R v Novakovic [2007] VSCA 145

Court of Appeal (Vic)|2007-07-06|Before: NETTLE, ASHLEY AND REDLICH JJA

Criminal law - Sentence - Cancellation of driving licence and period of disqualification ordered on footing that crime committed "in connection with the driving of a motor vehicle" - Whether right to appeal against an order made under s 28(1) of the Road Safety Act 1986 - Whether a disqualification order under s 28(1)(b) is a "sentence" for the purpose of s 567(d) of the Crimes Act 1958 - Whether a substantial relation between the other offence and the driving of a motor vehicle - Whether sentence manifestly excessive - Appeal allowed only so as to make a different order under of the .

**1 This is an appeal against sentence imposed on the appellant on pleading guilty to counts of criminal damage, being a prohibited person in possession of an unlicensed firearm, and armed robbery. The details are set out in the reasons for judgment of Ashley JA which I have had the considerable advantage of reading in draft.

2 As will be seen, the appellant's principal complaint is that the judge ought not to have made an order under s 28(1)(b) of the Road Safety Act 1986 to cancel the appellant's licence to drive and to disqualify the appellant from obtaining a licence for six years. Alternatively, it is said that the period of disqualification was too long.

3 Other things being equal, the appeal might have been dealt with ex tempore. In the event, however, the Crown chose to put at the forefront of its contentions a proposition that there is no right to appeal under s 567 of the Crimes Act 1958 against an order under s 28(1)(b) of the Road Safety Act 1986. That has required us to consider our decision.

4 The essence of the Crown's contention is that an order under s 28(1)(b) of the Road Safety Act is not a "sentence" within the meaning of s 566 of the Crimes Act. The Crown argues that, although such an order would be a sentence according to ordinary acceptation and, therefore, was within the inclusive statutory definition of a "sentence" until 1991, the current form of definition includes only those orders to which it expressly refers and so excludes all others.

5 I reject the argument. The definition of "sentence" is in terms an inclusive definition. Prima facie, therefore, it enlarges the ordinary meaning of "sentence".[1] Admittedly, it also expressly includes some forms of order which may be sentences according to ordinary conceptions. According to some of the authorities, that opens the door to an argument that the definition is intended to be exhaustive.[2] But the**

better view is that such specific inclusions do not imply an exhaustive intention,[3] especially where, as in this case, one or more of the expressly included items may be on the edge of the ordinary meaning of the term. As the High Court said in Corporate Affairs Commission (S A) v Australian Central Credit Union:

"The function of such an inclusive 'definition' is commonly both to extend the ordinary meaning of the particular word or phrase to include maters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases."[4]

**6 Moreover, as Ashley JA demonstrates in his analysis of the legislation, there is no reason in context or policy to suppose that Parliament intended to exclude s 28(1)(b) orders from the scope of the definition. Such indications of that type as there may be are all the other way.[5]

7 In the result, I agree with Ashley JA that an order under s 28(1)(b) of the Road Safety Act 1986 is a "sentence" within the meaning of s 566 of the Crimes Act 1958 and so may be the subject of an appeal under s 567.

8 I also agree with Ashley JA, for the reasons that his Honour gives, that the appeal should be allowed. It is appropriate that the period of disqualification be lessened in the manner he proposes. Otherwise, the sentence should be confirmed.**

9 This is an appeal, pursuant to leave granted, from sentence imposed upon the appellant, Milorad Novakovic, in the County Court on 8 May 2006. The appellant, who had earlier pleaded guilty to counts of criminal damage (1 count, Count 1),[6]

being a prohibited person in possession of an unregistered firearm (1 count, Count 2),[7] common assaults (2 counts, Counts 3 and 4)[8] and armed robbery (1 count, Count 5),[9] was sentenced on that day to a total effective sentence of 4 years and 9 months' imprisonment, with a non-parole period of 2 years and 9 months.[10] Other orders were also made, including orders that the appellant's driver's licence be cancelled, and that he be disqualified from obtaining another licence for a period of 6 years.

"1. The individual sentences, total effective sentence and non-parole period are manifestly excessive.

2. The learned sentencing judge erred in disqualifying the appellant from driving or alternatively in the period of disqualification imposed."

