reasons in order not to impose the mandatory
sentence.
It
was argued on behalf of the Applicant that the appeal has high prospects of
success firstly because the magistrate did not make a proper inquiry into the
existence of special reasons thereby ending up with a wrong conclusion and
secondly that having decided on an effective imprisonment term of 24 months,
the trial magistrate should have considered sentencing the Applicant to
community service.
The
facts are that on the 19th August 2010 the Applicant was driving a
commuter omnibus registration no. ABN 5586 along Khami Road when he stopped in
the middle of the road near the railway line flyover and started calling for
passengers to embark on his commuter omnibus.
He was then arrested and taken to Bulawayo Central Traffic Section where
a breath test was conducted on him. He
was found to have an alcohol/blood level of 179 mg alcohol per 100ml of
blood. This led to the presumption, in
terms of section 55(3) of the Act, that he was incapable of keeping the vehicle
under proper control.
In
response to the inquiry into the existence of special reasons why the mandatory
sentence could not be imposed the Applicant submitted that he had been stressed
after his wife had taken their child to hospital after the child had eaten a
flower. He went on to say that he was trying
to go to his employer to ask for time off in order to attend to the sick child.
I
am not persuaded that the Applicant has an arguable case in respect of the
existence or otherwise of special reasons.
In terms of section 55(1) of the Act, special reasons are:
“special
circumstances surrounding the commission
of the offence concerned but does not include special circumstances peculiar to
the offender.”
The
Applicant will have serious difficulties in convincing the appeal court that
his voluntary decision to drink alcohol, drive a commuter omnibus and then call
for passengers in the middle of the road had anything to do with his child
having swallowed a flower.
However,
it is the second argument relating to the failure by the court to consider
community service after it had settled for an effective imprisonment sentence
of 24 months which presents the Applicant with prospects on appeal. The trial magistrate weighed the mitigating
factors which persuaded her to settle for 24 months. In my view, it does not matter that the
statute provides for a mandatory sentence.
Once the effective sentence falls within the community service grid, the
trial court is enjoined to consider community service as an option to that
mandatory sentence.
The
sentencing policy of our law is that courts are enjoined to consider community
service where the effective prison term they arrive at is 24 months or
less. See S v Mabhena 1996(1) ZLR 134(H); S
v Majaya HB 15/03; S v Shariwa
2003(1) ZLR 314(H) at 322F.
In
an application for bail pending trial the main determining factors are the
Applicant's prospects of success on appeal and the interests of justice, that
is to say, whether the release of the Applicant on bail will not prejudice the
administration of justice. Masunda and Other v The State HB 48/10
at page 3. Having come to the conclusion
that the Applicant has an arguable case on appeal, I have no reason to believe
that the administration of justice will be prejudiced by the release of the
Applicant on bail. He is therefore a
good candidate for bail. In the result,
I make the following order, that:
(1) The Applicant be and is hereby admitted
to bail pending appeal.
(2) The Applicant shall
deposit a sum of US$ 100-00 with the Assistant Registrar of the High Court in
Bulawayo.
(3) The Applicant should
reside at No. B5573 Old Pumula, Bulawayo until the appeal is finalised.
Messrs Moyo and Nyoni, applicant's legal
practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
