Allen David Birkenfield v The State

On the night of 12 May 1996, the appellant drove a motorcycle from west to east in Olienhout Street, Kempton Park, with a passenger, Sally Clifford, on the pillion seat. The appellant entered the intersection of Olienhout and Maroela Streets without stopping at a stop sign and collided with a pedestrian, Lesiba Malope, who was in the intersection. The motorcycle proceeded beyond the intersection and the passenger fell onto the road. About 70-80 metres east of the intersection, the motorcycle collided with a tree. Both the pedestrian and the passenger were killed outright, and the appellant sustained serious injuries. The intersection was well lit and the appellant could and should have seen the pedestrian. The appellant travelled at greatly excessive speed and had failed to stop at an intersection immediately west of the Maroela Street crossing. The appellant suffered amnesia due to his injuries and had no recollection of driving the motorcycle. The appellant was 24 years old at sentencing in 1997, employed as a spray painter, and had a previous conviction for driving under the influence of alcohol in 1994. The Magistrate's Court convicted him of culpable homicide and sentenced him to five years' imprisonment subject to s 276(1)(i) of the Criminal Procedure Act. On appeal to the High Court, the sentence was reduced to three years' imprisonment subject to the same provisions.

• Whether the sentence imposed on the appellant for culpable homicide was excessive and constituted a striking disparity from what would be reasonable
• Whether subsequent facts arising after the imposition of sentence should be admitted on appeal
• The proper interpretation and application of correctional supervision under s 276(1)(i) of the Criminal Procedure Act 55 of 1977
• The appropriate weight to be given to rehabilitation versus other sentencing considerations in cases of culpable homicide arising from grossly negligent driving

The appeal against sentence was dismissed. The sentence of three years' imprisonment subject to the provisions of s 276(1)(i) of the Criminal Procedure Act, 55 of 1977 (correctional supervision) was upheld.

The binding legal principles established are: (1) An appellate court will only interfere with a sentence on grounds of excessiveness if there is a striking disparity between the sentence imposed and what the appellate court considers reasonable; (2) The general rule is that a court of appeal must decide the question of sentence according to facts in existence at the time sentence was imposed, not according to new circumstances arising afterwards (following S v Immelman 1978 (3) SA 726 (A)); (3) When imposing sentence, courts must weigh factors personal to the offender, the nature and circumstances of the offence, and the requirements of society; (4) Rehabilitation of the offender is only one factor in sentencing and must be balanced against other considerations; (5) In culpable homicide cases arising from grossly negligent driving, the loss of life may be taken into account for its deterrent effect and as a warning to motorists, not merely for punitive purposes (following The State v Ngcobo 1962 (2) SA 333 (N) and S v Greyling 1990 (1) SACR 49 (A)); (6) When a court imposes a sentence under s 276(1)(i) of the Criminal Procedure Act, the Commissioner of Correctional Services is obliged to consider whether to place the person under correctional supervision and must exercise a proper discretion in doing so.

The Court made non-binding observations on several matters: (1) It noted that it was not necessary to decide whether there may be exceptions to the general rule excluding subsequent facts on appeal, as little was said in support of such an exception and the new facts would not have made a difference in any event; (2) The Court noted that the procedures the Commissioner must follow in exercising discretion under s 276(1)(i), and whether a convicted person is entitled to be heard, did not need to be decided for present purposes; (3) The Court commented that a measure of the appellant's careless attitude was the conveyance of a passenger not wearing a helmet, though there was no evidence she would have survived with protective headgear; (4) The Court observed that the submission regarding the appellant's genuine remorse should be considered in light of his persistent refusal to accept he was the driver despite clear evidence; (5) The Court noted it was "hardly necessary to point out" the standard for appellate interference with sentences, suggesting this is well-established law; (6) The Court criticized certain obiter statements in Roman v Williams NO 1998 (1) SA 270 (C) regarding the rights of persons sentenced under s 276(1)(i), stating that if the passage meant the Commissioner is not obliged to consider placement under correctional supervision, "it is clearly wrong."

This case is significant in South African criminal law for several reasons: (1) It provides guidance on sentencing principles in culpable homicide cases arising from grossly negligent driving, particularly where multiple deaths result; (2) It reinforces the general rule that appellate courts should not consider facts arising after the imposition of sentence when determining whether a sentence is appropriate; (3) It clarifies the operation of s 276(1)(i) of the Criminal Procedure Act regarding correctional supervision, particularly that the Commissioner of Correctional Services is obliged to exercise a discretion to consider placing a convicted person under correctional supervision, even though there is no statutory right to such placement; (4) It demonstrates the balancing of sentencing factors including rehabilitation, deterrence, protection of society, and the seriousness of the offence; (5) It emphasizes that loss of life in driving offences may be taken into account not for punitive effect but for deterrent effect and as a warning to motorists.