11 On the hearing of the appeal, the second ground of appeal was the main focus of attention.

The relevant chronology and the circumstances of the offences

**12 The relevant chronology was as follows. All the offences were committed on 31 July 2005. The appellant was arrested on 1 August 2005 and made admissions with respect to the armed robbery. He was remanded in custody. He was committed for trial on 27 January 2006. Thereafter he pleaded guilty to the offences upon which he was ultimately presented, reserving his plea in respect of another alleged offence. On 28 March 2006 he was arraigned, and pleaded guilty to the counts upon which he was later sentenced. The plea was conducted on 5 May 2006, and the appellant was sentenced three days thereafter.

14 On the evening of 31 July 2005 the appellant, who had been at a birthday party, and who had been drinking, arranged to go to the home of a friend named Kostelnik. Another man known to the appellant, Mujezinovic, was present at Kostelnik's home. The appellant must have been apprised of this, for he said that if he attended his friend's home Mujezinovic had better not be there.

15 In the event, the appellant did go to Kostelnik's home, apparently arriving at about 8.30 pm. After the three men did some drinking, the appellant decided to leave. He could not find his car keys. He formed the belief, mistakenly, that the other men knew where the keys were. An argument broke out, the appellant being the person who instigated and maintained it. The appellant, being very angry, damaged various appliances, and broke a front window of the premises. These were the circumstances of count 1.

16 The appellant left the house. He returned shortly thereafter holding a handgun.[11] Kostelnik observed him putting a bullet into it. The appellant was a "prohibited person" under s 3 of the Firearms Act 1996 because not more than five years had expired since he finished serving a sentence of imprisonment, albeit suspended. These were the circumstances of count 2.

17 I go to the circumstances of count 3. Mujezinovic and the appellant left the house to look for the missing keys. At the appellant's car, the appellant put a bullet into Mujezinovic's mouth, and told him to spit it out. After he had done so, the appellant put his hands around Mujezinovic's neck, and attempted to choke him.

18 Then the appellant returned to the house. He put the barrel of the gun up against, and pushed it into, Kostelnik's neck. He asked for the keys, and was told by Kostelnik that he did not have them. These were the circumstances of count 4.

19 At this juncture, another man, Mitev, arrived at the house. Thereafter the appellant threatened all the other men - at least with his gun, and I think with a knife or knives.

20 Then the appellant took hold of Mitev, put his gun to the latter's neck, and demanded the missing keys. He took two gold chains which Mitev was wearing, a gold ring, and a mobile phone. A little later he demanded, and received from Mitev, the keys of the latter's car. The appellant drove away in Mitev's car, taking the gold chains, the ring, and the mobile phone with him. These were the circumstances of count 5.

21 To complete the story, I should mention two matters. First, the appellant crashed the car which he had taken. It was a write-off. The jewellery was recovered, and the phone; but not the ring. Second, photographs of the victims which were put in evidence showed that the appellant must have applied considerable pressure with his hands or gun, as the case might be, to the necks of his victims. But the learned sentencing judge concluded that the injuries "appear[ed] to be comparatively superficial".**

**22 The appellant was born on 23 November 1968, and so was aged 36 years at the time of offending.

23 He was born in Bosnia, and was raised, it seems, mainly by his paternal grandmother.

24 He migrated to Australia in 1992, aged about 24, as a refugee. Before migrating, he had experience of very bad things done in the Bosnian civil war. A brother had been killed in the fighting.

25 In Australia, the appellant worked in labouring occupations - on occasions full time, at other times casually. There was some material before the judge that as a self employed painter and concreter he had particular need to use a motor vehicle.

26 At the time when he committed these offences the appellant was separated from his de facto wife and child. The child was then in the custody of the mother. The appellant was living with his father. According to his counsel's submissions on the plea, the appellant had used alcohol to excess following the breakdown of the relationship.

27 As to the future, counsel submitted, the relationship was now restored. On his release, the appellant would be able to again live with his partner and child.

