S v Serabo and Five Similar Cases

• Jurisdiction: South Africa
• Judge: Kroon J, Jones J and Sandi J
• Judgment Date: 01 April 2002
• Citation: 2002 (1) SACR 391 (E)
• Hearing Date: 01 March 2002
• Court: Eastern Cape Division

Jones J:

The National Road Traffic Act 93 of 1996 was brought into operation on 1 August 2000. Section 65(1) and (2) re-enacts, with certain amendments, the prohibition on driving a motor vehicle while under the influence of liquor or while the H concentration of alcohol in the driver's bloodstream exceeds the level permitted by statute. The section reads:

'65 Driving while under the influence of intoxicating liquor or drug having narcotic effect, or with excessive amount of alcohol in blood or breath

(1)

No person shall on a public road - I

(a)

drive a vehicle; or

(b)

occupy the driver's seat of a motor vehicle the engine of which is running,

while under the influence of intoxicating liquor or a drug having a narcotic effect.

(2)

No person shall on a public road - J

Jones J

(a)

drive a vehicle; or A

(b)

occupy the driver's seat of a motor vehicle the engine of which is running,

while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 millilitres, or in the case of a professional driver referred to in s 32 not less than 0,02 gram per 100 millilitres.' B

The penalty for a contravention of the section is set out in s 89 which provides that

'(1)

Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence. C

(2)

Any person convicted of an offence in terms of ss (1) read with s 42(1) or (2), 44(1), 45(2), 46(1) or 65(1), (2), (5) or (9) shall be liable to a fine or to imprisonment for a period not exceeding six years.'

In terms of s 35 every driving licence of any person convicted of an offence referred to in s 65(1) or (2) shall be suspended, in the case of a first offence, for a period of at least six months; in the D case of a second offence, for a period of at least five years; and in the case of a third or subsequent offence, for a period of at least ten years. The section also provides that unlicensed drivers who are convicted of these offences are disqualified from getting a licence for similar periods. Section 35(3) gives the courts a discretion to order that suspension or disqualification should not take effect, or that it E be for a lesser period.

Recently the magistrates in East London have increased the sentences they impose on first offenders for contraventions of s 65(1) and (2). The increase relates both to the amount of the fine and to the period of imprisonment imposed in default of payment. It has been sufficiently F significant to cause the Judges on review to request the magistrates to justify their sentences in certain cases. Six such cases have been set down before us for argument on review in terms of s 304 of the Criminal Procedure Act 51 of 1977. We are indebted to Mr Robinson on behalf of the State and Mr Boswell, who argued the matter on behalf of the six accused pro amico, for their helpful arguments. It is convenient to deal with G all six reviews in a single judgment.

In the first four cases and the sixth case the accused pleaded guilty to and were convicted of driving a motor vehicle while under the influence of intoxicating liquor in contravention of s 65(1)(a). In the fifth case the accused pleaded guilty to and was convicted of driving a motor vehicle at a time when the alcohol H concentration in his blood measured 0.17 expressed in grams per 100 millilitres of blood in contravention of s 65(2)(a). None of the accused has a previous conviction for a contravention of these sections or their predecessors. They are all from different walks of life. In each case the magistrate imposed a fine with the option of I imprisonment. He also ordered that the automatic suspension of the accused driver's licence should not be brought into operation. And he suspended half or more of his sentence for a period of five years on condition that the accused does not repeat his offence within the period of suspension. The fines range from R4 000 to R6 000, and the alternative periods of imprisonment from six months to 18 months. J

Jones J

These sentences are severe. It is apparent from them and from the A many other cases which come to us on automatic review from East London that the magistrates have determined that sentences within this range are the 'norm' in this kind of case. The issue before us is whether or not the sentences imposed on first offenders in terms of this norm are in accordance with justice. Before addressing that issue I should for convenience restate certain principles which have become B established over the years and which form the underlying rationale for sentences for driving while under the influence of liquor or with an impermissible concentration of alcohol in the blood.

1.

