Review
Judgment
MWAYERA
J:
The
matter was brought before me for review. The Regional Magistrate
declined to issue a certificate of confirmation of the proceeding on
the basis that he held the view that the sentence imposed was
inordinately lenient. I requested the Regional Magistrate to furnish
me with correct citation of a case cited in his scrutiny minute. The
record somehow was mislaid as it was posted to Chipinge then Mutare
and finally to the Regional Magistrate Harare. The Regional
Magistrate properly attended to the query and resubmitted the record
for review.
I
must of necessity commend the Regional Magistrate for his endeavours
and I must also apologise on behalf of the institution on the mishap
of registry directing the record to Chipinge thus unnecessarily
delaying the review process.
The
accused was convicted of two criminal offences.
Firstly,
he was convicted of contravening of section 6(1) of the Road Traffic
Act [Chapter
13:11]
in that on 4 August 2013 and at around 1800 hours at the 78 km peg
along Mutare – Masvingo Road, Moses Kaseke unlawfully drove a motor
vehicle namely Toyota Corolla registration number ABX 1754 not being
a holder of a driver's licence in respect of such motor vehicle.
Secondly,
he was convicted of culpable homicide as defined in section 49 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23]
in that on 4 August 2013 and at around 1800 hours at the 78 km peg
along Mutare–Masvingo Road, Moses Kaseke unlawfully drove a motor
vehicle, namely, a Toyota Corolla ABX 1754 and caused the death of
Tinashe Chikumbi either by negligently failing to realise that death
might result from his driving conduct or despite realising that death
might result from his driving conduct negligently failed to guard
against that possibility.
The
accused was sentenced to pay a fine of $50-00 or in default of
payment 20 days imprisonment for driving without a driver's licence
and he was sentenced for the offence of culpable homicide to pay a
fine of $300-00 or default of payment three months imprisonment. In
addition six months imprisonment wholly suspended for three years on
the usual conditions of good behaviour.
On
the fateful day the accused who was unlicenced drove the Toyota
Corolla in question having three passengers on board. The accused who
was travelling at an excessive speed lost control of the vehicle
which then veered off the road and overturned several times. The
accident caused injuries on the accused and the passengers. One of
the passengers died from injuries sustained during the accident.
The
accused, a 25 year old first offender pleaded guilty to both counts.
He regretted the offences as evidenced by his plea of guilty and
apologetic stance in mitigation where he accepted he had acted
wrongfully by driving without a driver's licence thereby causing
the loss of life. He was traumatised by the accident and had assisted
the bereaved family in covering funeral expenses and buying the
coffin for the deceased.
The
trial magistrate is commended for carrying a detailed enquiry in
mitigation as this enables one to weigh all circumstances and come up
with a just sentence.
Given
the obvious aggravatory circumstances of this case namely that
accused drove without a driver's licence. He did not only drive
but drove negligently by driving at excessive speed thereby leading
to an accident in which precious human life was lost. It is not in
dispute that no amount of compensation will bring back the lost
precious human life. Further in aggravation is fact that the accident
occurred on a straight road when visibility was clear showing the
high degree of negligence exhibited by the accused by driving
passengers at an excessive speed while not being a holder of a valid
driver's licence.
It
is with this background of the high degree of negligence by a man who
lacked the necessary skill that I agree with the Regional
Magistrate's position of not confirming the proceedings on the
basis that the sentence imposed is too lenient in the circumstances.
It is apparent from the statement of agreed facts when one considers
what occurred, that the blameworthiness of the accused is high. It
cannot be disputed that driving at excessive speed without the
requisite skill safely falls under the ambit of gross negligence
and/or recklessness.
Having
defined the negligence as gross bordering on disregard of safety of
others, it follows the sentence of an option of a fine is
inappropriate.
In
passing sentence, it is important to consider the nature of crime,
the crime committed, the offender and then seek to strike a balance
between the interest of justice and societal interest. Having had
due regard to all mitigatory and aggravating factors and of course
tempering justice with mercy as is expected in a civilised society a
custodial term with a portion suspended on conditions of good
behaviour is considered appropriate.
In
the case of the State
v
Mutizwa
HCH169/84 REGNOLDS J (as he then was) upon reviewing the sentence of
a fine of $200-00 where the accused had been convicted of culpable
homicide correctly observed, given that the negligence in that matter
was ruled as gross negligence the sentence of a fine was disturbingly
inappropriate and he withheld his certificate in that case.
In
the present case where the accused being unlicenced, and lacking the
requisite skills drove at excessive speed leading to loss of control
of the vehicle causing death of the deceased one cannot help but
impute gross negligence.
Accordingly,
the sentence of the option of a fine where loss of life has been
occasioned by gross negligence is inappropriate. I decline to certify
the proceedings as being in accordance with real and substantial
justice and thus withhold my certificate.