28 The appellant had a prior criminal history. He had been before the courts on three occasions - in 1996, 1999 and 2003. Of principal relevance were convictions in 1999 for reckless conduct endangering life, causing serious injury intentionally, common assault, and causing injury intentionally. For those offences - which had involved, inter alia, the production and discharge of a firearm - the appellant had been sentenced to 12 months' imprisonment, suspended for 24 months.**

29 No complaint is made, save with respect to the order made in reliance on s 28(1)(b) of the Road Safety Act 1986, of specific error in the sentencing remarks of the learned judge. Understandably so. In my opinion they are a clear, logical and correct analysis of the various circumstances bearing upon the imposition of sentence. As his Honour said, these were serious offences which involved the appellant's second use of a firearm in a criminal setting. They involved a breakdown in an amicable relationship, set in context but not excused by the appellant's use of alcohol. There were mitigating circumstances - the plea of guilty, admissions made at the police interview, and remorse. The appellant had "employment potential" and the "ability to be rehabilitated." In that connection, his relationship with his partner might well play a vital role. As well, there was a role for therapy arising out of the appellant's experiences in the Bosnian conflict. Still, the offending called for sentences which reflected both general and specific deterrence and denunciation. An immediate period of imprisonment was the only proper disposition; but with a non-parole period as could assist the appellant's re-entry into the community. Because there were three separate victims, there must be a degree of cumulation.

30 Section 28 of the Road Safety Act 1986 relevantly says this:

"If a court convicts a person ... of any other offence in connection with the driving of a motor vehicle, the court -

(b) in any case, but subject to paragraph (a), may suspend for such time as it thinks fit or cancel all driver licences and permits held by that person and, whether or not that person holds a driver licence, disqualify him or her from obtaining one for such time (if any) as the court thinks fit."

**31 The first issue which the appellant sought to raise by ground 2 was whether the court convicted the appellant of "any other offence in connection with the driving of a motor vehicle."[12] On the plea, counsel for the Crown had argued that the provision was triggered by "the armed robbery of the vehicle and the use of the vehicle in the offence." The "vehicle was stolen ... during the armed robbery and then driven away ..." Counsel for the appellant had not then denied the potential applicability of the provision, saying that it was "ultimately a matter" for the learned judge.

32 The second issue which the appellant sought to raise concerned the judge's exercise of discretion in fixing the period of disqualification. According to the appellant's submission, his Honour failed to approach the matter as required by R v Lefebure.[13]

33 But an antecedent issue was raised by the Crown. It was whether there is any right of appeal against an order made under s 28(1). The Crown submitted that there is not. It submitted that such an order is not a "sentence" within the meaning of s 566 of the Crimes Act 1958. That question was left open by this Court in Lefebure,[14] and must be first addressed.**

34 By s 566 of the Crimes Act, "sentence" is defined to include -

"(a) any order made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991; and

(ab) any order made under section 84S or 84T of the Road Safety Act 1986; and

( c) any order made under section 11 of the Sex Offenders Registration Act 2004; and

(f) an order under section 142, 144, 150, 158 or 163 of the Children and Young Persons Act 1989 made by the Supreme Court or the County Court in its original jurisdiction."

35 Section 567 of the Crimes Act relevantly provides -

"A person convicted on indictment or for a relevant summary offence heard and determined by the County Court pursuant to section 359AA may appeal under this Part to the Court of Appeal -

(d) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law."

36 The powers of this Court on a prisoner's appeal are set out in s 568(4). Thus -

"On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal."[15]

**37 With one exception, each of the provisions to which I have referred was in that form both when the appellant committed the instant offences and when he was sentenced (I use that term in a non-specific way).

38 The competing submissions of the parties were advanced with admirable economy and clarity. According to the appellant's submissions -**

