Bakari s/o Hamisi v. R. Crim. App. 742-D-69, 29/10/69, Georges C. J.

Bakari s/o Hamisi v. R. Crim. App. 742-D-69, 29/10/69, Georges C. J.

The appellant was driving a motor car along Masasi/Lindi Road at about 1 P.M when a bus which was traveling in the opposite direction stopped some distance away from him. Passengers came off the bus, and one of them attempted to cross the road, coming from behind the bus in so doing. The appellant collided with one of these persons. Unfortunately it turned but to be a pregnant woman. Her leg was broken and had to be amputated. She had a miscarriage and suffered a very severe cut in the area between her anus and her vagina. The appellant pleaded guilty to dangerous driving and he has not challenged this plea. The learned magistrate sentenced the appellant to 18 months imprisonment. Appeal from sentence only.

Held (1) “I think it may be stated as a general principle that in traffic offences, other than causing death by dangerous driving, where the accused is a first offender punishment should be by way of fine rather than by way of imprisonment. The fact that section 45 of the Traffic Ordinance cap. 168 itself lays down both a term of imprisonment and a fine as a method of punishment would indicate that the legislature contemplated that this was the type of offence in which a fine would normally be appropriate. It is somewhat difficult to understand why the learned magistrate arrived at the figure of 18 months imprisonment……” (2) “Significantly the learned magistrate did not suspend the appellant’s driving license in this case. Suspension of a driving licence is one of the most appropriate punishments in the case of serious driving offences. If the learned magistrate thought that the appellant’s driving was so atrocious as to deserve imprisonment for a period as long as 18 months then clearly the appellant was the sort of person who should be kept off the road for a considerable period in order to protect other road users.” (3) It may be that the severity of the injury suffered by the pedestrian may have affected his judgment. For my part, I would not think that the severity of the injury suffered by the victim as the result of dangerous driving should be a factor of great relevance in arranging at the punishment which should be imposed on the offender. What ought to be considered

            Is the recklessness of the act, having regard to the nature condition, the use of the road and the amount of traffic which was actually on it at the time or which could reasonable be expected on it. The appellant was not driving at a rate of speed which could be called excessive. His act of negligence was failure to keep a sharp look in circumstances when he ought to have known that a careless pedestrian might attempt to cross the road from the back of the bus. This negligence is grave enough to be described as dangerous, but in my view cannot merit the imposition of prison term on first offender.” (4) Appeal allowed and sentence varied to a fine of Shs. 350/-. Or 4 months imprisonment in default as well as suspension of driving licence for 12 months.