DIRECTOR FOR PUBLIC PROSECUTIONS v EDWARD SUMARI 1989 TLR 150 (HC)

 

DIRECTOR FOR PUBLIC PROSECUTIONS v EDWARD SUMARI 1989 TLR 150 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

6 September, 1989

Flynote

Criminal Practice and Procedure - Sentencing - Illegal sentence - Special reasons for imposing sentence - What amounts to special reasons.

-Headnote

This is an appeal by the DPP against sentence of 10,000/= fine or two years  imprisonment imposed on the respondent by a District Court Magistrate for causing death of one Joseph G. Kisanga through dangerous driving which is an offence under section 40(1) of the Road Traffic Act. The Respondent had admitted the facts that on 21/11/1986 at about 11.30 am the respondent in an Isuzu Lorry No. TX 4652 drove his motor vehicle in the face of the deceased who was then riding his bicycle on his left and correct side of the road approaching from the opposite direction.

Respondent's lorry knocked down and crushed the deceased who died instantly. From inspection of the E motor vehicle, the lorry's steering and footbrake were serviceable both before and after the accident. The respondent stated that his father died of shock when he heard of the accident and that he had dependents. When addressed in terms of section 27 of Road Traffic Act he stated that the accident occurred because the sudden and serious defect F on the steering but he failed to elaborate. Without more the District Magistrate found that there existed special circumstances in the case which called for leniency on the respondent. The magistrate also refrained from suspending the respondent's driving license as well as disqualifying him from obtaining another one.

Held: (i) The offence of causing death through dangerous driving carries with it a mandatory minimum of two years imprisonment with or without a fine unless there exists special reasons to warrant the imposition of a lesser penalty;

(ii) special reasons under sec. 63(2)(a) of the Road Traffic Act, 1973 must be extraordinary facts peculiar to the offence or the offender. Ordinary mischief, or flagrant conduct by the accused at the material time, or ordinary antecedents will not amount to special reason peculiar to the offender;

(iii) special reasons must be advanced and the court must make a specific finding A thereon;

(iv) since the respondent failed as the law requires, to yield and give way to oncoming traffic including cyclists of whom the deceased was one while his footbrakes and steering were serviceable, there was a big element of deliberate risk taking on his part;

(v) in the circumstances the sentence imposed by the trial magistrate is not only in err, but it is also illegal for being below the minimum prescribed by law.

Case Information

Appeal allowed. C

Cases referred to.

1. R. v Mkama Ndaro [1977] LRT n.12

Judgment

Sisya, J.: This appeal is by the Director of Public Prosecutions. He is appealing against the sentence of shs.10,000/= fine or two years imprisonment in default of payment thereof imposed by the learned District Magistrate, Tanga, on the respondent. The latter was, on 25/11/86 and on his own plea, convicted for causing the death of one Joseph G. Kisanga through dangerous driving. This is an offence under section 40(1) of the Road E Traffic Act. The only ground of appeal advanced by the DPP is that the sentence meted out by the learned convicting magistrate is, under the circumstances of the case, manifestly inadequate.

In short, the admitted facts of the case are that on 21/11/86 at about 11.30 am the accused was driving an Isuzu lorry bearing registration number TX 4652 along the Independence Street from the direction of Bombo Hospital towards the main Post Office. When he reached the intersection of the said Independence Street and the Customs Street he turned right and drove towards the direction of Tanga Port. he did so in the face of the deceased who was then riding a bicycle on his, i.e. deceased, left and correct side of the road and who approached from the respondent's opposite direction, and without stopping in order to allow the deceased, who, incidentally, had the right of way, to pass. In the process the respondents lorry knocked down and crushed the H deceased, a form one student, who then died instantly. Going by the lorry's motor vehicle inspection report Exh.'D', the lorry's steering and foot brake were serviceable both before and after the accident.

In his address to the court before sentence, the respondent is recorded to have stated that his father died of shock when news of the accident reached him; that he has a sick mother, a wife and schooling children to support; that was his first offence, that he had long service with the Agricultural Department; and that his monthly pay (which was not disclosed) was very low.

Again, when addressed in terms of section 27 of the Road Traffic Act the respondent, this time, B stated that the accident occurred because the steering developed a sudden and serious defect. He did not elaborate what the alleged serious defect actually was. The motor vehicle inspection report, Exh.'D', however, tells the lie of the respondent's allegation on this aspect of the case. The respondent stated further that his speed was moderate at the time of the accident.

In sentencing the respondent the learned District Magistrate was greatly influenced by the fact that the speed at which the respondent was driving at the time of the accident was not mentioned by the Prosecution. Without more the learned District Magistrate D found that there existed 'special circumstances' in the case which called for 'leniency' on the side of the respondent. I interpret this to mean that the learned District Magistrate found that there were special reasons which warranted him to impose a sentence less than the minimum laid down by the law for that offence. The learned District Magistrate E also refrained from suspending the respondent's driving license as well as disqualifying him from obtaining another one.

In arguing out this appeal before me the learned Senior State Attorney, Mr. Mwale, bitterly criticized the sentence which he said was manifestly inadequate. Mr. Mwale argued further that the learned District Magistrate erred by failing to disqualify the respondent from holding a driving licence because no special reasons were advanced by him.

The offence of causing death through dangerous driving carries with it a mandatory minimum of two years imprisonment, with or without a fine, unless there exist special reasons to warrant the imposition of a lesser penalty. In the case of Republic v Mkama Ndaro [1977] LRT n. 12 my learned brother, Katiti Ag.J. (as he then was) held, among other things, that 'what amounts to special reasons may be special facts which constitute H the offence and/or facts that are personal (-and I may add, and special) to the offender.' With this I, most respectfully, agree. Special reasons under section 63(2)(a) of the Road Traffic Act, 1973, must be extra ordinary facts peculiar to the offence or to the offender. A fact may be extraordinary and peculiar or special to the offence if, for I example, the accused committed the offence while rushing an expectant mother or an accident victim to hospital for urgent management. Ordinary mischief or flagrant conduct  by the accused at the material time will not suffice to amount to a special reason. Likewise a fact may be extraordinary or special to the offender if, for example, it is established that the accused has a very long and unblemished driving record or having regard to the age and character of the accused it is inexpedient to inflict custodial punishment. Ordinary antecedents such as having a family to support or if accused is a professional driver will, in my considered opinion, also not suffice as special reasons peculiar to the offender.

Special reasons must be advanced and the court must make a specific finding on the same. In this instant matter the respondent was given opportunity to advance special reasons both before sentence and before making an order regarding the issues advanced by him before driving. With respect, none of the issues advanced by him before sentence amounts to a special reason. Instead the respondent dwelt on obvious and deliberate lies D in an attempt to explain why the accident happened. All that he said is now not viable as there is no appeal against conviction. The admitted facts, on the other hand, clearly show that the respondent was at fault. He simply did not stop or, at least, slow down at E a place where he was required by the law to yield and give way to oncoming traffic which includes cyclists of whom the deceased was one. Since he did so while his footbrakes and steering were serviceable and the deceased approached in front of him I find that there was a big element of deliberate risk taking on the respondent's part. I F repeat that there are no special reasons peculiar to the offence to warrant imposition of a lesser penalty. I, again, see none special to the offender, that is the respondent himself.

In the circumstances and on my part I find that the sentence imposed by the learned trial magistrate does not only err on the lenient side but it is also illegal for being below the minimum prescribed by the law. This appeal, therefore, has merit and it must succeed. In the final result in addition to the fine which was paid the respondent is further and now sentence to two years imprisonment.

Appeal allowed.

1989 TLR p154