The definition of "sentence" has been expressed in the language of inclusion ever since a right of appeal in criminal matters was conferred by the Criminal Appeals Act 1914 (Vic). The definition remains in that form. The definitions of "prothonotary" and "Registrar" in s 566 of the Crimes Act show that in a relevant context the legislature has apprehended the difference between definitions in the "includes" and the "means" forms.
Despite a significant change to the definition of "sentence" in 1991, there has remained a continuing utility in the definition being expressed in the language of inclusion - at least because it would be a very difficult task to survey every Act so as to pick up every possible order which would have to be included if there was to be a definition in the "means" form.
At least because of the form of the definition, "sentence" where used in s 567(d) of the Crimes Act [16] has always carried two meanings; a so-called "ordinary meaning", and a meaning according to the language of the inclusive definition.
The ordinary meaning was usefully described by Hunt CJ at CL in R v Warfield.[17]
An order made under s 28(1) of the Road Safety Act is an order which falls within the conception of sentence according to its ordinary meaning.
To conclude that a s 28(1)(b) order was not a sentence for the purposes of s 567(d) would give rise to fragmentation of the criminal process. Thus, an appeal to this Court from sentence imposed in the County Court could properly be agitated so far as the sentence did not touch an order made under s 28(1)(b). But insofar as the convicted person's complaint addressed an order made under that subsection, such complaint would have to be agitated before a single judge of the Trial Division in a proceeding of an administrative law type - it involving a distinct test in proof of error; and then there could be appeal to this Court. Fragmentation of the criminal process is generally undesirable, and should be avoided if possible.

**39 Counsel for the Crown made two concessions: first, until 1991 an order made under s 28(1)(b) would have fallen within the ordinary meaning of "sentence", that meaning being applicable to the word where used in s 567(d) and its predecessors.[18] Second, it is generally undesirable that there be fragmentation of the criminal process; and that would happen if the Crown's submissions were accepted.

40 Counsel submitted, however, that those concessions did not avail the appellant. That was because -**

There have been repeated and substantial changes to the definition of "sentence" since 1989. Although the definition remains in form inclusive, in substance it must be treated as if it was a definition in the "means" form.
"Sentence", in the context of the right of appeal conferred by s 3 of the Criminal Appeals Act 1914, was relevantly defined by s 2 of that Act to include "any order ... made on or in connection with a conviction with reference to the person convicted or any property or with reference to any moneys to be paid by him". (Counsel laid this emphasis on the provision).
The emphasised language of relationship remained in the definition until 1991. But s 17(1) of the Crimes Legislation (Miscellaneous Amendments) Act 1989 began a process of significant change by substituting a definition of "sentence" as follows:

"(a) any order of the court or of the judge thereof made on or in connection with a conviction with reference to the person convicted or any property or with reference to any money to be paid by the person convicted; and

(b) a community-based order made under Part 5 of the Penalties and Sentences Act 1985; and

( c) an adjournment under Part 9 of the Penalties and Sentences Act 1985; and

(d) an order that the person be released upon the person entering into a recognisance to receive and undergo sentence when called upon; and

(e) an order that the person be discharged on giving security by recognisance or otherwise that the person will comply with specified conditions; and

(f) an order under section 142, 144, 150, 158 or 163 of the Children and Young Persons Act 1989 made by the Supreme Court or the County Court in its original jurisdiction."

The critical change was effected by clause 4.3 of the Sentencing Act 1991.[19] A declared purpose of that Act was "to have within the one Act all general provisions dealing with the powers of courts to sentence offenders".[20] Against that background, for paragraphs (a) - (e) of the definition of "sentence" there was substituted:

"(a) any order made under Part 3, 4 or 5 of the Sentencing Act 1991; and

The previous general words of relationship thus disappeared, being replaced for the most part by a required connection with an order made under the Sentencing Act.

Since 1991, the definition has been amended from time to time[21] so as to bring within its purview particular orders not comprehended, or not previously comprehended, by the Sentencing Act. Those amendments emphasise that from 1991 the definition has been in substance exclusive, though in form inclusive.
It was significant that, although s 28(1) of the Road Safety Act was of long standing as at 1991, it was neither brought within the Sentencing Act at that time, nor made the subject of express reference in the definition of "sentence". By contrast, orders made under the 2005 amendments to the Road Safety Act have been specifically imported into the definition.

**41 In my opinion, an order made under s 28(1) of the Road Safety Act is a sentence for the purposes of s 567(d) of the Crimes Act. The following matters bear upon that conclusion.

42 First, the definition of "sentence" in the 1914 Act and its successors (until amendment in 1991) was not only inclusive in form, its language was essentially similar to the language of comparable provisions in NSW, QLD and WA.[22] Inclusive definitions of that kind have commonly been held to extend the ordinary meaning of the word "sentence".[23] There was no reason to treat the Victorian definition any differently.

