Shaabani Saidi v. R. Crim. App. 663-D-69; 7/11/69, Georges C. J.

 

Shaabani Saidi v. R. Crim. App. 663-D-69; 7/11/69, Georges C. J.

The appellant in this case pleaded guilty to causing death by dangerous driving contrary to section 44(1) A and section 15 of the Traffic Ordinance Cap. 168. The gist of the matter was that the appellant who was driving a Fiat Lorry with trailer attached overtook another vehicle ahead of his on the Iringa Road. This vehicle was raising a cloud of dust as it went along so that it was not possible to see what lay ahead. The appellant continued his overtaking maneuver and ran into a railway bus parked on its correct side of the road facing the direction in which the appellant was going. Both vehicles were extensively damaged. Two passengers in the bus were killed, one suffered serious injury and many of them minor injuries. The appellant was convicted and sentenced to 3 years imprisonment.

            Held: “The sentence of 3 years imprisonment is in my view too severe …. Accepting the case put forward by the prosecution the negligence was serious. The appellant was, however, a first clean driving record for 10 years. Mr. Kanabar quoted a case decided in Kenya some 7 years ago – Selhi v. R. [1962] E. A. 523. In that case the defendant drove on to a pedestrian crossing hen she had not a clear view of the whole crossing are. She struck and killed a pedestrian who was moving to the other side of the road. She had been traveling at 25 miles per hour. Her footbreaks were not in good working order. The magistrate found the appellant guilty of dangerous driving and sentenced her to 3 months imprisonment. On appeal the sentence was varied to one of Shs. 1,000/-. The Court held that the moral turpitude on the appellant’s part was not such as to merit a prison term. As far as driving offences are concerned the criterion does not appear to me to be one of moral turpitude. There is hardly ever moral turpitude in negligent driving involving as it does act not deliberately done. Punishment should be graded according to the degree of negligence and the damage which could reasonably be for seen as a consequence. It must be clear that driving a heavy lorry and trailer on the wrong side of the road through a cloud of dust which reduced visibility greatly is a serious act of negligence. The legislature contemplates that imprisonment is an appropriate penalty where the negligence is sufficiently grave. I think in this case imprisonment was appropriate. The minimum which could be imposed was 10 years. This must be reserved for the very worst of case, where the accused has a bad record as well. With a good record, as in this case, a sentence of 2 years would be adequate, with a suspension of the driving licence for 3 years. The sentence is varied accordingly.”