R v Lefebure [2000] VSCA 79

Court of Appeal (Vic)|2000-04-12|Before: TADGELL and CHERNOV, JJ.A. and, HEDIGAN, A.J.A.

CRIMINAL LAW - Armed robbery - Motor vehicle used by offenders to reach scene of crime and as intended means of escape. Sentence - Cancellation of driving licences and periods of disqualification ordered on footing that crime committed "in connection with the driving of a motor vehicle" within the meaning of Road Safety Act 1986, s.28(1)(b). Failure of sentencing judge to consider matters properly to be taken into account in determining length of period of disqualification.

Christopher gave notice of intention to apply for leave to appeal against sentence on 23 November 1998 and, having obtained an extension of time to do so, Richard lodged a notice on 21 December 1998. In each case the sole ground taken was that the sentencing judge erred in fixing a period of disqualification from obtaining a licence (three years) which was manifestly excessive. Leave to appeal was granted by the President of this Court to each of the present appellants on 8 December last year, when each appeared before him in person. The Court today, without demur from the Crown, allowed two more grounds to be added to each of the appellants' notices - or rather, one more ground with two limbs, namely this, that the learned sentencing judge erred in the exercise of his sentencing discretion when he cancelled the appellant's licence to drive and disqualified him from being re-licensed for three years, in that (a) he failed to have any or any sufficient regard to the principle of rehabilitation and (b) he failed to have any or any sufficient regard to the period of cancellation required in order to serve its part as a punitive element in the context of the total punishment imposed.

The relevant facts reveal a plan of naivety and maladroitness. On the evening of 30 May 1998 the three accused men were in need of money with which to obtain heroin, of which all were users, and they decided to obtain it by an armed robbery. They obtained from a friend in Noble Park a kitchen knife and some stockings. The three travelled around the Noble Park-Springvale area, in a motor vehicle belonging to and driven by Christopher, looking for a suitable victim. In the course of this, Richard cut up the stockings that were later used in the armed robbery.

Shortly before midnight the three men determined that their target would be a 7-Eleven store in Police Road, Mulgrave. Christopher parked his vehicle in a nearby street and left with Allis to go to the 7-Eleven store. Richard remained in the vehicle because, earlier in the night, it had given trouble. It was left running for fear there might be difficulty in re-starting it. While the vehicle was idling, Richard moved from the back seat, in which he had been travelling, to the front passenger seat. Christopher, who was armed with the kitchen knife, and Allis walked to the store. They pulled the stockings down over their heads and entered. Adventitiously, police were patrolling the area at the time and, unfortunately for the appellants, observed Christopher and Allis enter the store and immediately called for assistance from other police. Having entered the store, Christopher approached the assistant, held out the knife and demanded cash. Allis stood at the front door keeping a lookout. Christopher moved round behind the counter while the assistant opened the cash register. Christopher then took notes from the register and demanded a plastic bag for the coins. Allis took possession of the notes from Christopher and then left. Christopher remained to pocket some coins from the cash register and then also left. By this time police had strategically placed themselves and arrested the two as they ran from the store. Christopher was ordered to drop the knife that he was carrying and he threw it into nearby bushes. Both were taken into custody. Upon their being searched, the police found $206 in their possession. Christopher indicated to the police that his brother was waiting in a motor vehicle nearby and so the police set out to apprehend him. In the meantime, however, Richard had noticed the police drive past and so he decided to drive round to the store to see what was happening. He was followed by the police and his arrest swiftly ended these circus movements. Upon being interviewed at the police station all three admitted their involvement in the incident. All of them stated in effect that they committed the offence because they had no money for heroin which they needed.

