S v Matarise (HB 2 of 2006) [2006] ZWBHC 2 (18 January 2006)

Judgment No. HB 2/06 Case No. HCA 72/05 FANUEL MIKE TAUYA MATARISE Versus THE STATE IN THE HIGH COURT OF ZIMBABWE CHEDA & NDOU JJ BULAWAYO 12 SEPTEMBER 2005 & 19 JANUARY 2006 Makonese for appellant K Amon for the state Criminal Appeal CHEDA J: This is an appeal against sentence only. The historical background of this case is that appellant who at the relevant time was 25 years was involved in a road traffic accident. On 26 February 2005 at around 1730 hours he was driving a Peugeot 505 along Steelworks road in Kwekwe behind another vehicle. The vehicle in question indicated its intention to turn to the right. Appellant failed to slow down and/or stop, lost control and swerved to the right thereby knocking down four pedestrians. The attending police details suspected that he was drunk and took him for a breathalyser test, which established that he had a concentration of 198 milligrams of alcohol per 100 millilitres of blood. He was charged with contravening section 55(2) of the Road Traffic Act Cap 13:11 to which he pleaded guilty and was sentenced to 9 months imprisonment. His licence was cancelled and was also prohibited from driving for 12 months. HB 2/06 Mr Makonese for appellant has argued that this court should interfere with the sentence imposed by the court a quo for the reason that it misdirected itself. The perceived misdirection is on the basis that: a) the court failed to properly consider mitigating factors which out weigh the mitigatory ones in that appellant is a young man who is not married. He is not employed. That he had pleaded guilty to the charge, therefore did not want to waste the court’s time and is therefore contrite. b) As the appellant was not legally represented the issue of special circumstances should have been dealt with in detail. Mr Amon for respondent has made a concession in relation to the length of imprisonment imposed. Such concession I find it to be proper. In view of this finding by this court it therefore leaves this court with a discretion with regards to sentence. Mr Amon has argued that a custodial sentence is called for as it will serve as a deterrent. Deterrence can either be for the general public, that is for potential offenders or the individual himself. Appellant’s level of concentration of alcohol was indeed high in the circumstances. He failed to slow down or stop when the motor vehicle in front of him had indicated its intention to turn to the right. He failed to control his car resulting in it hitting four pedestrians walking on the other lane. It is only reasonable to conclude that failure to avoid this accident was as a result of his drunkenness. HB 2/06 Drunkenness impairs one’s judgment as it diminishes one’s concentration span. Those who cannot resist the pleasure of drinking alcohol when they are expected to drive motor vehicles should do so with a clear understanding that, the said pleasure will always carry a tag of imprisonment in the event of an accident. Sober members of the public should go about their business as without fear of being hit by those who ply roads in their drunken stupors. Drunken driving will almost invariably attract imprisonment, see S v Nyathi HB-1-95; S v Chiweshe 1996 ZLR 425(H) and S v Chipato HH-202-90. Mr Makonese submitted that the sentence imposed induces a sense of shock. In my opinion imprisonment for such an offence does not induce a sense of shock per se as it seems to be the expected sentenced to be imposed in drunken driving cases. The shock can only be in the period of incarceration. The sentence of 12 months is rather on the higher side in view of the fact that there was no loss of life. Accordingly the sentence of 12 months imprisonment, the cancellation of the drivers licence coupled with a prohibition from driving for 12 months is set aside and is substituted by the following: 1. 2. 3. 6 months imprisonment The drivers licence is cancelled appellant is prohibited from driving all classes of motor vehicles for a period of 6 months. Ndou J ……………………. I agree