Reportable
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 561/98
In the matter between:
ALLEN DAVID BIRKENFIELD
Appellant
and
THE STATE
Respondent
CORAM :
SCHUTZ, STREICHER JJA, MELUNSKY AJA
HEARD :
20 MARCH 2000
DELIVERED :
27 MARCH 2000
JUDGMENT
Criminal law - Culpable homicide arising out of traffic accident - Sentence -
Subsequent facts generally excluded - Correctional supervision in terms of section
276(1)(i) of Criminal Procedure Act.
MELUNSKY AJA

MELUNSKY AJA:
[1] This is an appeal against the sentence imposed on the appellant pursuant to
his conviction for culpable homicide in the Magistrate's Court, Kempton Park.  The
magistrate sentenced the appellant to five years' imprisonment subject to the
provisions of s 276(1)(i) of the Criminal Procedure Act, 55 of 1977.  The sentence
was reduced to three years' imprisonment subject to the same provisions on appeal
to the Transvaal Provincial Division of the High Court (Marais and Snyders JJ),
which granted the appellant leave to appeal to this Court.
[2] The facts giving rise to the conviction can be stated briefly.  The appellant
drove a motor cycle from west to east in Olienhout Street, Kempton Park on the
night of 12 May 1996.  A young woman, Sally Clifford, was a passenger 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 motor cycle proceeded beyond the intersection and
the passenger fell onto the road.  About seventy to eighty metres east of the
intersection the motor cycle collided with a tree.  As a result of the aforegoing the
pedestrian and the passenger were killed outright, the appellant sustained serious
injuries and the motor cycle was effectively destroyed.
[3] Olienhout Street is a straight road in a built-up area.  The intersection with
Maroela Street is well lit and the light of the motor cycle was on.  It is not disputed
that the appellant could and should have seen the pedestrian.  It is also clear that
had he stopped at the stop sign, as he was obliged to do, he would not have
collided with Mr Malope.  The evidence discloses, moreover, that the appellant
travelled at a speed that was greatly excessive in the circumstances and that he had
also failed to stop at an intersection immediately west of the Maroela Street
crossing.
[4] It is not absolutely certain why Miss Clifford fell from the motor cycle but

it seems to be obvious that this was due either to the impact with the pedestrian or
to the appellant's inability to control the vehicle properly immediately after the first
collision.   Miss Clifford was not wearing a helmet but there is no evidence which
establishes that she would have survived had she worn some form of protective
headgear.
[5] The appellant suffered from amnesia as a result of his injuries and had no
recollection of driving the motor cycle on the night in question.  There is no doubt,
however, that he drove in a manner that was grossly negligent, if not reckless.  This
was also the view of the magistrate.  At the trial it was suggested by the appellant
and one of his witnesses that some fault in the motor cycle might have contributed
to the collision and that this would reduce the degree of his culpability.  The
evidence in this regard was purely speculative and was unsupported by any facts.
Although there was no onus on the appellant to prove the truth of an exculpatory
theory, it is quite insufficient to put forward a conjectural hypothesis without

providing some factual basis therefore (cf. R v Apter 1941 OPD 161 at 178).  The
possibility of a mechanical defect as a contributory cause can, therefore, be ignored
and was correctly not persisted in during argument in this Court.
[6] The appellant was twenty four years old when sentence was imposed in
1997.  He was employed as a spray painter and was in a stable relationship with a
woman.  He has a previous conviction for driving under the influence of alcohol for
which he received a non-custodial sentence in 1994.  At the hearing of the appeal,
application was made on the appellant's behalf for the admission of an affidavit
which disclosed that since the imposition of sentence the appellant had married, that
his wife was pregnant and that he had started his own spray painting business with
thirteen people on the payroll.  The general rule, as Corbett JA emphasised in S v
Immelman 1978 (3) SA 726 (A) at 730H, is that a court of appeal must decide the
question of sentence according to the facts in existence at the time when sentence
was imposed and not according to new circumstances which come into existence

afterwards.  This rule has been consistently applied - see S v Marx 1992 (2) SACR
567 (A) at 573i-574a.  It is not necessary to decide whether there may be
exceptions to the rule, as very little was said on the appellant's behalf in support of
the contention that an exception should be made in this appeal.  In any event, the
new facts on which the appellant seems to rely would not, if admitted, make any
difference to the outcome of the appeal.
[7] The court a quo reduced the sentence imposed by the magistrate because
it considered that he had failed to place sufficient weight on the rehabilitative aspect
of punishment.  In this court it was submitted that the court a quo, too, had failed
to have sufficient regard to the rehabilitation of the appellant.  This submission is
not persuasive.  Rehabilitation of the offender is only one of the factors that comes
into play in the imposition of sentence.  The court a quo was keenly aware of the
need to have due regard to the appellant's rehabilitation and it properly took this
factor into account.  Indeed, this is precisely why the sentence was reduced.