43 Second, attention has focused in the authorities on what is connoted by "sentence" in its ordinary meaning. In Warfield, Hunt CJ at CL said this:**

"'Sentence' is most appropriately described as 'an order which definitively disposes of the consequences of conviction', or 'a definitive decision by the judge on the punishment or absence of it which is to be the consequence of the conviction'."[24]

**44 In my respectful opinion, that was a useful descriptor. It was founded upon observations of Barwick CJ in Griffiths. It was not inconsistent with anything said in the other authorities which I have so far mentioned. Nor was it at odds with what was said by Mahony JA in Botany Municipal Council v Jackson,[25] another case referred to in argument.

45 Third, cancellation of a licence, and disqualification from obtaining one for some future period, is conceptually part of the punishment of an offender. So much is very clear. See, for example, Lefebure,[26] and the reasons for judgment of Batt JA in R v Bell.[27] That is also the position with offences such as culpable driving, in respect of which the Sentencing Act makes loss of licence mandatory.[28] It was, again, the position with respect to offences of similar kind under the earlier Penalties and Sentences Act 1985.[29]

46 Fourth, so understanding the character of an order made under s 28(1) of the Road Safety Act, there could be no doubt that such an order fell within the ordinary meaning of "sentence" until 1991.

47 Fifth, if the Crown's argument was correct, the consequence would be that a loss of licence mandated by the Sentencing Act, being part of an offender's punishment, could be the subject of s 567(d) appeal; but a loss of licence in consequence of a s 28(1) order, though being part of an offender's punishment, could not be the subject of such an appeal. I would be reluctant to entrench such a disconformity unless the legislation demanded it.

48 Sixth, for a period of more than 80 years an order of the kind now under discussion was able to be all or part of the subject matter of an appeal authorised by s 567(d) of the Crimes Act. It was faintly proposed that the translation of the provision from the Motor Car Act to the Road Safety Act when the former Act was repealed in 1986 suggested the contrary. It was argued, as I understand it, that the purposes of the Road Safety Act are not suggestive of any provision to do with sentence being found therein. But that sits ill with the Crown's reliance upon amendments in 2005 to the Road Safety Act by which provision was made for impoundment, immobilization and forfeiture orders in respect of motor vehicles.[30] Orders of that kind were specifically brought within the definition of "sentence". There, the Crown sought to rely upon the fact that no comparable provision was made for a s 28(1) order.

49 Seventh, the Road Safety Act is in fact littered with provisions which both create offences and specify penalties. Section 28(1)(b) differs only in that, rather than attaching to a particular offence, it attaches generically to offences which have a particular character.

50 Eighth, three other aspects of the circumstance that a s 28(1) order was able to be the subject matter of the criminal appellate process over a very long period should be mentioned. In the first place, the punitive aspect of a s 28(1) order was exactly the same before and after the 1991 amendment of the definition of sentence. In the second place, the undesirability of fragmentation was no less after 1991 than it had been before that time. It follows, in the third place, if the Crown's argument be correct, that an aspect of an offender's punishment was - without, as it appears from counsel's submissions, a word by the legislature indicative of any such subjective intent - removed from the criminal appellate process; and fragmentation of that process was ensured. On its face, that is an unlikely situation - which is not to say that legislation might not compel it.

51 Ninth, I understood counsel for the Crown to submit that the legislature's intent to create a new regime in 1991 was to be discerned from the re-cast definition of sentence taken in conjunction with the revealed purpose of the Sentencing Act to have within the one Act all general provisions dealing with the powers of courts to sentence offenders. But I think that little if anything can be made of the second circumstance. That is so for two reasons. In the first place, the Penalties and Sentences Act 1985 stated a purpose in almost the same language; and yet the definition of "sentence" remained unchanged. In the second place, the language of the purpose, by its reference to "general provisions dealing with the powers of the courts" rather suggests, as is evidently the fact, that the Sentencing Act is not conceived of as being the sole repository of sentencing options.

