S v Sithole (464/2001) [2002] ZASCA 134 (30 September 2002)

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[2002] ZASCA 134
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S v Sithole (464/2001) [2002] ZASCA 134; 2003 (1) SACR 326 (SCA) (30 September 2002)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO 464/2001
In the matter between
DUMISANI
SITHOLE Appellant
and
THE STATE Respondent
____________________________________________________________
CORAM: HARMS, CONRADIE JJA et JONES AJA
HEARD: 19
SEPTEMBER 2002
DELIVERED: 30 SEPTEMBER 2002
____________________________________________________________
SUBJECT: Sentence for drunken driving; effect of
alcoholism on sentencing.
_____________________________________________________________
JUDGMENT
CONRADIE
JA
[1]
The appellant was convicted on his plea of guilty in the
magistrates’ court on two charges of having contravened section 122
(1)(a)
of the Road Traffic Act 29 of 1989 by driving a vehicle under
the influence of intoxicating liquor. He was sentenced to three
years’
imprisonment on each charge and his driver’s licence was
cancelled. On appeal to the Natal Provincial Division against the
sentence
of imprisonment and the cancellation of the licence, the
Court declined to interfere with the latter, but set aside the
sentence
of six years’ imprisonment. Instead, it imposed a sentence
of four years’ imprisonment in terms of
section 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
. Its effect is that the appellant
must serve at least one sixth of this by way of a custodial sentence
and the rest of the period
under correctional supervision.
[2]
The appellant, with the leave of the court
a quo,
appeals
against the sentence.
[3]
The appellant’s history of aberrant road conduct started in 1987
with a conviction for negligent driving and failure to report
an
accident within the time allowed. For his first offence of driving
under the influence of intoxicating liquor the appellant was
in March
1989 sentenced to four months’ imprisonment with the option of a
fine. If he learned a lesson from this experience, it
was not a
salutary one. Two years later, in April 1991, he was again convicted.
The fine was ten times greater than it had been the
first time;
moreover, in addition to imprisonment in default of payment of the
fine, a year’s imprisonment suspended for five years
was imposed
and the appellant’s driver’s licence was suspended for two years.
[4]
In May 1996 the appellant was convicted once more. The offence
appears to have been committed within the period of suspension of
the
earlier term of imprisonment. His punishment was less severe than it
had been on the previous occasion, which can only be explained
by the
fact that the appellant’s previous convictions were not proved. The
new suspended sentence of 12 months’ imprisonment
was so carelessly
imposed that no period of suspension was mentioned. This probably
worked to the appellant’s advantage because
on 1 June 1998, three
years later, he was drinking and driving again. This transgression,
involving a collision, was his fourth offence
of the same sort. On 7
November 1998, and while he was awaiting trial on the previous
offence, he committed his fifth.
[5]
Although the appellant had not previously been imprisoned for driving
under the influence of intoxicating liquor (he had been for
fraud),
the magistrate was not persuaded that the appellant should have the
‘benefit’ of a sentence of correctional supervision
under
section
276(1)(h)
of the
Criminal Procedure Act, 1977
, that is to say one
without any custodial element but one which, as the appellant’s
counsel has contended throughout, would have
the merit of being
tailored to ensure a supervised program of structured rehabilitation.
[6]
The Court
a quo
disagreed with the magistrate’s assessment
of the appellant’s situation. This appeal raises, once again, the
tension that tends
to arise in cases of this kind between deterrent
and preventative (on the one hand) and reformatory aims (on the
other) and the endeavour
to find a satisfactory balance between the
two.
[7]
Courts in this country have long acknowledged that alcohol addiction
is a disease and that it would be to the benefit of society
and of
the offender if the condition can be cured. But it is necessary to
make the obvious point that drunken driving is not a disease.
One is
distressingly familiar with maudlin pleas in mitigation that the
drunken driver in the dock is an alcoholic, as if the disease
excused
the crime. It does not (
S v Fraser
1987 (2) SA 859
(A) at
864B-D).
[8]
Addiction to alcohol is not an excuse for driving under the influence
of liquor. In many cases the addiction would be an aggravating
feature of the offence. The alcoholic who takes his car to the pub
knows when he parks it outside that he will probably not be sober
enough to drive it home. He recklessly courts the danger of criminal
conduct. His conduct is more reprehensible than that of the
person
who carelessly has one too many. Drug dependence in general is often
characterized by associated criminal conduct. Driving
under the
influence of liquor is criminal conduct associated with alcoholism.
There is no reason why the courts should be more tolerant
of that
than they are of, say, stealing to support a drug habit.
[9]
The need to impose sentences that provide for the rehabilitation of
those addicted to alcohol and, for that matter, to other kinds
of
drugs has frequently been stressed. This is a laudable object of
sentencing but not the only and there is obviously no point in
devising a rehabilitative sentence if the offender’s rehabilitation
prospects are remote. (
Cf
S v Fraser (supra)
at 864J –
865A;
S v Noemdoe
1993 (1) SACR 264
(c) at 273 b – c;
S
v Keulder
1994 (1) SACR 91
(A);
S v Labuschagne
1995 (2)
SACR 200
(W). It is on the question of rehabilitation, mainly, that
the paths of the two courts below diverged.
[10]
The trial court was skeptical of reports prepared by the probation
officer and the correctional supervision officer. Both of them
recommended correctional supervision as a sentencing option, but
their reports were woolly and poorly researched. On the prospect
of
rehabilitation the social worker reported that the appellant had once
before been admitted to a rehabilitation center, that he
had had
implants, psychiatric treatment and psychological counseling and that
‘nothing had worked.’ That was hardly encouraging
for someone out
to satisfy the court that he was capable of reform; but she did add
that ‘since the incident (she probably refers
to the second of the
two) the wife has reported that she has not seen him drunk and also
the accused has confirmed that he has not
taken any liquor since the
accident.’ That was rather more encouraging, as far as it went, but
its persuasive force was diminished
by the failure of the appellant
and the observant wife to testify.
[11]
The Court
a quo
was more receptive. On the evidence, scanty as
it was, it accepted that the appellant had shown a willingness to
change. It was,
in this regard, assisted by a finding of fact made by
the magistrate (which was not challenged in the Court
a quo
,
or before us on appeal) that the appellant has abstained from liquor
since his convictions on the two charges.
It
evidently considered that society’s interests and those of the
appellant would best be served by a much shorter period of
imprisonment
followed by a compulsory rehabilitation program. On the
evidence, it may have been a little too sanguine of the appellant’s
rehabilitation
prospects, but that is not a misdirection vitiating
the exercise of its discretion, particularly since the Court was
alive to the
fact that the public’s interest in reducing the
dangers on our roads called for a measure of deterrence.
[12]
The thrust of the appellant’s argument on appeal was that
correctional supervision under
section 276(1)(h)
– an entirely
non-custodial sentence – would have adequately taken account of
societal interests. I disagree. A person with the
appellant’s
record cannot expect to escape prison altogether. Too many people die
on our roads for that to be an option. Driving
under the influence of
intoxicating liquor is a serious crime and repeated offences greatly
augment its seriousness, particularly
where, as here, one of the
offences is committed during the currency of a suspended sentence for
the very same kind of offence, and
another is committed while
awaiting trial on an earlier offence of the same kind.
[13]
Nevertheless, the Court
a quo
was correct in concluding that
the sentences imposed by the magistrate, at least cumulatively, were
too severe. The discretion, which
it then exercised in imposing a
fresh sentence, cannot be faulted.
[14]
The magistrate cancelled the appellant’s driver’s licence
immediately on conviction and before having heard evidence in
mitigation
of sentence. It was argued that she should not have done
this at the time that she did. The appellant’s representative at
the
trial was asked whether he could argue against immediate
cancellation of the accused’s licence. He replied that he could
not.
There was no irregularity; even if there were, it would be hard
to extract from it the smallest bit of prejudice.
The appeal
is dismissed.
---------------------------------------
J
H CONRADIE
JUDGE
OF APPEAL
HARMS
JA )
JONES
AJA ) CONCUR