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R v Lucky Pherson Mnisi [1996] SZHC 1 (30 July 1996)

Sentence – death arising from driving vehicle



CRI. CASE NO. 60/1996



In the matter between:



R

vs

Lucky Pherson Mnisi Defendant




CORAM S.W. Sapire, ACJ


For Crown Mr. Wachira
For Defence Mr. Kubheka



Judgment
(30/7/96)



The judgement I delivered when passing sentence was through inadvertence not recorded. In order to provide a transcription of the proceedings for the purpose of the Appeal I have prepared this restatement of my observations made at the time, from my notes used to deliver the judgement and from a still reasonably fresh memory of the facts of the case which are recorded in a STATEMENT OF AGREED FACTS and a statement made by the accused which were handed in by consent as evidence at the trial..

The accused was a driver of a public service vehicle. His employment required him on the day in question to drive his employer's bus from Mbabane to Manzini at peak hour, with a full complement of passengers who were mainly commuters returning home from work. The bus was designed to carry seventy persons.

The accused spent most of the afternoon before his scheduled time for departure drinking liquor, so that, eventually, when after the accident his alcohol level was tested he was found to have more than twice the present permissible maximum alcohol content in his blood. (0.2 gram per 100 millimetre of blood according to the agreed facts) The relevant section has since been amended to reduce the permissible level to .08 I observed at the time that the driver of a bus carrying passengers should not drink intoxicating liquor at all before assuming his duties. And this indeed was a condition of his employment.

So absorbed was he in his carousing that he did not arrive at the bus terminal in time to start his journey to Manzini on time. One of his co-employees had to commence the journey in order to adhere to the schedule which the bus company was in terms of its licence required to do. When the accused arrived at the terminal he discovered that his bus had already left for Manzini.

Realizing that if the bus arrived in Manzini with a driver other than himself, his dereliction from duty would be discovered by his employer and he as a consequence he would in all probability lose his job, he determined despite his intoxicated state to pursue the bus and to take over driving it when he caught up with it.

He was able to borrow a car in which he drove, down the notoriously dangerous Malagwane hill and did indeed catch up with the bus at one of the stops on the way. He was able to persuade the driver to let him takeover the reins and he proceeded towards Manzini at a furious rate.

The measure of his recklessness is illustrated by the fact that before the fatal accident he was involved in a collision at an intersection with another vehicle. This however occasioned only minor damage and when this was sorted out he proceeded on his way. This incident is the basis of one of the counts which he faced.

In order to make up time and to arrive in Manzini at the scheduled time he drove at such an inordinately high speed that the passengers despite their concern at the delays in getting to their homes became increasingly alarmed and at least one of them remonstrated with the accused to persuade him to have regard for their safety. The journey was becoming a nightmare for them.

The accused was undeterred by the pleas and proceeded to drive in the same fashion, until the fatal accident occurred. The cause of the disaster was reckless driving on the part of the accused surpassing even what had frightened the passengers up to that point. Travelling at a high speed, far in excess of that which could be considered safe for the bus, the accused found his passage impeded by two vehicles travelling ahead of him. One of these vehicles was in the course of overtaking the other and the two occupied the whole of the left hand side of the highway. With no heed for the danger involved the accused attempted to overtake the two vehicles while the one was passing the other. In order to this he had to take the bus on to the right hand side of the highway where he soon found his path blocked by traffic coming from the opposite direction. In his self created dilemma he applied tried to regain the left hand side of the road but immediately lost control of the bus which veered firstly to the left . In trying to correct this he caused the vehicle to move laterally across the tarmac in the opposite direction where it left the road and overturned

Fourteen passengers died on the spot. Forty two were seriously injured. I was informed that one of these had since died of his injuries and at least one would be confined to a wheel chair for the rest of his life.
Never, as far as I can ascertain, has a case involving a disaster of this magnitude, caused by recklessness so gross come before the courts of Swaziland. Few, if any, of cases reported in the South African Law Report are comparable.