52 Tenth, despite the disappearance of the general words of relationship found in the pre 1991 definition of "sentence", the definition continues to be expressed in the language of inclusion. In my opinion, there is nothing which unequivocally suggests that "includes" should now be read as "means", or as "means and includes". I do not accept the argument that the insertions into the definition since 1991 indicate any such thing. To my mind, they show only that, as particular legislation has been enacted or amended, and has thus been at the forefront of Parliament's attention, Parliament has seen fit to specifically provide that orders made pursuant to such legislation are to constitute sentences for the purposes of the appeal provisions of the Crimes Act.

53 Eleventh, even when the definition was extremely broadly expressed there was room for the co-existence of "sentence" in its ordinary meaning. If, as counsel for the Crown seemed to suggest, the definition is now more confined, on one view there is more rather than less reason to read "sentence" in s 567(d) as also bearing its ordinary meaning.

54 Twelfth, the non-inclusion of reference to s 28(1) in the 1991 definition of sentence and the inclusion in the definition of orders made under 2005 amendments to the Road Safety Act can be said to assist the Crown's argument. But I cannot accept that those matters are decisive. The former is explicable as being unnecessary because of the continuing inclusive form of the definition. The latter is explicable in the way that I mentioned a little earlier.

55 Thirteenth, as I understand Bell, in 1999 this Court countenanced a challenge to an order made under s 28(1) in a s 567(d) appeal. That runs in the appellant's favour, although it might be said that in proceeding on that basis the Court[31] acted per incuriam.

56 Fourteenth, nothing which I said in DPP v Kose[32] concerning s 6J(1) of the Sentencing Act tells against my conclusion that an order under s 28(1)(b) is a sentence for the purposes of s 567(d).

"In connection with the driving of a motor vehicle"

57 I return to the first issue argued under ground 2 for the appellant. It is necessary to understand what count 5 comprehended. The presentment alleged, relevantly, that the appellant -**

"robbed David Mitev of certain property, namely a Holden Commodore, an NEC mobile telephone, two gold necklaces and one gold ring and at the time had with him an offensive weapon namely a firearm".

**It was to the offence thus described that the appellant pleaded guilty.

59 First, there must be a substantial relation between the other offence and the driving of a motor vehicle.[33] That is so despite the potential breadth of the phrase "in connection with". That phrase takes colour from its context.[34] Here its context is, as Adam J said in Murdoch v Simmonds,[35] one of a "highly penal provision", providing for an additional punishment which may in a particular case be serious by comparison with the penalty imposed for the "other offence".

60 Second, whilst I agree with the observation of Nathan J in Rochow v Pupavac[36] that each case must turn on its particular facts, with respect I do not agree that it will be sufficient that -**

"A connection not be so remote and fanciful as to offend a reasonable man's concept of relationship of one event with another".[37]

**61 Third, I do not accept the submission for the appellant that the reasons for judgment of Adam J in Murdoch are to be read as suggesting that his Honour perceived a need for a demonstrated connection between the other offence and the manner of driving. Whilst his Honour made some reference to such a concept,[38] it was not part of his ultimate formulation.

62 In my opinion, the circumstances of the present case unarguably met the substantial connection test. The "other offence" consisted in part of taking the vehicle, by driving it away.

63 I go to the third issue - that is, the way in which the discretion was exercised. Lefebure makes clear the approach which must be taken. Tadgell JA said this:**

". . . 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 Tantrum (1989) 11 Cr App R (S) 348 at 349, George (unreported, Court of Criminal Appeal, Vic, No 155 of 1989, 21 September 1989), Boeyen (1990) 50 A Crim R 482, Bazley (unreported, Court of Appeal, Vic, No 9 of 1997, 21 August 1997) and Bell [1999] VSCA 223. 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.

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."

**64 The learned judge was not referred by counsel to the analysis which needed to be undertaken. I think it is clear - and indeed counsel for the Crown conceded so much - that his Honour did not undertake it. The exercise of the discretion having miscarried, the order under s 28(1)(b) must therefore be set aside, and the matter reconsidered.

