State v Sixpence Brian

### Preamble
1
HH-45-18
CRB TR24/17
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STATE

versus

SIXPENCE BRIAN

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 30 January 2018

Review Judgment

CHITAPI J: The record in this matter was placed before me on review. It was accompanied by a minute dated 1 August 2017 by the provincial magistrate which reads as follows:

“The Registrar

Kindly place the record before the honourable judge in chambers for review with the following trial magistrate’s comments;

“The accused person was convicted on his own plea of guilty to one count of contravening s 6 (1) (a) of the Road Traffic Act [Chapter 13:11] and was duly sentenced as reflected on the record cover.

However, I made a mistake in bringing into effect the sentence which was suspended in his previous conviction on CRB TR18/17. In that instead of bringing into effect 4 months imprisonment that was suspended I erroneously took it as 6 months imprisonment which makes the sentence incompetent.

I discovered the error well after passing sentence when the record was being prepared for scrutiny and hence became functus officio and could not invoke provisions of s 201 (2) of the Criminal Procedure and Evidence Act

Chapter 9:07].

Because of the aforegoing, may the incompetent sentence be quashed and substituted with the following sentence;

6 months imprisonment. In addition 4 months imprisonment suspended on CRBTR18/17 is brought into effect.

Total effective – 10 months imprisonment.

I am very sorry for the error and next time I am going to be wary of it.

Thank you

L Rwodzi

Provincial Magistrate”

Before correcting the inadvertent error committed by the provincial magistrate, the facts of the case will be briefly set out for the benefit of the reader and for records.

The accused, a 17 year old boy was arraigned before the provincial magistrate at Chinhoyi on 25 July 2017 on a charge of contravening s 6 (1) (a) of the Road Traffic Act, [Chapter 13:11]. The charge sheet detailed that on 20 July 2017 “along Harare – Bulawayo road, the accused unlawfully and intentionally drove a motor vehicle, to wit, a Toyota Wish without being a holder of a valid driver’s licence, thereby contravening the said Act.”

Section 6 (1) (a)  aforesaid prohibits any person from driving a motor vehicle on a road unless such person is the holder of a valid licence issued to him or her in respect of motor vehicles of the class concerned. Section 6 (5) provides that a person who contravene s 6 (1) which encompasses the offence of driving without a licence shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

The accused is a Chinhoyi resident. He was arrested by Highway Patrol police details at the Dzivarasekwa/Kuwadzana suburbs town off along Harare – Bulawayo road on his way from Bulawayo whilst driving the motor vehicle in issue.

The accused pleaded guilty to the charge. The prosecutor produced and the accused admitted a previous conviction dated 21 June 2016 wherein he was convicted by the magistrate at Chinhoyi Court for contravening s 52 (2) of the Road Traffic Act [Chapter 13:11] . Section 52 (2) creates the offence of negligent driving. The accused was not the holder of a driver’s licence and was also convicted on that charge. He was sentenced to 6 months imprisonment for negligent driving and to a further 6 months imprisonment for driving without a driver’s licence. Of the total of 12 months imprisonment, 4 months were suspended for 5 years on condition that the  accused was not convicted of negligent driving or driving without a licence during that period. The remaining 8 months were suspended on condition that the accused performed 280 hours of community service at Chinhoyi Magistrates Court.

The accused admitted the previous conviction. When asked as to why he drove the vehicle, he said that he was pirating to raise money to obtained a driver’s licence. The magistrate quite properly took a dim and serious view of the accused’s conduct despite his youthfulness. The magistrate reasoned that the accused was a person who had no regard for the law. He committed the offences whilst still under sanction to perform his community service. To be precise it was hardly a month following his previous conviction that he committed the present offence. The suspended sentence of 4 months was still hovering over him.

The accused in this case got off lightly with a 6 months effective sentence. The circumstances of the case could easily have justified the imposition of a more severe sentence despite the accused person being a minor. It may also have been appropriate to consider forfeiture of the vehicle in question because it was the object which he used to commit the offence. The magistrate correctly reasoned that the accused not only put himself at risk but risked the lives of passengers whom he carried and other road users by driving the vehicle without his competency to drive having been certified.

The accused’s reasons for breaching the conditions of the suspended term of imprisonment did not justify its non-imposition. The magistrate made an inadvertent error in treating the suspended term of imprisonment as 6 months instead of 4 months.

A correction of the sentence as requested by the magistrate will benefit the accused and will not worsen his position.

Accordingly, the following order will issue.

The proceedings are otherwise confirmed save that the sentence imposed by the magistrate is altered to read

“6 months imprisonment. In addition 4 months imprisonment suspended on 21 June 2017 in Case No CRB TR17817 is brought into effect.”

The accused shall be brought before the magistrate court to be advised of this correction and alteration and the record shall similarly be altered to reflect the altered sentence.