MAVANGIRA J: This is an appeal that was noted out of
time. An application for condonation of late filing of the appeal was not
opposed by the respondent. Condonation was granted.
The appellant appeals against the sentence that was imposed
on him by the court a quo. He was convicted on his own plea on a
charge of negligent driving in contravention of s 52(20) of the Road Traffic
Act, [Cap 13:11] (the Act). The facts are that the appellant who was
driving a Mazda B1800 in a northerly direction along Rekayi Tangwena Road,
failed to stop at the intersection with Coventry Road. The traffic lights were
red against him. His failure to stop resulted in a collision with another motor
vehicle which was travelling east along Coventry Road.
The appellant was sentenced to 9 months imprisonment of
which 3 months imprisonment was suspended on the usual and appropriate
condition of future good conduct. In addition the appellant was prohibited from
driving class 2 motor vehicles for a period of 6 months.
The respondent has indicated that it does not oppose the
appeal. Section 52(2) of the Act stipulates that a person who drives a vehicle
on a road negligently shall be guilty of an offence and liable, where the
vehicle concerned is not a commuter omnibus or a heavy vehicle, to a fine not
exceeding level 7 or to imprisonment for period not exceeding 6 months or to
both such fine and such imprisonment
While appeal courts are reluctant or slow to interfere with
a trial court's sentencing discretion, they will readily do so in circumstances
where the sentence imposed is disturbingly inappropriate or the sentencing
discretion has been exercised capriciously or upon the wrong principles. S vNcube
& Anor 1983 (2) ZLR 1; S v Gono 2000 (2) ZLR 63.
In casu as the appellant was convicted of a
statutory offence, the trial court ought to have been guided in its assessment
of an appropriate sentence by the penalty provisions of the contravened Act.
The sentence imposed by the trial court does not fall within the range of
sentences stipulated by the relevant provision of the Act. As the appellant was
not driving a heavy vehicle or a commuter omnibus, even if imprisonment might
have been found to be appropriate, he ought not to have been sentenced to a
period of imprisonment that exceeds 6 months. In S vHarington 1988
(2) ZLR 344 at 359F DUMBUTSHENA CJ stated:
“The Legislature prescribed a sentence of twenty-five
years' imprisonment as a maximum penalty for contravening s 3 of the Official
Secrets Act. It is the ceiling of a range of sentences which a court may impose
for a contravention of the section.”
At 359H he also stated:
“Fairness and justice exclude a passionate approach to
sentencing. Courts should also, when assessing sentence, avoid insensitivity to
one side or an exaggerated sense of the wrong done to society.”
He proceeded at 360c:
“Fairness does not exclude the element of mercy and it does
not also exclude a robust approach to sentencing.”
DUMBUTSHENA CJ further stated at 361H that what had
gone wrong in that case was that the leaned Judge President in the court below
had pitched his sights too high and scanned sights far beyond the ambit of s 3.
In casu the learned trial magistrate passed an incompetent sentence.
She erred and the sentence must and therefore will for that reason be set
aside.
In her reasons for sentence the learned trial magistrate said that she attached
“little weight to the (appellant's) plea of guilty which is not a sign of
contrition but rather had no other option but to so plead because the negligence
was so gross and glaring.” In S vSidat 1997 (1) ZLR 487 (S)
McNally JA said at 493B:
“... a plea of guilty must be recognised for what it is – a
valuable contribution towards the effective and efficient administration of
justice. It must be made clear to offenders that a plea of guilty, while not
absolving them, is something which will be rewarded. Otherwise, again, why
plead guilty?”
Further, in S vMpofu (2) 1985 (1)
ZLR 285 Reynolds j stated at 291F – 292A:
“... What a plea of guilty does accomplish, though, is to
contribute to the smooth and efficient administration of the system of criminal
justice. ... But in the first respect mentioned the plea merits recognition and
credit to an extent. It is a fact that a significant portion of offenders,
although knowing full well that they are guilty of a crime charged, still hotly
protest their innocence. It is by no means uncommon for such persons to attack
the bona fides and veracity of the most honest and impartial of
witnesses, to prolong trials extensively and unnecessarily, to concoct specious
and spurious defences, and generally to cause a considerable waste of public
time and money. This is against public interest. I believe that it is more for
this reason than any other, such as the so called automatic right based on a
supposed declaration of contrition, that the courts generally allow an offender
some mitigation of sentence if he pleads guilty. In this way such an offender
is encouraged to adopt the more honest and laudable procedure of making a clean
breast of his culpability, and of facing up to the consequences of his
misconduct.”