65 I consider that the appropriate order is that any driver's licence or permit held by the appellant be cancelled, and that he be disqualified from obtaining one for a period of two years from the date of sentence. The period of disqualification would thereby equate, broadly, with the appellant's earliest possible release date.[39]

66 In so concluding, I have not forgotten that a s 28(1)(b) order has an intended punitive element. Neither have I overlooked the Crown's submission that there were circumstances in this case - counsel particularly referred to the appellant's drunken state at the time of the offending, this leading to him driving the vehicle so as to crash it, and inferentially to have been a danger to other road users in the period until he crashed it; and the appellant's unwillingness to confront his psychological problems, which it was suggested were a root cause of his abuse of alcohol - that would warrant a period of disqualification exceeding the period of imprisonment.

67 In some, perhaps many, cases, circumstances such as I have mentioned would be likely to yield a period of disqualification exceeding the offender's earliest release date, or the release date flowing from the total effective sentence. But I do not consider that such a period should be set in this case. The learned judge found that the appellant did have the ability to be rehabilitated, and stated that he set a non-parole period to assist the appellant's re-entry into the community. Whilst it may be said that there is nothing unusual in such a disposition, I think that it would be inconsistent with the tenor of what his Honour said about, and did to aid, the appellant's rehabilitation to seriously inhibit the appellant's activities beyond the earliest time of his release. In that context, two matters may be noted. First, the period of possible parole was relatively lengthy. It admitted of possible prolonged supervision of the appellant. Second, there was some evidence which suggested that the appellant had particular need for use of a vehicle in order to effectively resume work after his release. Return to work should be regarded as rehabilitative. The effect of a s 28(1)(b) order extending beyond the appellant's earliest possible release date could thus operate to hinder, not aid, the appellant's rehabilitation. That would sit uncomfortably with a sentence which otherwise sought to aid the appellant's rehabilitation.**

**68 Counsel for the appellant reprised circumstances which were addressed on the plea: A relatively early plea of guilty, co-operation, remorse. The commission of the offences whilst the appellant was intoxicated, suffering from untreated depression and the likely after-effects of experiences during the Bosnian conflict. The appellant's "industrious work history", and his "supportive family".

69 In the circumstances, counsel submitted, the sentence on count 5 and the head sentence were each manifestly excessive. They were disproportionate to the totality of the offending. Because there was a need for cumulation, the sentence on count 5 should have been moderated. Further, too little weight had been given by his Honour to the appellant's intoxication at the pertinent time. As a matter of common experience, it arose from the appellant's unresolved psychological problems.

70 In my opinion, the appellant's submissions should be rejected. In the particular circumstances, the individual sentences and the extent of cumulation were in the one case moderate and in the second case modest.

71 The submissions advanced for the appellant made no mention of R v Tsiaras[40] or R v Verdins.[41] Nonetheless, there was more than a hint that the principles re-discussed in Verdins could be called in aid by the appellant.[42] But I agree with the submission for the respondent that the state of the evidence did not enable the appellant to do so. The report of the psychologist, Ms Lechner, was full of speculation as to the existence and cause of any psychiatric condition at the time of the appellant's offending, this being a step away from the further enquiry whether any such condition could have been relevant to the offending in one or more of the ways categorized in Verdins.[43]**

72 In my opinion the appeal ought be allowed only so as to make a different order under s 28(1)(b) of the Road Safety Act 1986.

**73 I have had the advantage of reading in draft the reasons for judgment of Nettle and Ashley JJA. I agree with those reasons and the orders proposed by Ashley JA.

[1] Federal Commissioner of Taxation v Sherritt Gordon Mines Ltd [1977] HCA 48; (1977) 137 CLR 612, 621.

[2] YZ Finance Co Pty Ltd v Cummins [1964] HCA 12; (1964) 109 CLR 395, 402-3 (Kitto J) cf 405 (Menzies J).

[3] Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580, 588-9; Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (in liq) (1978) 138 CLR 210, 216 (Stephen J) and 229 (Mason J); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, 329-330 (Toohey, McHugh and Gummow JJ); Pearce & Geddes, Statutory Interpretation in Australia (6th ed) [6.58].

[4] Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201, 206-7.

[5] See and compare R v McN [1963] SR (NSW) 186, 187; Cranbrook School v Woollahra Council [2006] NSWCA 155; (2006) 66 NSWLR 379, 390 (McColl JA).

[6] Crimes Act 1958, s 197(1). Maximum penalty, 10 years' imprisonment.