[8] The substance of the argument advanced on the appellant's behalf was that
the sentence imposed on the appellant was unduly harsh and that this court should
impose a substantial fine coupled with a wholly suspended sentence of
imprisonment.  It is hardly necessary to point out that a court of appeal will interfere
with a sentence on the grounds that it is excessive only if there is a striking disparity
between the sentence imposed and a sentence which this court considers to be
reasonable.  In order to decide this issue it becomes necessary to weigh up the
factors personal to the appellant, the nature and circumstances of the offence and
the requirements of society.  To the appellant's personal circumstances outlined
above there may be added the serious injuries which he sustained and the permanent
disablement arising therefrom which will operate as a constant reminder to him of
the danger of driving in a grossly negligent manner.  On the other hand, it may be
noted that not only did the appellant plead not guilty but he persistently refused to
accept that he was the driver of the motor cycle, despite the clear evidence which

established that he was.  The submission that the appellant was genuinely
remorseful should, in my view, be considered in the light of these facts.
[9] The offence was a serious one.  The appellant clearly had no concern for the
safety of his passenger and the pedestrian with whom he collided.  He disregarded
the elementary rules of the road and it was almost inevitable that his manner of
driving would have tragic consequences.  A measure of the appellant's careless, if
not irresponsible, attitude to the driving of a motor cycle, which may properly be
taken into account in this appeal, was the conveyance of a passenger who was not
wearing a helmet.  The loss of life that ensued may also be taken into account not
for its punitive effect but for its deterrent effect and as a warning to motorists that
negligent driving might result in severe penalties, especially when it causes the death
of innocent persons ( see The State v Ngcobo 1962 (2) SA 333 (N) at 337A-B;  S
v Greyling 1990 (1) SACR 49 (A) at 56d-e).  Society, too, expects the courts to
protect innocent users of the road by imposing appropriately severe sentences on

offenders who drive grossly negligently or recklessly.  All of these factors point to
the inevitable fact that imprisonment is a proper sentence, despite the fact that the
appellant is a productive member of society.
[10] It was not argued on the appellant's behalf that the period of imprisonment
was unduly lengthy.  Nor could such a submission prevail.  The period of three
years was subject to the provisions of s 276(1)(i) of the Criminal Procedure Act.
This provides for
“imprisonment from which ... a person may be placed under
correctional supervision in his discretion by the Commissioner [of
Correctional Services].”
In the heads of argument filed on the appellant's behalf (by counsel who did not
appear at the trial), it was submitted that the appellant's rights to be placed under
correctional supervision were greatly curtailed.  In this regard reference was made
to the following obiter passage in Roman v Williams NO 1998 (1) SA 270 (C) at
283H-I:

“It is important to note firstly that a convict who has been sentenced
to imprisonment in terms of s 276(1)(i) of the CPA [the Criminal
Procedure Act] has no statutory right to be placed under correctional
supervision.  He is not even entitled to apply for a hearing to this end.
He has no more rights than any other prisoner has in regard to parole
for instance.”
It is not quite clear what was intended by the second and third sentences of the
above-quoted passage.  If it was intended to convey that the Commissioner is not
obliged to consider placing the person concerned under correctional supervision
it is clearly wrong for, if a court imposes a sentence in terms of s 276(1)(i), the
Commissioner is obliged to consider whether or not to place the person under
correctional supervision.  This requires him to have regard to the relevant
circumstances and to exercise a proper discretion.  The appellant retains the right
to call upon the Commissioner to exercise his discretion but it is not necessary, for
present purposes, to decide what procedures the Commissioner needs to follow
or whether a convicted person is entitled to be heard.

[11] The sentence imposed by the court a quo amounts to a substantial
punishment.  It involves imprisonment for a period, not exceeding three years,
subject to the Commissioner's discretion to place the appellant under correctisonal
supervision.  During the period of correctional supervision the appellant's rights of
movement and association will probably be restricted.  However this may be,
nothing was said by the attorney who represented the appellant at the appeal which
persuades us that the sentence was excessive to such a degree that this Court
should interfere.  On the contrary the sentence is well within reasonable limits.
[12] It follows that the appeal should be dismissed.
.............................
L S MELUNSKY
ACTING JUDGE OF APPEAL
Concur :
SCHUTZ
JA
STREICHER    JA