I bore in mind and referred to what was said in S v NXUMALO 1982 (3) SA 856 (A) , the head note of which reads


AIn determining an appropriate sentence in cases resulting in the death of another through negligent driving, the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. At the same time the actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed. It is here that the deterrent purpose in sentencing comes to the fore. Nevertheless, this factor, though relevant and important, should not be over-emphasised or be allowed to obscure the true nature and extent of the accused's culpability. As always in cases of sentencing, where different and sometimes warring factors come into play, it is necessary to strike a balance which will do justice to both the accused himself and the interests of society@.


And in which Corbett JA (then) said in the course of his judgment

Now, there is no doubt that the Court, when assessing the punishment to be meted out to a person convicted of an offence arising from the negligent driving of a motor vehicle on a public highway cannot, and should not, ignore the consequences of such negligent driving, especially where one of the consequences is the death of another person and the conviction is of culpable homicide. As it was put by SCHREINER JA in R v Barnardo 1960 (3) \\\\ SA 552 (A) at 557D -

'Culpable homicide may often seem to operate hardly upon a person who has caused another's death since no greater moral blameworthiness arises from the fact that the negligent act caused death. Nevertheless the sanctity of human life requires to be emphasised whenever a person is unlawfully killed, and drivers of motor vehicles must again and again be reminded that they are in control of an instrument that takes a dreadful toll of life on our highways.'

(See also R v Bredell 1960 (3) SA 558 (A) at 562H - 563A.) In S v Ngcobo 1962 (2) SA 333 (N), however, MILLER J (as he then was), commenting on these two decisions, stated (at 336H - 337A):

'I do not understand the learned Judges of Appeal to have meant or intended, however, that the magnitude of the tragedy resulting from negligence should ever be allowed to obscure the true nature of the accused's crime or culpability. Whatever the result of the negligent act or omission, the fact remains that what the accused person in such a case is guilty of is negligence - the failure to take reasonable and proper care in given circumstances. His negligence may be slight and yet may have the most calamitous consequences, or it may be gross and yet be almost providentially harmless in the result. I venture to suggest that the basic measure for determining fit punishment for a negligent motorist must be the degree of his culpability or blameworthiness. In terms of the judgment to which I have referred, the fact that a death or deaths resulted from such negligence is a factor which may and should be taken into account by the court for purposes of sentence, not so much for its purely punitive effect on the culprit, who may not deserve severe punishment, but for its deterrent effect in emphasising 'the sanctity of human life' and in warning motorists that negligence on the highways may well result in the death of innocent persons and in severe penalties being imposed upon those responsible therefor.'

In similar vein are the following remarks of WESSELS JA in S v Hougaard 1972 (3) 748 (A) at 758F:

'Appellant se growwe nalatigheid het afgryslike gevolge gehad. Wat dít betref, meen ek dat onthou moet word dat die oorledene se uitermatige spoed aansienlik daartoe bygedra het. Selfs 'n ligte graad van nalatigheid kan afgryslike gevolge hê waar uitermatige spoed 'n bydraende faktor is. Growwe nalatigheid kan soms heel onbenullige gevolge hê. Die gevolge van nalatigheid behoort dus nie by straftoemeting oorbeklemtoon te word nie.'

It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norms of reasonable conduct in the circumstances and the foreseeability of the consequences of the accused's negligence. At the same time the actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed.


It is here that the deterrent purpose in sentencing comes to the fore. Nevertheless, this factor, though relevant and important, should not be over-emphasised or be allowed to obscure the true nature and extent of the accused's culpability. As always in cases of sentencing, where different and sometimes warring factors come into play, it is necessary to strike a balance which will do justice to both the accused himself and the interests of society.