These offences are serious offences which deserve censure and public disapproval and which warrant severe sentences. C

2.

They are sufficiently serious to warrant a sentence of a term of imprisonment and a fine.

3.

However, they do not in the absence of aggravating circumstances warrant a sentence of imprisonment without the option of a fine in the case of first offenders. The courts will ordinarily attempt to keep a D first offender out of prison by imposing a fine with the alternative of a period of imprisonment. In appropriate circumstances the courts will suspend portion of the sentence. They will also defer payment of the fine or order payment in instalments.

4

A contravention of s 65(2) is a less serious offence than a contravention of s 65(1) and will normally result in a less severe sentence. E

5.

It is desirable for sentences for these offences to be consistent so that similar sentences are imposed for similar offences. For this reason a 'norm' is frequently developed as a point of departure. The sentence imposed will usually bear some relationship to that norm.

6.

In striving for consistency, it is necessary to bear in mind that two cases are seldom if ever identical because the circumstances F of the case and the personal circumstances of the offender are likely to vary.

7.

The courts should never rigidly impose sentences to conform with a particular norm without considering the case on its own merits in the G light of its own circumstances, and, in particular, without regard to the offender's income and his ability to pay the fine.

8.

Where a portion of the sentence is suspended, such portion is an integral part of the sentence, and not something 'added on' for purposes of deterrence. The correct approach is first to decide upon an appropriate sentence, and then to consider suspension. H

These propositions are undoubted. Most of them are to be found in the judgment of the Full Bench delivered by Mullins J in S v Labuschagne and 19 Others1990 (1) SACR 313 (E). With regard to the seriousness of the offence and the question of consistency the learned Judge has this to say in Labuschagne's case at 317c - d: I

'The seriousness of the offence of driving under the influence of liquor cannot be over-emphasised. Its moral and social implications, and the threat it creates to life and property, are undoubted. It is unnecessary to reiterate the various judicial pronouncements to this effect.

Nevertheless, an important aspect of penology is that there should be a measure of consistency in punishments for particular offences, particularly in the J

Jones J

case of those offences which by their nature are of a similar pattern. In the case of drunken driving (as I shall call A contraventions of s 140(1) of the ordinance) that measure of consistency is to be found in a number of our reported judgments.'

The learned Judge refers to a number of authorities which say that the offence of drunken driving is sufficiently serious to warrant a sentence of imprisonment without the option of a fine, with the B exception of a first offender who commits the offence without any aggravating circumstances. They are S v Choonara1963 (2) SA 333 (T)per Kuper J at 334B - G; S v Cox1963 (4) SA 731 (E); S v Oshman1962 (3) SA 643 (O); S v Hughes1964 (2) SA 124 (T), S v Lamprecht; S v Van Rensburg; S v Van den Hoven; S v Geyser 1970 (3) SA C 141 (T); S v Langeveldt1970 (3) SA 438 (C); and S v Mackriel1985 (2) SA 622 (C). In Langeveldt's case, a Full Bench decision in the Cape Provincial Division, Corbett J (as he then was) discusses some of the problems of achieving consistency in criminal sentences. He says at 440B - 441C:

'(T)he general tendency hitherto has been not to impose imprisonment without the option of a fine upon a first offender found D guilty of driving while under the influence of liquor. The normal sentence in such cases is [in 1970] a fine varying from R60, to R200 - depending on the circumstances - together with a short prison sentence which is wholly suspended upon appropriate conditions. Because the sentence in the present case differed from this general trend, this matter was fully discussed by all the Judges of this Division. It was E decided (by a majority) to confirm the sentence imposed by the magistrate. At the same time I feel that the following general observations should be made with reference to sentencing policy in cases of this nature:

(1)

While it is important that there should be a reasonable degree of consistency in the sentences imposed by the courts, in the sense that offences of the same nature committed under similar circumstances by persons in the same general situation should be punished with F approximately the same degree of severity, this ideal should not obscure the important differences of character and circumstances that often exist between different offences and different offenders. It may be just as inequitable and undesirable to ignore these...