DPP v Lepore
[2000] VSCA 195
•19 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 102 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA |
| Appellant |
| v. |
| ERNESTO JOHNNY LEPORE |
| Respondent |
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JUDGES: | TADGELL, CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 September 2000 | |
DATE OF JUDGMENT: | 19 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 195 | |
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CRIMINAL LAW – Sentence – Crown appeal – Fatal hit-run accident – Numerous prior convictions for driving offences by offender who never held driving licence – Continuing attitude of disobedience to the law – Cumulation called for but not imposed below – Appeal allowed.
Crimes Act 1958, 22.23, 567A; Road Safety Act 1986, ss.7(3), 30(1), 61(1)(a). Road Safety Regulations 1988.Reg. 603(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Respondent | Mr B.J. Sutherland | Keith A. Elliott |
TADGELL, J.A.:
This is an appeal by the Crown pursuant to s. 576A of the Crimes Act 1958 against sentences imposed on the respondent, Ernesto Johnny Lepore, in the County Court on 11 February this year.
The respondent had pleaded guilty on 10 February to two indictable offences and four summary offences all arising out of his driving of a motor vehicle on Friday, 13 August 1999. He was then aged 25 years and had never held a driving licence, having been repeatedly disqualified from obtaining one on account of manifold convictions for driving offences. At about 10.25 a.m. on the day he was driving his unregistered Toyota Lite Ace van south in Dorset Road, Boronia towards its T-intersection with Chandler Road and made a left-hand turn to travel east along Chandler Road. As it was turning, the vehicle knocked down and killed a 70-year-old female pedestrian, Mrs Dorothy Lee Bosma, who had taken two or three steps on the way to crossing Chandler Road from north to south with a green pedestrian traffic light in her favour. The respondent’s vehicle was seen to stop for a few seconds after the collision, to roll back, then to drive around the dead or moribund pedestrian and to make off easterly along Chandler Road.
Not long afterwards, police having been alerted by radio, a car driven by Senior Constable Ebert gave chase in Forest Road, within a few kilometres of the scene of the accident, towards Ferntree Gully. With his red and blue strobe lights and sirens operating, Ebert signalled to the respondent to pull over. The response was an acceleration of the van, which continued south along Forest Road, on to a dirt road, which was or became Railway Road and then Quarry Road.
At that stage the speed of the van varied between 80 and 100 kilometres per hour, with Ebert pursuing some 40 metres distant. Ebert lost sight of it when the respondent turned left into Hilltop Road but sighted it again reversing out of a sheltered driveway at 3 Hilltop Road. The van then sped away and doubled back into the fittingly-named Quarry Road, where Ebert fell in behind, again operating his lights and sirens. By now the respondent was travelling at about 100 kilometres an hour. Having re-entered Forest Road, and driven over a concrete median-strip, he overtook two other vehicles, crossing double lines on the road while travelling at about 80 to 90 kilometres an hour. Ebert then saw the van turn left into Alpine Street, Ferntree Gully, and continue at a speed of 80 kilometres an hour.
The van passed a traffic control signal showing a red circle at the intersection of Station Street and passed through the intersection at about 80 kilometres an hour in disregard of the signal. Ebert noted that there was vehicular traffic surrounding the intersection and formed the view that the display of his lights and sirens saved collision between the van and motorists travelling north-south along Station Street.
The van continued along The Avenue, turning right into Winward Drive and left into Newton Street where, after hitting and mounting the kerb and driving on to a nature strip near Burwood Highway, it came to an abrupt halt. The respondent ran quickly from the driver's side south in Newton Street and right into Burwood Highway where he headed west along the footpath.
Senior Constable Ebert alighted from his car, checked the van and then pursued the respondent, calling in his direction “Police, stop!”. The respondent ran into a property at 989 Burwood Highway, around the left side of the house to the rear and thence back to Burwood Highway, jumping an embankment to the adjoining property. Here he slipped and fell. Ebert caught him and informed him that he was under arrest. The respondent continued to struggle while they were both on the ground before Ebert subdued him, observing him to be in possession of a police scanner, a mobile telephone and a large amount of money that he dropped from his clenched hands.
