What is a fair sentence?
A driving under the influence (DUI) case was recently appealed in the Western Cape High Court, not because the appellant wished to challenge the conviction, but because he felt the sentence was inappropriately severe. It is an interesting case from a legal perspective, because it deals with the nature and purpose of punishment. Should the personal circumstances of the accused be taken into consideration? Does it matter that there were (in this instance) no damages caused by the accused in the commission of the crime? The fact that this case was appealed, and a different decision reached by the appeal court, demonstrates that the definition of a fair sentence is highly subjective. We explain the case below. Was the original sentence fair? Or is the adjusted sentence fair? You decide.
The circumstances of the case are as follows: The appellant was having a few beers with friends at home when his neighbour asked him, at 11.00 pm, to drive to the local clinic and collect her husband. The neighbour was concerned for her husband’s safety walking home at that time of night, and the appellant agreed to drive to the clinic. On the way home, he was pulled over by the police and arrested for driving under the influence. He was taken to hospital where a blood sample was drawn. His blood alcohol level was 0.19g per 100 ml, far in excess of the legal limit of 0.05g per 100 ml. He was charged with driving under the influence (DUI). When the case came to court, he pled guilty and was convicted as charged. He also had a previous conviction for DUI, along with other convictions.
The magistrate sentenced the appellant to a fine of R12 000 or 18 months’ imprisonment, of which R6 000 or nine months’ imprisonment was suspended for five years on condition that he did not contravene section 65(1) and 65(2) of the National Road Traffic Act (NRTA) during the suspension. Additionally, his driver’s licence was suspended for five years.
The appellant’s personal situation
In the original case before the magistrate, the appellant’s attorney made a number of submissions regarding his personal circumstances and even called him to testify on his own behalf. The appellant told the court that he had held his licence for 21 years and needed it for work and personal use, as he regularly travelled from Cape Town to Gqeberha to see his daughter. His work as a safety officer entailed making site visits after hours when no public transport was available. The defendant and his attorney hoped these mitigating circumstances would allow him to retain his driver’s licence, but that was not what the magistrate ruled.
The appellant appealed only against the suspension of his licence. He did not contest the conviction nor challenge the fine and suspended sentence. But he wanted his driving licence back. His initial application for appeal was refused by the magistrate, but was granted by the High Court. The court noted that there were historically conflicting decisions on the interpretation of section 35 of the NRTA, and the consideration of these differing interpretations is what makes this case of interest. Section 35 refers to the respective durations of driving licence suspension according to first, second, or third/subsequent offence for speeding or reckless driving (DUI is classed as reckless driving). A second offence requires a licence to be suspended for at least five years, and this was the appellant’s second offence.
However, section 35 goes on to say, “If a court convicting any person of an offence referred to in subsection (1), is satisfied, after the presentation of evidence under oath, that circumstances relating to the offence exist which do not justify the suspension or disqualification referred to in subsection (1) or (2), respectively, the court may, notwithstanding the provisions of those subsections, order that the suspension or disqualification shall not take effect, or shall be for such shorter period as the court may consider fit.” And this is the subject for debate that informed this appeal and its ultimate decision. The appeal was heard by a panel of three judges.
Narrow vs. broad interpretation
The narrow, or literal, interpretation of “circumstances relating to the offence” means that any mitigating circumstances the court is obliged to consider are restricted to those relating to the offence itself, and unless a particular circumstance can truly be said to relate to the offence, it must be left out of the account.
The wider interpretation looks more broadly at sentencing per se. In another case (Lourens), the judge was of the opinion that, when imposing a sentence, the court must arrive at the most appropriate sentence in accordance with the accused’s fair trial rights, as laid out in section 35 of the Constitution. In that case the judge said, “…in considering an appropriate sentence under section 35 [of the NRTA] consequent to the commission of an offence in terms of s 65(1), an interpretation of the words ‘circumstances relating to the offence’ in section 35(3) is to include a consideration of the circumstances of the offender and the interests of the community.”
In hearing the appeal, the three judges considered both interpretations and looked to the Constitution for the best approach. Section 39(2) of our Constitution provides that: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” In other words, the court must be sensitive to the effect a suspension order may have on the offender, and it can only do that by considering their personal circumstances. Equally, sentencing is about achieving the right balance between the crime, the offender and the interests of the community. The aim of a driving licence suspension is twofold: to punish the offender and to protect society. Being deprived of one’s licence in modern society is a considerable punishment, even a hardship, as it can impact on one’s ability to make a living and to maintain contact with family and dependants. But driving under the influence of alcohol also has a hugely detrimental impact on society, as alcohol is a factor in over a quarter of fatal road traffic accidents.
The judges in this case decided that a broad interpretation of s 35 of the NRTA was more appropriate than the narrow view. They were willing to take into account the fact that the appellant needed his driving licence for his work, and in fact had lost his job as a result of the suspension. They also felt the original magistrate’s court had failed to consider the circumstances that caused the appellant to get behind the wheel after a few drinks, i.e. driving to the clinic to collect a neighbour. The road was not busy and it was a remote rural area. No one was hurt or killed as a result of the DUI. The judges believed the magistrate placed too much emphasis on the appellant’s previous conviction.
They therefore upheld the appeal and reduced the driving licence suspension from five years to 18 months.
The moral of the story
The moral of this story is NOT that drinking and driving is OK as long as you don’t kill anyone! Nor is it that, if you can plead sufficient mitigation, your sentence may be less severe than it otherwise would be. It is true that the appellant undertook an unanticipated neighbourly act after a few beers; he did not drive to a bar with the intention of getting drunk and driving home. Nor was he on a busy freeway travelling at high speed. BUT, he did take the wheel of a vehicle knowing he was over the legal limit for driving. He could have turned his neighbour’s request down. There were potentially other solutions to her situation. A quiet rural road does not necessarily mean the risk he took was minimal. These roads are often poorly lit and are used by pedestrians. The outcome could have been so much worse.
The story proves that we have a legal system that is fair and takes everyone’s rights into consideration. By reducing the suspension order from five years to 18 months, the court acknowledged the hardship the suspension caused the appellant and its impact on his ability to earn a living, see his daughter, etc. But the fact that his suspension was not lifted is proof that our courts consider driving under the influence a serious crime with potentially devastating consequences. Eighteen months is still a long time to cope without a driving licence. And this man now has two convictions for DUI. If he is convicted a third time, he faces a ban of at least 10 years.
The moral of the story is: DON’T DRINK AND DRIVE, whatever the circumstances!
Save our number…but try not to need it!
Cape Town attorneys SD Law & Associates are experts in DUI. If you are arrested for driving under the influence, contact criminal defence lawyer Simon Dippenaar on 076 116 0623. Save the number in your phone…better safe than sorry.
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This post also appears on criminaldefenceattorney.co.za
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