CASE NO.

: CA 63/2010 IN THE HIGH COURT OF NAMIBIA In the matter between

KEITH DUVEGE DUVENHAGE

APPELLANT

versus

THE STATE

RESPONDENT

CORAM: Heard on: Delivered on:

NDAUENDAPO, J 2011 June 13 2011 June 23

et

SIBOLEKA, J

________________________________________________________________________ APPEAL JUDGMENT: SIBOLEKA J:

[1]

The 19 year old appellant appeared before the Magistrates Court

at Otjiwarongo on a charge of culpable homicide resulting from a road

accident. He pleaded guilty as charged and through his counsel, Mrs. Dreyer a plea explanation in terms of section 112(2) of Act 51/77 was handed in Court upon which a conviction followed. He was sentenced as follows:

Two (2) years imprisonment of which 14 (fourteen) months is suspended for 4 (four) years on condition that the accused is not convicted of culpable homicide committed during the period of suspension.

[2]

It is his dissatisfaction on the above sentence that the appellant

brought before us represented by Mr. Botes while Ms. Esterhuizen appeared for the respondent. This Court is indebted to the valuable

contributions from both counsel in this regard.

[3]

After listening to arguments from both parties and having regard to

their heads of arguments filed we decided to set aside the learned Magistrates sentence and substituted it with the following:

N$7,000.00 or two years imprisonment of which N$3,000.00 or one (1) year are suspended for a period of five years on condition that the accused is not convicted of negligent driving, committed during the period of suspension.

[4]

We indicated at the time that our reasons for the ruling will follow

latter and here are the reasons.

[5]

The grounds of appeal stated:

1. That the learned Magistrate erred by imposing a sentence which induces a sense of shock and which is inappropriate in the specific circumstances. 2. That the learned Magistrate erred and/or misdirected himself by imposing a direct custodial sentence whilst various other options with regard to sentencing, which are more appropriate, were available to him. 3. That the learned Magistrate misdirected himself and/or erred by not considering the mitigating circumstances presented to Court, more specifically: 3.1 3.2 3.3 that the Appellant had pleaded guilty and had not disputed his negligence; and that the Appellant is a first offender with no previous criminal record; and that the Appellant is gainfully employed by Bank Windhoek, Limited, recently married and will in all probability lose his employment as a result of a direct custodial sentence; and 3.4 that the Appellant himself suffered severe injury as a result of the accident and his leg was amputated as a result thereof; 3.5 that the Appellant was hospitalized for an extensive period of time following the accident and had suffered a tremendous financial loss as a result thereof; and 3.6 4. that the Appellant is a position to pay a fine in respect of the offence. That the learned Magistrate erred and/or misdirected himself by not having regard to the proposal of the Public Prosecutor to impose a fine of N$3,000.00 in the specific instance. 5. That the learned Magistrate erred in fact and/or in law and misdirected himself in failing to lend sufficient weight to the evidence presented by the Appellant in mitigation.

6.

That the learned Magistrate erred in fact and/or in law and misdirected himself by lending excessive weight to the evidence presented by the State in support of aggravating circumstances.

7.

That the learned Magistrate erred in law and/or misdirected himself in failing to properly consider and apply his mind to the relevant circumstances of the matter and sentences imposed by other Courts in respect of similar offences.

8.

That the learned Magistrate erred in law and misdirected himself in failing to exercise his discretion to impose a fine or a fully suspended sentence judicially.

[6]

Appellants plea explanation reads:

____________________________________________________________________ STATEMENT IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT ________________________________________________________________________ I, the undersigned KEITH DUVEGE DUVENHAGE do hereby state in terms of the aforesaid section as follows: 1. I am the Accused in the above matter. 2. I am being charged with: The crime of Culpable Homicide in that it is alleged that upon or about the 29th day of November 2007 and at or near Otjiwarongo in the district of Otjiwarongo I did wrongfully and unlawfully drive a motorcycle with registration number N 111197 W on a public road to wit Otjiwarongo Kalkfeld Main Road and did unlawfully and negligently kill a human being, to wit Charlene Kesslau.

3. I plead guilty to the charge. I admit the following facts and tender my plea of guilty of the basis thereof: 3.1 I admit that on 29 November 2007 I was at or near Otjiwarongo in the district of Otjiwarongo. 3.2 I admit that on or about the Otjiwarongo, Kalkfeld Main Road, I was the driver of the motorcycle with registration number N 111197 W. 3.3 I admit that due to my negligence, the said motorcycle collided with the barrier on the side of the road and overturned. 3.4 I admit that I was negligent in that I drove too fast in the prevailing circumstances and lost control over the motorcycle which then collided with the barrier of the road and Charlene Kesslau fell off the said motorcycle. 3.5 I admit that due as a result of my aforesaid negligence, Charlene Kesslau died of severe multiple internal organ damage. 3.6 I admit that I knew at the time of my action that such action was wrongful and unlawful and punishable by law. 4. In view of the foregoing I plead guilty to the crime as alleged in the charge sheet.