Ebert had notified the Police Communications Centre of the events and shortly afterwards other police arrived. The respondent was handcuffed and placed in a divisional van. In the course of an interview at the Boronia Police Station he admitted hitting the deceased woman with his van and continuing to drive after hitting her. He stated that his reason for not stopping was that he was “on the run”, as he thought there were warrants out for his arrest for not performing community work, and he did not want to go back to gaol. He stated also that he had bought the van some five or six months earlier and that it was unregistered. He admitted to police that he did not hold a driver's licence and that he had sought to avoid interception by the police.
Later the same day the respondent was charged with the six offences to which he later pleaded guilty in the County Court. Before referring further to these I mention that in February 1999 the respondent had been sentenced to a community-based order that required him to perform 150 hours of work. He breached that requirement and on 31 August 1999 – a few weeks after the fatal driving episode – he appeared at the Ringwood Magistrates’ Court to be dealt with for the breach and was sentenced to be imprisoned for four months and 18 days, no minimum term being set. The respondent was also before the Ringwood Magistrates’ Court on 26 October 1999 to be dealt with for a number of offences, mostly of dishonesty, for which he was sentenced to be imprisoned for 12 months, with a minimum term of four months to be served before he should be eligible for release on parole. The documents available to this Court in explanation of the sentences imposed in the Magistrates’ Court are not especially clear or complete, but we were told on behalf of the appellant (and it was not gainsaid on behalf of the respondent) that the latter’s earliest eligible time of release from those sentences was mid-June 2000. It thus appears that, when in February 2000 he stood for sentence in the County Court, the respondent had some four months’ imprisonment still to serve for offences unrelated to those committed on 13 August 1999.
Upon arraignment in the County Court the respondent had admitted 96 prior convictions from 12 court appearances in the Magistrates’ Court from 18 May 1992 (the day after his 18th birthday) to 10 February 1999, when he was aged 24. Some of these were for offences of dishonesty and drug offences. No less than 44, however, were offences in connexion with the driving of a motor car and kindred offences, and so were directly relevant to the sentencing process in the County Court. There were 10 convictions for being an unlicensed driver, 12 for driving an unregistered motor vehicle, seven for fraudulently using number plates and fixing false number plates on a vehicle, four for exceeding the speed limit, seven for driving while disqualified, three for exceeding the prescribed blood-alcohol concentration and one for driving in a manner dangerous.
The two indictable offences and the four summary offences to which the respondent pleaded guilty on 10 February last (described in short form) and their relevant maximum penalties were these –
count 1 : failing immediately to stop his motor vehicle after an accident whereby a person was killed, contrary to s.61(1)(a) of the Road Safety Act 1986: maximum custodial penalty imprisonment for two years;
count 2 : reckless conduct endangering persons on a highway, contrary to s.23 of the Crimes Act 1958: maximum custodial penalty imprisonment for five years;
charge 1 : driving a motor vehicle during a period of disqualification from obtaining a licence to drive contrary to s.30(1) of the Road Safety Act 1986: maximum custodial penalty imprisonment for one month for a first offence and for two years for a second or subsequent offence;
charge 2 : driving an unregistered motor vehicle contrary to s.7(3) of the Road Safety Act 1986: maximum penalty a fine of $2,500 for a first offence and of $5,000 for a second or subsequent offence;
charge 3 : failing to give way to a pedestrian, contrary to reg.603(4) of the Road Safety Regulations 1988: maximum penalty a fine of $500;
charge 4 : failing to stop a motor vehicle upon a lawful request, contrary to s.59(1)(a)(i) of the Road Safety Act 1986: maximum penalty a fine of $500.
Having heard a plea for leniency, the learned judge imposed the following sentences –
count 1 – 6 months’ imprisonment;
count 2 – 12 months’ imprisonment;
charge 1 – 6 months’ imprisonment;
charges 2, 3 and 4 – an aggregate fine of $500.
The judge also ordered, under s.61(6) of the Road Safety Act 1986, that the respondent be disqualified for a period of two years from obtaining a licence under that Act.
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.
In his notice of appeal the Director of Public Prosecutions has contended in effect that each of the sentences imposed on counts 1 and 2 and summary charge 1 individually, the total effective sentence and the non-parole period, and the period of disqualification from obtaining a driving licence were all manifestly inadequate. By way of what are in essence particulars it is said that the sentencing judge failed to reflect the gravity of the offences generally, and in this case in particular; or to take sufficiently into account (a) aspects of general deterrence and specific deterrence, (b) the effects of the offences on the deceased’s family and (c) the respondent’s relevant prior convictions; and gave too much weight to factors going to mitigation
No point about the validity of the judge’s pronouncements, on either 11 or 18 February with respect to the minimum term was taken by either party below or, indeed, by the appellant on this appeal. The course taken was simply pointed out in this Court by counsel for the appellant, without eliciting comment or submission on behalf of the respondent. If the result of the appeal were to hang upon the validity of the minimum term imposed, it might be found necessary to investigate into the questions that are posed by the course taken by the judge with respect to the minimum term. As it is, the appeal may in my opinion be decided without reference to those questions for I am not in doubt that it must succeed, substantially on the footing contended for by the appellant.
The respondent left school just before turning fourteen suffering, as it is said, from mild intellectual disability and with the reading capability of a 7-year-old child. He began a panel-beating apprenticeship and, although incapable of applying himself to any formal course of study, is said to have qualified as a panel beater by reason of being engaged in the industry for at least 10 years. His life is said to have been overshadowed in recent years by the parlous health of his immediate family, which caused him stress, leading to addiction to amphetamines and later a heroin habit costing him $1000–a-day, financed by criminal activity including drug trafficking and crimes of dishonesty.
In her sentencing remarks the judge touched on the matters raised on the plea that were personal to the respondent, and his prior convictions. Her Honour referred also to the respondent’s pleas of guilty and ultimate co-operation with the police, and to a psychological assessment and report by Mr Peter Billings suggesting that the respondent, with support, might be capable of making something of his future. The mitigating factors on which the respondent could rely were, however, minimal. The judge took into consideration the explanation offered by the respondent that, upon hitting the deceased woman, he panicked and made, in an instant, a wrong and foolish decision to flee. The judge concluded that “…your prior convictions limit the leniency which I can show you today…” and mentioned the part to be played by general and special deterrence in fashioning sentences for offences of the kind the respondent had committed.
In reaching her conclusion the judge referred to many of the matters that were severally relevant to an assessment of the respondent’s culpability. Neither the sentencing remarks nor the sentences imposed appear to me, however, to draw together the various aspects of the respondent’s offending with a view to pointing up the extreme gravity of his criminal activity.
Plainly enough, circumstances giving rise to the offence of failing immediately to stop a vehicle after an accident which has caused a person’s serious injury or death may vary infinitely. Equally plainly, the example of the offence provided by the respondent’s conduct finds a natural place at the higher end of the scale of seriousness for that offence. The deliberate hit-run driver in modern life is a social pest; and the driver who injures a law-abiding pedestrian in broad daylight in a suburban street, and knows it, and yet flees the scene for selfish reasons, leaving the victim for dead, is to be seen by ordinary right-thinking people as an extremely unworthy member of their community. The only means open to the law to manifest the community’s attitude to conduct of that kind is to pass an appropriate sentence within the permissible range and to seek to deprive the offender of the means of repetition. This is done, where called for, with a view to punishing the offender and denouncing the criminal conduct, deterring the offender and others from the same or similar conduct, protecting the community and facilitating the offender’s rehabilitation, so far as that might be possible.
The hit-and-run offence committed by the respondent, although acting in a sense as a catalyst for subsequent offences, was a discrete segment of his criminal conduct on the day. