R v Suidgeest [2001] VSCA 68

Court of Appeal (Vic)|2001-05-10|Before: PHILLIPS, BATT and CHERNOV, JJ.A.

Sentencing - Armed robbery - Motor vehicle used to convey offenders to the scene - Upon conviction, driving licence cancelled and period of disqualification fixed - Whether beyond power - No argument advanced by Crown - Road Safety Act 1986, s.28(1).

These are two appeals brought by leave against sentences imposed on two co-offenders who were presented in the County Court on one count of armed robbery. Both pleaded guilty and on 11 July 2000 they were sentenced, one to five years and six months' imprisonment with a non-parole period of four years and the other to five years' imprisonment with a non-parole period of three years. Both had licences to drive which were cancelled and both were disqualified for a certain period of time from obtaining a further licence. Andrew Suidgeest was disqualified for six years and Matthew Suidgeest for five years. Both are now appealing on the ground that the sentence was manifestly excessive, but in both cases the appeal is limited to the order for licence cancellation and the fixing of a period of disqualification.

The first question raised by these appeals is whether the judge had power to act under s.28 of the Road Safety Act 1986. Section 28(1) authorises the court to cancel a driver licence and to disqualify the holder from obtaining one for a period of time, but the power in a case like this depends upon whether the conviction in question was for an "offence in connection with the driving of a motor vehicle". In this case the motor vehicle was used to convey the appellants to the site of the offending, a local BP service station, and would no doubt have been used for their escape had a security officer not intervened to make them flee on foot.

The appellants contend that the offence for which each of them was convicted was not an "offence in connection with the driving of a motor vehicle" within the meaning of s.28(1). This morning, counsel for the respondent submitted an outline of argument in which he accepted on behalf of the respondent that s.28(1) did not apply in the instant case.

In the result, the Court has determined that the appeals should be allowed for the purpose of setting aside the orders for cancellation and disqualification, no argument to the contrary having been advanced.

On each appeal an order is made in these terms:

The appeal is allowed and the order made in the County Court on 11 July 2000, that any driver licence or permit held be cancelled and that the prisoner be disqualified for a certain period from obtaining any such licence, is set aside.

Otherwise the sentences imposed below are confirmed.

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