Appellant's counsel submitted that the magistrate's judgment on sentence contained certain errors and misdirections which justified interference by this Court. He also submitted that the sentence imposed was so severe and inappropriate as to induce a sense of shock. Counsel for the respondent objected to what he described as an unauthorised extension of the grounds of appeal. Although the points raised by appellant's counsel were all mentioned in the portion of appellant's application for leave to appeal relating to sentence, it was argued on behalf of the State that, in granting leave to appeal, the Court a quo had authorised only one point to be raised on appeal, viz that insufficient weight had been accorded the factor that appellant was merely an employee who, in spite of his protest, had been ordered by his employer to drive the bus in question. It is true that in the judgment granting leave to appeal it is stated that leave is being granted because it is felt that this factor might result in the Court of appeal reducing the sentence, but the judgment concludes by granting leave generally to appeal against the sentence imposed by the magistrate. I do not interpret the judgment and the order of the Court to restrict the leave to a single point or factor relevant to the question of sentence. This would be a very unusual procedure and, in any event, it seems to me that s 326 of the Criminal Procedure Act 51 of 1977 contemplates the granting of leave to appeal, simpliciter, against conviction or against sentence or any order following thereon. I, therefore, hold that appellant is not limited in the grounds which he may advance in support of his appeal against sentence.

As to the sentence itself, this is, as I have indicated, one of imprisonment for four years. This is a very heavy sentence for this type of offence. I have not come across any reported case in which a sentence of this severity was imposed for culpable homicide resulting from the negligent driving of a motor vehicle. The sentence which comes closest to it is that which was imposed in the case of S v Chretien 1979 (4) SA 871 (D). This was imprisonment for three - and - a - half years. The facts of Chretien's case are not comparable with those of the present case. The accused in Chretien's case drove his motor car into a group of persons gathered in the street and of whose presence he was aware. One person was killed and five were injured. It was so bad a case that Chretien, the accused, was actually charged on one count of murder and five counts of attempted murder, although in the result he was convicted only of culpable homicide. In S v Ngcobo (supra ), where the accused had also ploughed into a crowd with his motor car and had killed four people and injured 24 people, a sentence of three years' imprisonment was reduced on appeal by the suspension of one year of the sentence on appropriate conditions. Generally speaking, sentences for culpable homicide involving the negligent driving of a motor vehicle have in the past been considerably more lenient than in the last mentioned two cases. Naturally every case must be adjudged on its own particular facts and circumstances. An important factor in this case is the fact that the appellant has no previous convictions of any kind. At the time of the trial before the magistrate he was 28 years of age and, as I have mentioned, had a wife and two young children.


The sentence imposed is indeed a very heavy sentence. The facts however disclose conduct on the part of the accused far worse even than that which was punished in Chretien=s case. Not only were the results of the accused=s behaviour, horrific carnage, death, and injury; it is not however as if this was the result of some minor act of inadvertence or slight negligence, where it would be proper to have a lesser regard to the extent of the disaster. The accused=s behaviour as the driver of a public vehicle was anti social in the extreme. He displayed a callous disregard for the lives of his passengers who had pleaded with him to be allowed to alight from the vehicle (See para 6 of the agreed facts) when they appreciated that he was heading for disaster. His overriding selfish motive, to hide from his employer his dereliction from duty, blinded him from all consideration for those whose safety should have been his fist concern. It is chiefly this conduct which demanded exemplary punishment.


The presence of alcohol in his system clearly affected his judgment and ability to drive. This was an aggravating, not a mitigating factor. It was taken into account in treating the three convictions as one for the purposes of sentence.

The accused's personal circumstances and the fact that he had no previous convictions were minor considerations in the assessment of the proper sentence to impose. The sentence had to reflect the public outrage for if the court were seen to mete out an inadequate punishment confidence in the courts would be destroyed His clean record however earned the accused the suspension of a greater portion of his sentence than might otherwise have been the case..

His licence was dealt with as required by law. He is unlikely to drive a public service vehicle ever again and he has effectively lost not only the employment he had at the time of the disaster but that source of employment will be closed to him even after his release from prison. This was taken into consideration, but he has demonstrated that for the foreseeable future he cannot be trusted to drive on the roads of this country.

S.W. SAPIRE,
ACTING CHIEF JUSTICE




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