In the course of his remarks made when entertaining the application for leave to appeal by the appellants last December, the learned President referred to three questions which presented themselves to his mind and justified the grant of the application. These were, first, whether the sentencing judge had the power to cancel the licence as he purported to do and impose the period of disqualification pursuant to s.28 of the Road Safety Act. The second was whether this Court has jurisdiction to entertain an appeal against such an order, assuming it to have been properly made, having regard to the definitions contained in s.566 of the Crimes Act 1958. The third was whether, if this Court has power to entertain an appeal, it was appropriate in this case, having regard to the nature of the sentences imposed, to have disqualified the appellants from obtaining another licence for a period of three years.

It might have been thought that, having noted the three questions thus, the appellants, to whom leave was given to appeal, would have used the first of them. As it was, however, no such point has been taken and it is conceded on behalf of each of the appellants, who were represented, both of them, by Mr Gamble, that the judge did have the power which he purported to exercise pursuant to sub-s.(1)(b) of s.28 of the Road Safety Act. Furthermore, no point was taken by the Crown that this Court had not jurisdiction to entertain an appeal against the length of the period of disqualification. The third question that was identified by the President was in effect the sole question with which this Court was taxed today.

In the forefront of his argument, counsel for the appellants submitted that the learned sentencing judge had not been directed to, and did not himself take account of, the relevant matters to be taken into account in deciding whether a convicted person should be disqualified for any period of time from obtaining a driving licence. We were referred to five cases in which the matter has been canvassed to a greater or lesser extent. They were R. v. Tantrum[1], R. v. George[2], R. v. Boeyen[3], R. v. Bazley[4] and R. v. Bell[5]. From these decisions I think it may be said that the following considerations are to be taken into account on the imposition of a period of disqualification. First, since the disqualification falling to be imposed contains a punitive element, it is necessary to evaluate the extent to which disqualification is required in the total punishment in order to mark the dissatisfaction of the community with the offence. In making that evaluation, aggravating or mitigating factors are to be considered, and also is to be weighed the length of the disqualification compared with any period of custody which is ordered. It is not necessary that the two should be equated in length. Sometimes it is desirable, balancing all the facts, that a period of disqualification will exceed the length of the period of any custody. Sometimes, of course, as in the case here of Richard Lefebure, there was no actual period of custody at all, notwithstanding that a penal sentence was imposed upon him. In the case of Bell it was thought necessary that, although nine months' imprisonment had been ordered and two years' disqualification ordered at first instance, and although the period of disqualification was reduced on appeal to 12 months, it was still desirable that it should exceed the period of nine months' imprisonment which had been imposed.

Next, it is usually appropriate that, in assessing the necessary length of any disqualification period, the convicted person's dependency on a driving licence should be taken into account. To do so it is usually necessary to ensure that the prospects of rehabilitation of the convicted person will not be unduly hampered. Such considerations as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment are to be considered. If a person such as these two men before us needs transport in order to obtain medical treatment - both, we were told, are still on methadone programmes - that is the kind of thing which ought not to be disregarded in fixing the length of any period of disqualification.

Now, the manner in which the judge was invited to consider whether a period of disqualification should be imposed on these men was, I think it may fairly be said, somewhat unstructured. At the outset of his remarks upon the plea for leniency, counsel for the Crown referred the judge to s.28 of the Road Safety Act and referred to a decision of Nathan, J. in Rochow v. Pupavac[6]. There the judge, referring to that provision, said that "... where the driving of a motor vehicle is inextricably connected with the commission of an offence, but where the vehicle itself may not be driven in a way which itself amounts to an offence. For example where a vehicle is driven as a mobile depot for a drug pusher ... or ... used as part of the equipment or paraphernalia for the commission of an offence ... the vehicle is being driven 'in connection with' that offence ..." giving jurisdiction to disqualify within the terms of sub-s.(1)(b) of s.28.

The learned sentencing judge in this case accepted and purported to apply that dictum. His Honour said that he was satisfied, having regard to the circumstances of the offence and the use of the car which was driven to the scene of the crime and which was to be used for the purpose of escape from the crime, the criteria stated by Nathan, J. had been satisfied.

