Court of Appeal
Criminal Appeal No. 8 of 1993
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. Eamon Courtenay, for the Appellant
Mr. L. Sooknandan for the Respondent

Criminal Law - Manslaughter by negligence - Causing death by careless driving - Guilty plea - Sentencing - section 156(2) of the Indictable Procedure Act Cap. 93 - Trial judge erred in interpretation of section 156(2) - Whether sentence manifestly excessive - Maximum sentence for manslaughter 5 years - Appellant a first offender with clean driving record - Sentence of 3 years excessive - Sentence of 9 months appropriate - Appeal allowed - Sentence quashed.

J U D G M E N T

The Appellant was charged on an indictment containing four counts of manslaughter by negligence and four counts of causing death by careless driving. He pleaded guilty to the four counts of manslaughter by negligence and the alternative counts of causing death by careless driving were withdrawn. He was sentenced to 3 years imprisonment against which sentence he has appealed.

The accident which caused the deaths, the subject matter of the charges, had taken place at about 7:00 p.m. on February 23, 1992 at Succotz Village, between the 82 mile post and the 83 mile post on the Western Highway Cayo. On the side of the road at the point of the accident is a church. In front of the church is a bridge which serves as a walkway over a drain. Four children were sitting on the bridge. Cedie Castellanos, 1 year 8 months old had become restless in church and her elder sister Celita aged 12 had taken her out. Two other children Nady Nevette Chi aged 10 and Shirley Chi aged 8 had joined them.

Whilst sitting there they were struck by a car which the defendant was driving from the direction of Benque Viejo. The baby, Cedie, was thrown 14 feet from the bridge; Celita was thrown 60 feet, and Nady Nevette Chi 24 feet, The car continued for some 284' beyond die bridge, struck a coconut tree in a plantation abutting the road and burst into flames. Worshippers from the Church helped the Appellant and a female passenger from the car.

The physical evidence supports the inference that the Appellant immediately before the accident had been driving at a very high rate of speed and that he had lost control of the car. He alleged that there had been some mechanical failure.

The vehicles inspector reported that the tie rods and ball joints were in order. These are parts most directly related to the steering mechanism.

The Appellant had no previous convictions and apparently a clean driving record. His plea of guilty to the charges saved time and spared the families of the victims the anguish of a trial. His lawyer, on his behalf, expressed his regret and remorse at the loss and grief his actions had caused and there can be no reason to doubt this.

The first issue to be decided is the proper approach to sentencing in such a case having regard to section 156(2) of the Indictable, Procedure Act Cap. 93. This reads

"(2) If a person by one act assaults, harms or kills several persons or in any manner causes injury to several persons or things, he shall be punishable only in respect of one of the persons so assaulted, harmed or killed, or of the persons or things to which injury is so caused, but in awarding punishment the court may take into consideration all the intended or probable consequences of the crime."

The trial judge interpreted this section thus -

"What this is saying, is that you cannot be sentenced to prison consecutively for each of the crime to which you have pleaded guilty. You can be sentenced to one, all as a consequence of the one act which in this case caused the death of four children."

If by this the trial judge is to be taken as understanding that the section does no more than prohibit the imposition of consecutive sentences in the circumstances which it describes, then he has fallen into error. In the ordinary case in which concurrent sentences are imposed in respect of several offences which are tried together and each of which arises from a separate act, the sentencer assesses the overall gravity of the series of offences, arrives at an appropriate sentence and imposes that sentence in respect of each offence. This process involves imposing a penalty in respect of each offence since the overall sentence is increased by reason of its being taken into account in arriving at the heavier sentence assessed for all the concurrent offences.

Section 156(2) requires, however, that attention be focused on the single act underlying all the crimes but bearing in mind all the intended or probable consequences of that act. In this case that act is driving along that stretch of highway at such a speed that one loses control of the vehicle and runs off the highway. The locale is described as a village and the time about 7:00 p.m. on a Sunday night. There is a real likelihood that there would be persons about who could be struck and killed by a vehicle thus driven. It is a probable consequence although there is no evidence that there was any person around other than the children on the bridge.

Accordingly we find that the trial judge erred in his interpretation of section 156(2) of the Indictable Procedure Act. This error in principle would make the sentence open to review.

The second issue is whether in all the circumstances the sentence was manifestly excessive.

The maximum sentence which can be imposed for manslaughter by negligence is 5 years. Considering that the Appellant was a first offender with a clean driving record who had pleaded guilty the sentence of 3 years seems at first blush somewhat high. It represents a discount of less than 50% of the maximum which could be imposed, the maximum being clearly intended for the worst possible case. If presenting the facts to the court, the prosecution did not state that there was any evidence that drink was a factor.

Clearly the trial judge was determined to send out an unmistakable message that causing death by negligence was a serious offence and would be severely punished. This was a proper attitude. At the same time the circumstances of the particular offender and of the offence had to be borne in mind. The negligent act was speeding. The offender was a remorseful first offender who had pleaded guilty. The imposing of a prison sentence by itself is an unmistakable message that the courts are taking a serious view.

At our request counsel prepared a record of sentences imposed in cases in which defendants appeared to answer charges arising from road deaths resulting from motor vehicle accidents since 1990. In all of dip cases two charges were laid - manslaughter by negligence and causing death by careless driving. In all the cases but one the defendant was either convicted or pleaded guilty to causing death by careless conduct. In none of these cases was a prison sentence imposed. In the one case where there was a conviction for causing death by negligence - Rafael Guerra decided at the sessions held on June 18, 1991 - was a sentence of imprisonment imposed. The sentence was one of 18 months. As in this case the negligence was excessive speed. One person was killed. The defendant did not stop. He pleaded not guilty and was found guilty after a trial. In that case as in this the act and its probable consequences were the same. Giving due allowance to the plea of guilty, the absence of previous convictions and the expressed remorse a sentence of 9 months imprisonment seems appropriate in this case.

Accordingly the appeal is allowed, the sentence quashed and a sentence of 9 months imprisonment substituted. In addition the Appellant's driving permit will be suspended for a period of 5 years from the date of his conviction.

For the guidance of trial judges in future where similar situations arise the proper course in sentencing would be to impose sentence in respect of only one count and note that by reason of the provisions of section 156(2) of the Criminal Procedure Code no sentence is imposed in relation to all the other counts.

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