R v Robert Ewart Munro ((1963 - 1964) Z and NRLR 72) [1964] ZMHCNR 18 (9 April 1964)

R v ROBERT EWART MUNRO (1963 - 1964) Z and NRLR 72 1963 - 1964 Z and NRLR p72 [Before the Honourable the Chief Jus�ce, SIR DIARMAID CONROY, on the 9th April, 1964.] Flynote Driving a motor vehicle while under the influence of intoxica�ng liquor - sentence - sec�on 209 (1) of the Roads and Road Traffic Ordinance, Cap. 173. Headnote Munro was convicted by the Senior Resident Magistrate, Kitwe, of driving a motor vehicle when under the influence of intoxica�ng liquor, and fined £150 with five months imprisonment in default. His driving licence was suspended for twelve months and in addi�on he was given a sentence of three months imprisonment suspended for two years on condi�on that during that �me he was not found guilty of any offence involving drunkenness or contrary to sec�ons 208 or 209 of the Roads and Road Traffic Ordinance, Cap. 173. The sentence was reported to the High Court for confirma�on, under sec�on 8 of the Criminal Procedure Code. Munro was not a first offender. Held: The sentence passed was inadequate and wrong in principle. Sentence quashed, and a sentence of four months imprisonment with hard labour passed, with suspension of the convicted man's licence for a period of two years. Case cited: Manuel Ramos de Oliviera v Reginam Federal Supreme Court Criminal Appeal No. 170 of 1963 (unreported). Judgment Conroy CJ: Robert Ewart Munro was convicted by the senior resident magistrate at Kitwe on 18th January, 1964, of driving a motor vehicle when under the influence of intoxica�ng liquor, contrary to sec�on 209 (1) of the Roads and Road Traffic Ordinance. He is a 37 - year - old fiter, earning £110 a month, with two previous convic�ons. The first, in 1944, for the the� of a motor car, which is so long ago that I shall disregard it, the second for drunken driving at Lusaka on 11th August, 1962, when he was fined £100, ordered to pay £40 costs, and had his licence suspended for one year. The present convic�on was in respect of drunken driving on 13th December, 1963, i.e. four months a�er his suspension for his previous drunken driving convic�on had elapsed. The case against him was that at about 10 o'clock in the evening he drove into an island at a bus stop near the Edinburgh Hotel in Kitwe. He was undoubtedly very drunk, having spent the evening playing darts and drinking in the Rhokana Club. He did not give evidence himself, but he called a defence witness whose evidence was that he spent most of the evening with the accused, who had only drunk between five and eight pints of beer. The magistrate imposed a fine of £150, in default of payment five months imprisonment with hard labour. He also passed a sentence of 1963 - 1964 Z and NRLR p73 CONROY CJ three months imprisonment with hard labour suspended for two years on condi�on that the accused was not found guilty of any offence under sec�ons 208 and 209 of Cap. 173, or any other offence involving drunkenness, his driving licence to be suspended for twelve months. Under sec�on 8 of the Criminal Procedure Code this sentence had to be reported to the High Court for confirma�on. In my view this sentence was wrong. The accused had only been driving for four months a�er his last convic�on for drunken driving, and it was a bad case in that he had ploughed into an island in the middle of the road, through no fault of his own not injuring other users of the highway. The suspension of the sentence of imprisonment for two years was par�ally nugatory in that the accused could not drive for the first year of that period as his driving licence was suspended for twelve months. Therefore the condi�on as to not commi�ng any offence against sec�ons 208 and 209 of the Roads and Road Traffic Ordinance, which relate to drunk in charge and drunken driving, was to that extent ineffec�ve. It is clear to me that the previous sentence did not impress upon this man the gravity of the offence he had commited, and that a fine of £150 on a single man earning £110 a month was in the circumstances an inadequate assessment of punishment. The proper sentence to have passed upon this man was a sentence of imprisonment without suspension. Such a sentence has been accepted recently by the Federal Supreme Court as appropriate in a case where the circumstances were much less grave than those in the present case, see the judgment of Quenet, JA, in Manuel Ramos de Oliviera v R Criminal Appeal No. 170 of 1963. Drunken driving is a most serious offence, carrying a maximum sentence of imprisonment for five years. This is a bad case. The accused had his chance when he was fined for the same offence in 1962. He has not profited by that opportunity. On 29th February he was asked if he wished to make any representa�ons as to why the sentence should not be made more severe. He has made no representa�ons. I quash the whole of the sentence imposed by the magistrate, and in lieu thereof pass the following sentence: (a) four months imprisonment with hard labour, such sentence to run from the arrest or surrender of the accused; (b) his driving licence to be suspended for two years with effect from 18th January, 1964; (c) par�culars of convic�on to be endorsed on the licence. I direct that the court of the senior resident magistrate, Kitwe shall take such ac�on and make such orders as are conformable with my decision and are necessary for the arrest and commital to prison of the accused; for the suspension and endorsement of the driving licence, and for the repayment of the fine. A copy of this judgment is to be sent to the Road Traffic Commissioner.