Iuze Mukube
A resident of Rehoboth is challenging a six-month direct term of imprisonment on a charge of contravening section 82(5)(a) of the Road Traffic and Transport Act 22 of 1999 in the Windhoek High Court.
The subsection prohibits driving on a public road with an excessive concentration of alcohol in an individual’s breath.
Angelo van Wyk was charged and convicted on 11 May in the Rehoboth Magistrate’s Court after pleading guilty to a charge of driving with an excessive breath alcohol level.
He was sentenced to 18-months imprisonment of which 12-months was suspended for five years.
Van Wyk was also disqualified from obtaining a driver’s licence or a duplicate for a period of not less than one year.
Van Wyk is challenging the six-month direct imprisonment sentence, arguing that it is disproportionate to the circumstances of the offence and the appellant.
According to the court documents, he pleaded guilty to the charge on 9 May.
He stated that he swerved in front of a taxi at a roadblock and drove past the police, who followed and stopped him.
He was subjected to a breathalyser test and taken to the police station for a further test within two hours.
His breath alcohol level was recorded at 1.02, exceeding the prescribed legal limit of 0.37.
He also informed the court that he did not have a valid driver’s licence.
During mitigation, he informed the court that he was 40-years old, unmarried, unemployed and responsible for carrying for his elderly grandmother and two minor children.
Hence, he requested for the court not to impose a prison sentence or disqualify him from applying for a driver’s licence.
He argues that the court should have considered whether the alcohol impaired his driving ability and to what extent.
He submitted that “the mere driving of a motor vehicle with an excessive breath alcohol level and in the absence of evidence as to whether his driving skills were impaired and that he was a danger to other road-users, does not justify a sentence of direct imprisonment.”
He also submitted that the sentence of six-month direct imprisonment was too harsh and that the magistrate failed to properly balance the seriousness of the offence, his personal circumstances and society’s interests.
Van Wyk argues that there were no aggravating circumstances beyond his previous conviction for a similar offence in 2023, to justify the imposition.
He contends further that there was no accident, injury, property damage or evidence of reckless driving.
The appellant added that the State did not prove that his ability to drive was impaired by alcohol.
He further argued that the magistrate failed to consider his guilty plea, the period that had passed since his previous conviction and his personal circumstances.
He also pointed out that the State had proposed a fine of N$17 000 or 12 month’s imprisonment, rather than direct imprisonment as imposed by the court.
He is asking the appeal court to set aside the disproportionate six-month prison term with a suitable sentence “in the form of a fine coupled with a wholly suspended term of imprisonment.
Van Wyk is represented by Willem Christians and the State by Sakaria Kuutondokwa. -imukube@nepc.com.na
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