DRIVING WITH EXCESSIVE CONCENTRATION OF ALCOHOL IN BLOOD – SENTENCE

S v BRINK 2018 (2) SACR 6 (WCC)

 

Traffic offences — Driving with excessive concentration of alcohol in blood — Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996 — Sentence — Suspension of driver’s licence — Circumstances to be taken into account — Includes personal circumstances of accused.

Traffic offences — Driving with excessive concentration of alcohol in blood — Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996 — Sentence — Previous convictions — Proof of — Insufficient for court to rely solely on evidence of accused.

Traffic offences — Driving with excessive concentration of alcohol in blood — Contravention of s 65(2)(a) of National Road Traffic Act 93 of 1996 — Sentence — Previous convictions — Determination of whether offence was first, second or third offence for purposes of s 35(1) — Relevant question was whether offence fell under ss 35(1)(a), (aA), (b) and (c) and not whether it fell under identical statutory provision.

 

The appellant was convicted in a magistrates’ court on his plea of guilty in terms of s 105A of the Criminal Procedure Act 51 of 1977, to a charge of driving a motor vehicle whilst the concentration of alcohol in his blood exceeded 0,05 grams per 100 millilitres, in contravention of s 65(2)(a) of the National Road Traffic Act 93 of 1996 (the Act). A previous conviction of contravening s 65(1)(a) of the Act in 2009 was proved and, whilst being questioned by the magistrate, the appellant admitted that he had been convicted of a further offence of contravening s 65(2)(a), although the precise details of this offence were not ascertained. He admitted that, in respect of the current offence, he was driving without a licence, his licence having been suspended in 2015 until 2020. The magistrate, taking the two previous convictions into account, sentenced him to the fine agreed upon in terms of s 105A, but suspended his licence for a period of 10 years. On appeal the court was required to consider the magistrate’s approach to the interpretation of the mandatory minimum suspension provisions in s 35(1) of the Act.

Held, that when determining whether an offence was a first, second or third offence for the purposes of s 35(1), the relevant question was whether the offence fell under ss 35(1)(a)(aA)(b) and (c), and not whether it fell under an identical statutory provision. On this approach an offence qualified as a second or third offence for the purposes of ss 35(1)(ii) and (iii) if it were listed under the same subsection or category as the previous conviction. This interpretation honoured the text and promoted the clear purpose of the provision, namely to protect the public from road users posing a risk because they had a tendency for certain dangerous conduct.

Held, further, that the 2009 conviction, although for a different statutory offence, was relevant and had to be counted as a first offence. (See [41].)

Held, further, that it was insufficient as a matter of principle for a court to rely solely on the evidence given by a convicted person regarding his or her previous convictions for the purposes of applying the mandatory minimum suspension periods referred to in s 35(1). In any event, in the present case the appellant’s evidence regarding the conviction in 2015 could hardly be regarded as sufficiently clear and satisfactory to constitute proof beyond a reasonable doubt. (See [47] – [49].)

Held, further, that the words ‘circumstances relating to the offence’ in s 35(3) of the Act were not limited to circumstances which could properly and rationally be said to relate to the offence, and included the traditional sentencing factors, such as the personal circumstances of the accused. (See [57].)

The appellant’s sentence accordingly had to be altered by reducing the period of suspension of his licence to five years.

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