I take leave to say - recognising that it is not necessary for the purposes of this case - that it seems to me that the ambit of sub-s.(1)(b) of s.28 of the Road Safety Act is not perspicuously clear. Adam, J. in the case of Murdoch v. Simmons[7] considered similar words in what was s.26(1) of the Motor Car Act 1958, namely, whether an offence had been committed "in connection with the driving of a motor car". His Honour, at 888, said that the words "in connection with" "are very wide, general words, and from their context can be given a variety of meanings, some wide meanings, others narrow meanings. And the problem is, of course, to construe these words in the present context". A little further on, at 889, Adam, J. said this:

"The context is important in all these cases where the words 'in connection with' are used in legislation. One would naturally be disposed to treat the words 'in connection with the driving of a motor car' in their context as meaning that in connection with the manner of driving the car there were grounds for disqualifying the driver from holding a licence. ... The cancelling of a licence in some cases is, of course, far more serious as a penalty than any fine that can be inflicted. It is of a penal nature and in accordance with the well-settled rules of construction where the language is vague or general the onus does lie on the informant seeking to obtain the penalty to show that the offender was clearly intended to come within the scope of the legislation. So one is the more predisposed to give to the words 'offence in connection with the driving of a motor car' a meaning which indicates that in a very real sense the offence in question is related to the driving of a motor car. As it is put in one case in another connection, by, I think, Kitto, J., 'a substantial connection' is required to answer the expression."

Nathan, J., in the case of Rochow v. Pupavac, referred to Murdoch's Case and claimed to derive some assistance from it, but I am bound to say that it is very difficult indeed to reconcile the two cases in respects now relevant. It may be that the time has come for consideration by this Court of the meaning of s.28(1)(b), but that will have to wait until a suitable case arises.

The judge called for no submissions in the present case as to the appropriate length of any disqualification. The Crown "floated" the problem before his Honour and did not offer any suggestion as to whether account should be taken of any particular matters. It is right, I think, to say that none of the matters referred to in the cases of Tantrum, George, Boeyen, Bazley and Bell, to which I have referred, was the subject of any invitation for his Honour's consideration. In imposing the disqualification, the judge said no more than that which I have already quoted. His Honour did not state that he had taken into account any of the matters which the authorities I have mentioned indicate should be considered, and there is no other indication that he did so.

I conclude, therefore, that the judge's sentencing discretion went astray and that the period of disqualification he imposed should be set aside. That is not to say that his Honour, in fixing the individual sentences of imprisonment, did not take into account those matters personal to each of the appellants respectively which deserved to be taken into account, and did not differentiate between them in imposing the sentences of imprisonment that he did. Plainly enough his Honour had a good deal of regard to the matters personal to these two appellants. There is no indication, however, why there was no differentiation in the matter of the disqualification period as there was as to the other penalties. I have considered whether, in substituting some other period of disqualification, there ought to be a distinction drawn between the two men. Upon the whole I have decided that it is not appropriate. I would propose that, instead of the period of disqualification of three years, a period of 18 months be substituted.

I agree with the learned presiding judge in the orders proposed. I am also of the view that no final opinion as to the extent of the power to make the relevant orders under s.28 of the Road Safety Act should be expressed until counsel have had the opportunity to advance submissions with respect to that issue.

The judgment of the Court in each appeal will be in accordance with these minutes:

Order that the order for disqualification made pursuant to s.28 of the Road Safety Act that all driver licences and permits be cancelled and that he be disqualified from obtaining a licence for a period of three years be set aside.

In lieu order pursuant to s.28 of the Road Safety Act that all driver licences and permits held by the appellant be cancelled and that he be disqualified from obtaining one for a period of 18 months from 9 November 1998.

[2] (unreported, Court of Criminal Appeal) 21 September 1989

[4] (unreported, Court of Appeal, 21 August 1997)

[5] (unreported, Court of Appeal, 7 December 1999)

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