DURBAN: 211013 Robert Gilmore appeared at the Durban Magistrate Court for drunken driving.

Durban - Tears streamed down the face of Amanzimtoti mom Suzette Ratcliffe as pensioner Robert Gilmore was found to have caused the accident in which her 3-year-old son was killed. Gilmore was convicted of culpable homicide and drunk driving.

“I am so grateful that the magistrate was with us because he (Gilmore) has refused to accept responsibility all along,” she said. “He has blamed everyone else except himself.”

Ratcliffe said she and her family, including William’s younger brother, James, were still in the infancy of their grieving process and were “stuck in that day” two years ago when William died.

She was now preparing a victim impact statement to be submitted to Durban Regional Court magistrate Phumi Shoba when she sentences Gilmore at the end of September.

Then, Ratcliffe says, she hopes to get a “full stop”.

Gilmore pleaded not guilty to murder, attempted murder and reckless and drunk driving charges which related to the accident in Amanzimtoti in August 2012.

Delivering judgment on Wednesday, the magistrate said the state had not proved “intention”, necessary for a verdict of murder, but she found him guilty of the alternative offence of culpable homicide.

Ratcliffe, in her evidence, had claimed that Gilmore had turned in front of her at an intersection and she had no choice but to collide with his beach buggy.

Gilmore claimed he had turned when it was safe, but had to stop for pedestrians and Ratcliffe had been travelling at speed.

But the magistrate found that he had caused the accident by entering the intersection when it was unsafe.

She said while it had been suggested by the defence that William had been seated in the front passenger seat and the cause of death was the seatbelt and deployed airbag, no evidence was ever led in that regard.

“But for the accused’s negligent driving, the child would not have died. It could be that by seating William in the front seat, it could have contributed to the severity of his injuries. But contributory negligence is not an excuse in a charge of culpable homicide.”

Shoba said the charges of attempted murder and reckless driving fell away because of this conviction.

But convicting him of a charge of driving under the influence of alcohol, she said there had been many witnesses who had given evidence that Gilmore smelt of alcohol and was swaying.

In his own version, he had been drinking that day.

Shoba said his blood alcohol level more than two hours after the accident had been recorded as 0.17, and a doctor had testified that it was probably as high as 0.21 at the time of the accident.

“It was suggested that the accused was suffering from shock but the witnesses said this was not so. There was also evidence that the accused takes epilepsy medication which effects the central nervous system.”

She said there was evidence that Gilmore was a regular drinker who often went to bars and it was clear that on that day his judgment had been impaired.

Acquitting him of another charge of failing to perform his duties as a driver, Shoba said while he had walked away from the “hostile” scene, by that time paramedics were there and were attending to William “so there was nothing more he could do”.

Prosecutor Barend Groen told the court that Gilmore had a previous conviction for drunk and reckless driving dating back to 1996 when he was given a fine and suspended sentence.

The matter was adjourned for correctional supervision, social worker and victim impacts reports. The magistrate extended Gilmore’s bail but ordered that he not drive any vehicle.

The Mercury