[7]

In my view the sentence imposed by the learned Magistrate is in

appropriate in the sense that although death has resulted, he did not seriously look into the appellants personal circumstances such as his age at the time of the offence, a first offender, the degree of his blame worthiness and the fact that his leg was amputated as a result of the accident. In the plea explanation the cause of the accident was

described as follows:
3.3 I admit that due to my negligence, the said motorcycle collided with the barrier on the side of the road and overturned.

3.4

I admit that I was negligent in that I drove too fast in the prevailing circumstances and lost control over the motorcycle which then collided with the barrier of the road and Charlene Kesslau fell off the said motorcycle.

my own underlining.

Although the words too fast could be understood to mean exactly what they say, they cannot be measured or be understood to represent a specific speedometer reading, for example 120 kilometers per hour or so. They cannot be rated in excess of a specific speed limit required in a given area on our national roads. In his reasons for sentence the learned Magistrate only refers to the offence as being very serious, a life of a human being was lost due to the accuseds negligence. He did not

elaborate more to give an indication why in his opinion an option of a fine was not appropriate as suggested by the Public Prosecutor. Ms.

Esterhuizen stated that negligent driving where death has ensued is a serious offence for which a custodial sentence may be imposed. However, it is my considered view that, it should be done by appropriately taking all the surrounding circumstances and most importantly the accuseds degree of culpability. The extent to which the accused has deviated from what a reasonable person finding himself in the similar situation would have done also comes into play.

[8]

Ms. Esterhuizen quoted the following authorities: S v Sikhakhane

1992(1) SACR 783(N) where the appellant swung at a high speed from his

lane in order to overtake; S v Nyathi 2005(2) SACR 273 (SCA) where the accused overtook on a double barrier line killing six people; S v Chretien 1979(4) SA 781 (1) the accused drove into a group of people gathered on the street whose presence he was aware of. It is my considered view that in all the above cases, custodial sentences were appropriately imposed. The reason being the presence of clearly stated high degrees of blame worthiness in the manner in which the above accidents were caused as well as the consequences that followed.

[9]

In my view although death has also ensued in this matter the level

of culpability cannot be equaled to the one stated in the above cases. Factors such as that the appellant pleaded guilty, is a first offender with no criminal record, will in all probability lose his employment as a result of the custodial sentence, that the appellant himself suffered a severe injury resulting in the amputation of his leg, was hospitalized for quite a long time incurring financial loses, and was in a position to pay a fine, cannot be disregarded. In my view, the cumulative effect of these factors clearly shows that the learned Magistrate has indeed misdirected himself when he imposed a direct custodial sentence in the face of other various sentencing options available to him.

[10]

In S v Nxumalo 1982(3) SA 856 AD 861 G-H, Corbett, JA stated:

It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blame worthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blame worthiness would be the extent of the accuseds deviation from the norms of reasonable conduct in the circumstances and the foresee ability of the consequences of the accuseds negligence. At the same time the actual consequences of the accuseds negligence cannot be disregarded.

[11]

Mr. Botes argued on behalf of the appellant that death in a

negligent action alone cannot be concluded to warrant a custodial sentence. According to him if regard is had to the fact that the learned Magistrate did not give further reasons when the notice of appeal was noted the sentence of ten months imposed on the appellant is therefore not appropriate. In support of his argument he referred quite correctly in my view to the case of S v Van der Merwe 1992(1) SACR 48. [12] In his reasons for sentence the learned Magistrate stated that

human life is irreplaceable. I am in agreement with this fact. However, that alone does not warrant the imposition of a custodial sentence without an option of a fine. [13] A full bench in this Court in S v Van der Merwe 1982(1) SACR 48

(NM) 51 B-C, Strydom, JP as he then was stated:

Whatever the result of the negligent act or omission, the fact remains that what the accused person in such a case is guilty of is negligence the failure to take reasonable and proper care in given circumstances. His negligence may be slight and yet may have the most calamitous consequences, or it may be gross and yet be almost providently harmless in the result. I venture to suggest that the basic measure for determining fit punishment for a negligent motorist must be the degree of his culpability or blame worthiness.

[14]

Further down the same page at paragraph d-e, the Court said:
direct imprisonment is reserved for a case where there is a high degree of negligence or recklessness.

In the light of the above considerations we found that there was indeed a misdirection warranting our intervention and the sentence imposed by the learned Magistrate was accordingly interfered with.

10

_________________ SIBOLEKA J

I agree.

_________________ NDAUENDAPO J

ON BEHALF OF THE APPELLANTS: INSTRUCTED BY:

MR. BOTES

ENGLING, STRITTER & PARTNERS

ON BEHALF OF THE RESPONDENT: INSTRUCTED BY:

ADV. ESTERHUIZEN

THE OFFICE OF THE PROSECUTOR-GENERAL

11