In casu the trial magistrate appears to have
unduly minimised the value of or the weight to be attached to the appellant's
plea of guilty. This led to a miscarriage of justice, more so when viewed in
light of her imposing a sentence that is not only outside but also in excess of
the permissible maximum in matters where imprisonment is found to be
appropriate. It is also trite that where a penalty provision provides for either
a fine or imprisonment or both, as in this case, the court ought to be
satisfied that a fine will not meet the justice of the case before it considers
the custodial option as well as the length thereof. In the instant matter the
relevant section stipulates a fine not exceeding level 7. The concession and
proposal by the respondent's counsel that the sentence be set aside and that it
be substituted with a fine of US$200 thus finds favour with this court for it
is important for courts to guard against excessive devotion to the cause of
deterrence as may so obscure other relevant considerations as to lead to a
punishment which is disparate to the offender's deserts: See S v Gorogodo
1988 (2) ZLR 378 (SC) at 382H – 383A. It appears that the trial magistrate
gave excessive devotion to the need for the court to “register its displeasure
by imposing stiffer penalties and in the process further proceeded to not only
impose an unduly harsh sentence but also went on to irregularly “outshoot” the
applicable and pertinent penalty provision.
Regarding the prohibition from driving, whilst the
appellant was involved in an accident whilst driving a class 4 motor vehicle,
the trial court prohibited him from driving class 2 motor vehicles. This was a
misdirection as such a prohibition has no basis at law. The prohibition, if
appropriate, had to relate to the class of vehicle that the appellant was
driving at the time of the accident. It did not. Furthermore, the as the
appellant is a first offender paragraph (a) of subsection (4) of section 52 is
applicable. It provides as follows:
“(4) Subject to Part IX, a court convicting a person of an offence in terms of
subs (1) involving the driving of a motor vehicle—
(a) may, subject to paragraph (c),
if the person has not previously been convicted of such an offence or of
an offence, whether in terms of a law of Zimbabwe or any other law, of which
the dangerous, negligent or reckless driving of a motor vehicle on a road is an
element within a period of five years immediately preceding the date of such
first-mentioned conviction, prohibit the person from driving for such period
as such court thinks fit; (emphasis added).
Whilst the section by the use of the word “may” gives
discretion to the court to decide whether or not to prohibit the convicted
person from driving, it appears to me that the court must exercise the
discretion judiciously and the manner of exercise of that discretion can only
be discernible from the reasons given therefor. In casu there is no
recording of the specific reasons why the trial magistrate decided to exercise
her discretion in the manner in which she did.
A fine is a permissible penalty in terms of the Act as already stated above. In
S vKadonzvo 1990 (1) ZLR 186 (SC) a fine was found to be
appropriate on a conviction for reckless driving in circumstances where the
appellant who was driving an omnibus carrying passengers failed to yield to a
vehicle approaching from the opposite direction on a narrow bridge. The omnibus
collided with the oncoming vehicle and ran off the bridge into the river below.
Eleven persons were injured, two of them seriously. In casu a fine
would have met the justice of the case.
As rightly submitted by the State, the offence as well as the conviction of the
appellant occurred in 2008 and whatever the message was intended to get to the
appellant has been received by now. I do not however, agree with the
appellant's counsel's submission that the sentence of the court a quo be
substituted with a level 2 fine. A sentence of US$10 in the circumstances of
this case would in my view make a mockery of justice. The State's submission
that an appropriate sentence would be a level 5 fine appears to be nearer a
more realistic assessment.
In the result and for the above reasons the sentence of the court a quo is
hereby set aside and is substituted with the following:
“The accused is sentenced to US$200 or 3 months
imprisonment.”
HUNGWE
J agrees.
