Review
Judgment
CHEDA
J: This is a review judgment.
Accused is 36 years of age, was
charged with culpable homicide. The facts
of this case which are common cause are that on the 31st of August
2008, accused negligently drove a Police vehicle along Fife Street, opposite Highlanders Club, Bulawayo and as a result
of this negligence he killed a pedestrian.
The particulars of negligence are that
he:-
(1) failed
to stop or to act reasonably when an accident seemed imminent.
(2) failed
to keep a proper look-out in the circumstances.
(3)
he was travelling at a speed which was excessive in the circumstances.
He
pleaded guilty, was duly convicted and sentenced to a fine of $200 or in
default of payment 30 days imprisonment.
The sentence struck me as shockingly lenient for such an offence and I
asked for the learned trial magistrate's reason for such a sentence. Her response was that she was of the view
that a fine of $200 was appropriate in the circumstances as the amount was a
lot of money at the time and that she wanted to give the accused a second
chance.
With
great respect to the learned trial magistrate as of the 13th October
2008, the amount of $200 was just a pittance as our money was already trading
in trillions. Therefore, this is not a
good reason at all.
Her other reason is that she wanted to
give the accused a second chance. While
the need to accord an accused person a second chance is essential it
should not be taken too far. The court has a discretion in assessing a
suitable sentence. However, such
discretion should be judicially exercised.
Again, with great respect, to the learned trial magistrate, her approach
does not find any judicial justification in the circumstances. The courts recognize the need for judicial
officers to always strive to impose sentences which find favour in society, as
it is society which is also offended by such offences. The need to impose a sentence designed to
give an offender a second chance is indeed sound as this is the hallmark of our
jurisprudence. However, such approach
must not be overemphasized to the extent of overshadowing the expected
reasonableness on the part of the court.
The court can still give an accused a chance without compromising its
judicial discretion.
In
casu it was, therefore, improper
for the learned trial magistrate to have used her discretion in the said manner. While there is a need to exercise a
discretion such discretion should come about as a result of proper application
of the court's mind to the facts and the law.
Therefore, the said reason can not stand.
In addition, and most importantly the
learned magistrate overlooked the need to carry out a diligent enquiry about
accused's negligence in terms of section 64(3) of the Road Traffic Act. Had she made a finding, her sentence would have
been based on that finding. Any other
sentence which is not based on that procedure is clearly irregular and is,
therefore, a misdirection.
The
sentence is not based on a legal finding and therefore can not stand.
Accordingly
the proceedings are set aside and the matter is referred back for trial de novo before a different magistrate.
Cheda J……………………………………………..
Ndou J agrees…………………………………………..
