DPP v Lepore [2000] VSCA 195

DPP v Lepore [2000] VSCA 195 - VSCA 2000 case summary — Zoe

[23]

The learned judge directed (unusually) that six months of the sentence imposed on count 2 be served cumulatively upon six months of the sentence the respondent was then undergoing. That was intended to produce an effective sentence imposed by the judge of twelve months' imprisonment. Her Honour initially, on 11 February, purported under s.14 of the Sentencing Act 1991 to fix a new minimum term for all sentences imposed on the respondent (in the Magistrates' Court and in the County Court) of six months commencing on 26 April 2000. Her Honour evidently later realized that the minimum term so pronounced was irregular, for the case was re-listed for 18 February. On that day, in the presence of the respondent and his counsel, the judge pronounced, or purported to pronounce, a fresh or amended sentence with respect to Count 2 and a new minimum term for all sentences that the respondent was required to serve. As endorsed on the back of the presentment, the pronouncements made on 18 February (so far as now relevant) were as follows - "Count 2 now reads - Sentenced to twelve months' imprisonment six months of which is to be served cumulatively on the sentence of imprisonment presently being served." ... "Total effective sentence now reads - T.E.S. is twelve months. Pursuant to s.14 of the Sentencing Act 1991 fix a new minimum non-parole period of eight months 15 days the prisoner being eligible for parole on 26 October 2000". It is not clear on the available material why the judge had purported initially to select 26 April 2000 as the day from which a new non-parole period should run. Perhaps it was because that was six months from the day on which the last sentence imposed in the Magistrates' Court began to run; but, if so, the significance of that fact is itself not immediately evident. As the judge ultimately realized, the minimum term as pronounced on 11 February would have left the sentences imposed in the County Court and in the Magistrates' Court subject to no minimum term during the period from 11 February to 26 April 2000 - a period of some two months and 15 days. The judge purported to overcome the problem by extending the duration of the minimum term by an equal period. Nor is it clear under what authority her Honour purported to act on 18 February, in particular to pronounce a non-parole period different from that pronounced a week earlier. Perhaps the judge thought that there was no difference in effect between the two pronouncements, inasmuch as each intended that the respondent should not become eligible for release on parole before 26 October 2000, and regarded s.104A of the Sentencing Act 1991 as authorizing the course that was taken. The fact nevertheless remains that, as the learned judge recognised and intended, the pronouncement on 18 February purported to lengthen the non-parole period by two months and 15 days or thereabouts.

[32]

The offence of driving while disqualified from obtaining a licence to do so (the subject of the first summary charge) was in the circumstances to be properly regarded also as a serious example of its kind, by reason especially of the respondent's persistent repetition of it. The respondent admitted seven prior convictions for the same offence, having been disqualified on no less than five occasions from obtaining a licence. His driving on 13 August last year, by itself, in the light of that antecedent criminal conduct, manifested "a continuing attitude of disobedience to the law" of which the High Court spoke in Veen v. The Queen (No. 2)[1]. It thus attracted for particular added consideration, as ingredients going to the sentencing discretion, moral culpability, prospects of rehabilitation, protection of the community and the need for specific deterrence.[2] In my opinion the sentence for that offence, too, ought to have been the subject of some cumulation. The Road Safety Act is obviously designed to ensure, so far as may be, that those who drive motor vehicles on the highway have sufficient qualification for the task to earn a licence to do so; and that those who do not have sufficient qualification do not drive. The imposition on the respondent of previous disqualifications from obtaining a licence are no doubt to be seen as akin to penalties and punishment; but they may very well reflect, and I should be prepared to assume that to some extent they probably do reflect, his lack of proficiency and hence a lack of qualification to obtain one. For the offence of driving while disqualified from obtaining a licence the respondent was sentenced on 27 July 1995 (three charges), on 15 July 1997 (two charges) and on 17 April 1998 (2 charges). For these offences he received sentences of imprisonment, on the first occasion for three months, wholly suspended for 12 months, on the second for two months and on the third for three months. The sentence in the County Court of imprisonment for six months for the offence was, in my opinion, not inappropriate but, having regard to the antecedents, it was also appropriate that some part of the sentence be actually served. Anything less would, in my opinion, tend seriously to undervalue the ingredient of specific deterrence that the sentence should reflect. It is right that flagrant disregard of one of the consequences of an order of disqualification - the prohibition from driving - should be visited with stern recognition rather than the resignation that a sentence to be served wholly concurrently with others might tend to suggest.

[33]

No error was alleged by the appellant in the sentences for summary charges 2, 3 and 4 and those sentences should stand. I propose, however, that the other sentences should be set aside and that different sentences be substituted. Before indicating the new sentences that I propose, I shall refer to the matter of the respondent's disqualification from obtaining a driving licence. Counsel for the appellant submitted that, in the circumstances, the judge's imposition of a two-year period of disqualification under s.61(6) of the Road Safety Act (the minimum period of disqualification permissible under that provision) was inappropriate. It has been said that a disqualification of that kind represents a penalty and that power to impose it must be exercised with that in mind: Fox and Freiberg, Sentencing, State and Federal Law in Victoria, 2nd ed., par 6.511, and the cases there cited. Correspondingly, on an appeal against sentence, any period of disqualification is not to be overlooked in considering whether the overall penalty imposed is manifestly excessive - or, presumably, inadequate: a period of disqualification "should, when considered with the other penalties imposed, represent a total sentence that is proportionate to the offence": op. cit. par 6.512. The present case appears, however, to be most unusual. If the imposition of a period of disqualification, like the imposition of any other penalty, is expected or intended (theoretically at least) to provide some sanction or deterrent, it has in the case of the respondent been a signal failure. In the course of a comparatively short yet florid career he has been the object of no less than five previous orders for disqualification which he appears to have contumeliously ignored. The usefulness of the orders seems to have been little more than to provide the basis for seven previous charges similar to charge 1 in this case as well, of course, as that charge itself. It is difficult to envisage that the order imposing the two-year period of disqualification in this case is likely of itself to be of greater practical utility than any of its predecessors.

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Judgment (49 paragraphs)

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