Rex v Batista (Cr. App. No. 124/1935.) [1936] EACA 23 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), ABRAHAMS, C. J. (Tanganyika), and KNIGHT-BRUCE, Ag. J. (Zanzibar).

## REX, Respondent (Original Prosecutor)

## ENERIKO SEMPALA S/O YOWANA BATISTA, Appellant (Original Accused).

Cr. App. No. $124/1935$ .

Manslaughter-Negligence-Sentence.

Held (14-11-35).—That a sentence of seven years imprisonment with hard labour is excessive, and if sentences of three years which have heretofore been passed for offences of this kind have failed to act as a deterrent, recourse must be had to other means than imprisonment to lessen the toll of the road.

Appellant absent, unrepresented.

Vaughan (Ag. A. G., Zanzibar), for the respondent.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The appellant was convicted of manslaughter by killing a person through the criminally negligent driving of his omnibus. He was sentenced to seven years' hard labour and in addition it was ordered that he be disqualified from driving a public vehicle for life and any other kind of motor vehicle for three years. Admitting that the case was a bad one of criminal negligence calling for a severe sentence, we are firmly of the opinion that the sentence is an excessive one, and it is our view that if sentences of three years, which have heretofore been passed in Uganda for offences of this kind and have not been interfered with by this Court, have failed to act as a deterrent then recourse must be had to other means than imprisonment to lessen the toll of the road.

We have in mind such measures as for instance, the better patrolling of roads and a greater discrimination in issuing licences to drivers of public motor vehicles. If imprisonment is to be regarded as a deterrent surely a sentence of three years should be adequate. What we do regard as a real deterrent is the permanent cancellation of a driver's licence and in this respect we consider that the appellant was fortunate in not having his licence for all motor vehicles public and private permanently cancelled.

The learned Judge took into consideration certain figures given by Captain Roberts, Superintendent of Police, of motor accidents and resulting deaths and concluded therefrom that it was clear that those figures were on the increase at an alarming

rate. He was clearly entitled to draw this inference but then it must be remembered, as was recently held by the Court of Criminal Appeal in England, in a case to which unfortunately we have not access, that the prevalence of a particular class of crime in a locality is not necessarily of itself a ground for imposing a more severe sentence than that which would normally be imposed. The point is referred to in the Law Times of the 4th May, 1935, Volume 179, p. 327, though the reference to the case is not given. The undue severity of the sentence passed in the present case will be better appreciated when section $304$ (a) of the Indian Penal Code is referred to. (This Code was in force in Uganda prior to the passing of the present Penal Code). It provides that: $-$

"Whoever causes the death of any person by doing any rash or negligence act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

It is under that provision of law that the present case would in all probability have fallen had it occurred prior to the passing of the new code. In fact, there was an appeal to this Court in a case from Uganda tried by Mr. Justice Guthrie-Smith some years ago. The case was one of causing death through the negligent driving of a motor omnibus, section 304 (a) was held to apply and we believe the sentence was reduced from five years to six months.

Now if the maximum sentence for this class of offence was fixed some years ago at two years with fine it will be clear that a sentence of three years to which we propose to reduce the sentence in the present case is a very severe sentence which, if imprisonment is to have any deterrent effect, must be considered adequate. In England where the toll of the road has given rise to such grave concern, there is, so far as we are aware, no parallel for the term of imprisonment imposed in this case.

The sentence is reduced to one of three years' hard labour; the order for cancellation of licence will stand.