The
appellant, a 39 year old first offender, pleaded guilty to, and was
convicted of, contravening section 52(2) of the Road Traffic Act
[Chapter
13:11].
The
State allegations were that, on 7 May 2014, and at the corner of
Prince Edward Road and Josiah Chinamano Avenue, Harare, the appellant
drove a Toyota Hiace motor vehicle with registration number ACL 9067
negligently, and, in the process, was involved in a serious accident.
The State levelled four particulars of negligence against the
appellant. These were that he:
(a)
Turned right in front of an oncoming vehicle:
(b)
Failed to keep a proper look out;
(c)
Failed to stop or act responsibly when a collision seemed imminent;
and
(d)
Travelled at an excessive speed under the circumstances of the case.
The
trial court inquired into the issue of the existence or otherwise of
special circumstances. It found none. It, accordingly, sentenced the
appellant to 6 months imprisonment and suspended 2 of the 6 months
for 5 years on condition of future good behaviour. It, in addition,
prohibited the appellant from driving commuter omnibuses and heavy
motor vehicles for a period of 2 years and light motor vehicles for 6
months. It cancelled his driver's licence.
The
appellant's appeal was against sentence. He stated, in his grounds
of appeal, that:
1.
The trial court erred in not considering community service as a
competent sentence;
2.
The court a
quo
erred in holding imprisonment as the only deterrent punishment and
failing to consider other forms of punishment considering that the
appellant was a first offender who pleaded guilty to the offence;
3.
The sentence imposed was excessive and induced a sense of shock;
4.
The trial magistrate erred by ignoring the general principle of
keeping first offenders out of prison especially if there are no
compelling reasons for the imposition of a custodial sentence;
5.
The court a
quo
erred
by failing to accord a plea of guilty sufficient weight which it must
be accorded and failing to give weight to other factors which
favoured the appellant; and
6.
The trial court erred by failing to recognise that an unrepresented
offender would not know or appreciate special circumstances of the
case.
The
respondent opposed the appeal. Its position was that the court a
quo
exercised its discretion
in a judicious manner when it assessed the sentence which it imposed
upon the appellant.
The
appellant admitted one of the four particulars of negligence which
the State levelled against him. He candidly informed the trial court
that he turned right in front of an oncoming motor vehicle. He
stated, as a reason for his conduct, that he was running away from
the police when the accident occurred. He said:
“There
were police officers who were hiding in front and they
suddenly appeared
and the
motor vehicle ahead of mine was too close to my vehicle.”…,.
The
court is satisfied that the appellant made a conscious decision to
execute a dangerous turn and run away from law enforcement agents. He
should have known that his conduct would likely result in an accident
from which a number of persons would either be injured or even
killed. Notwithstanding his realisation in that regard, he made up
his mind to conduct himself as he did reckless as to the outcome of
the same. He had eighteen passengers in his vehicle when he engaged
in this brazen act. Three passengers suffered injuries as a result of
the accident which he recklessly caused. His moral blameworthiness is
very high in the circumstance of this case.
The
record is silent on whether or not the appellant tendered an apology
to the injured persons or met their medical bills. The probabilities
of the matter are that he did neither of those. That factor militates
against his case.
Most
of the case authorities which counsel for the appellant cited centred
more on generally known and settled sentencing principles than they
did on the case at hand. The case of S
v Kadonzvo
1990 (1) ZLR 186 (SC), which he cited, was, in many respects,
distinguishable from the circumstances of this case. The respondent
brought out the distinction between the two cases in a clear and
lucid manner. The court is satisfied that S
v Kadonzvo
1990 (1) ZLR 186 (SC) was one of mis-judgement. He misjudged that he
could pass through the narrow bridge when there was another motor
vehicle coming from the opposite direction. That was a clear case of
negligent driving as opposed to the present case where the negligence
of the appellant was a conscious decision on his part to turn right
in front of an oncoming motor vehicle reckless as to the consequences
which flowed from his unlawful action.
The
respondent's strong submissions were made in a logical sequence and
they were supported by relevant case authorities. It was able to
convince the court that the appellant's criticism of the
magistrate's assessment of sentence was not warranted. It is the
court's view that the sentence which the court a
quo
imposed upon the appellant was not only appropriate but was also in
accordance with real and substantial justice.
The
appellant owed a duty of care not only to his passengers but also to
the driver and passengers, if any, of the other motor vehicle. He
owed the same duty of care to pedestrians and other road users who
were about, or at, the scene of the accident. He failed to observe
the said duty in a most callous way. The court a
quo
did not, in the court's view, misdirect itself in any way when it
sentenced him to a custodial sentence.
It
is pertinent to stress that drivers of public service vehicles should
not be allowed to treat those whom they carry in their vehicles as
goods or chattel which can be disposed of at will. They are, at all
material times, enjoined to do everything which is possible to
safeguard the lives of their passengers, their own lives, as well as
the lives of other road users - pedestrians included. Where they act
brazenly, as the appellant in
casu
did, they should not expect the sympathy of the courts.
The
only misdirection which the court noted in the instant case related
to the cancellation of the appellant's driving licence.
The
appellant was convicted of negligent driving and not reckless
driving. The facts of the matter show that he was reckless when he
drove as he did. That fact notwithstanding, the appellant could not
be convicted of the crime of reckless driving which is more serious
than the one the charge of which the State preferred against him.
Reckless driving is not a competent verdict for the offence of
negligent driving. The reverse is the case.
It
is only when a driver is convicted of reckless driving that the court
is called upon to cancel his or her licence. Cancellation of a
driver's licence is not provided for under the crime of negligent
driving. The appellant's licence was, accordingly, erroneously
cancelled and should, therefore, be restored to its status quo
ante.
The
court has considered all the circumstances of this case. It is
convinced that the sentence which was imposed upon the appellant was
proper and should not be interfered with. The appeal, therefore,
fails except for that part of the sentence which pertains to the
cancellation of his licence.
It
is, in the result, ordered that:
1.
The appeal be and is hereby dismissed.
2.
The cancellation of the appellant's driver's licence be and is
hereby set aside.