[7] Firearms Act 1996, s 5(1A). Maximum penalty, 15 years' imprisonment or 1800 penalty units.

[8] Common law. Maximum penalty, 5 years' imprisonment.

[9] Crimes Act 1958, s 75A. Maximum penalty 25 years' imprisonment.

[10] The individual sentences were as follows:

Count 1 - 6 months' imprisonment. Count 2 - 2 years and 6 months' imprisonment. Count 3 - 12 months' imprisonment. Count 4 - 12 months' imprisonment. Count 5 - 4 years' imprisonment. Two months' imprisonment on each of Counts 1, 3 and 4, and 3 months on Count 2, were ordered to be cumulated on each other and on the sentence passed on Count 5.

[11] Apparently it was a .22 calibre weapon with a shortened barrel. Neither the gun nor bullets which the appellant admitted having had in his possession were recovered.

[12] Similar language has long been a feature of equivalent legislation. In England, it traces back to s 4(1) the Motor Car Act 1903, 3 Edw. 7, Ch 36; and in Victoria to s 8(1) of the Motor Car Act 1909, No 2237. See, more recently, s 26(1) of the Motor Car Act 1958 (Vic).

[14] Counsel for the Crown submitted that it was also left open in R v Suidgeest [2001] VSCA 68. But there the issue was not considered at all. The Crown conceded that orders made under s 28(1) had not been authorized in the factual circumstances; and this Court acted upon that concession, without considering whether such orders constituted sentences for the purposes of the appeal provisions of the Crimes Act.

[15] For completeness sake, it should be noted that s 567A confers a right of appeal on the Director of Public Prosecutions where he or she considers that "a different sentence should have been passed"; the powers of this Court being set out in s 567A(4) and (4A).

[18] I will not repeatedly refer to the predecessors of ss 28(1), 566 and 567(d). Reference to those provisions should be taken to include reference to their predecessors if the context so suggests.

[21] Counsel referred to provisions of the Sex Offenders Registration Act 2004, the Sentencing (Superannuation Orders) Act 2004, the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005, and the Children, Youth and Families (Consequential and Other Amendments) Act 2006.

[22] Respectively considered in Kakura v R (1990) 51 A Crim R 1, R v Marriner [2006] QCA 32; (2006) 160 A Crim R 63 and Good (1988) 38 A Crim R 37.

[23] So much was accepted, explicitly in some instances, implicitly in others, in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 307 (Barwick CJ), 311 (Stephen J), 319 (Jacobs J), 330 (Murphy J). See also The Queen v Carngham [1978] HCA 48; (1978) 140 CLR 487, 490 (Gibbs ACJ) and Kakura v R, 7 (Gleeson CJ).

[24] R v Warfield, (1994) 34 NSWLR 200, 205, referring to passages from the reasons for judgment of Barwick CJ in Griffiths.

[27] [1999] VSCA 223, [17]. See also [24], (Callaway JA).

[28] See s 89(1) and (4). See also R v Bazley (Unreported, Court of Appeal, 21 August 1997), 6 (Vincent AJA) and 8-9 (Batt JA).

[29] See s 95(1), R v George (Unreported, Court of Criminal Appeal, 21 September 1989), 2 (Crockett J) and Boeyen (1990) 50 A Crim R 482, 484-85 (Crockett J).

[31] Constituted by Tadgell, Callaway and Batt JJA.

[32] [2006] VSCA 119, [37]-[40].

[33] See Murdoch v Simmonds [1971] VicRp 108; [1971] VR 887, 889, 890; Crammer v McDougall (1995) 21 MVR 363, 370, " ... in a very real sense a relationship between the offence and the driving or a substantial connection." See also my formulation in Buckley v DPP (Unreported, Supreme Court of Victoria, 4 August 1994), 10.

[34] See, for instance, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 288 and R v Orcher [1999] NSWCCA 356, [27]-[32] (Spigelman CJ).

[39] That is because, although the non parole period was fixed at two years and nine months' imprisonment, there were 280 days of pre-sentence detention.

[42] Where pertinent circumstances are revealed, the significance of general deterrence and specific deterrence in the sentencing process may be variably affected, likewise the assessment of the moral culpability of the offender.

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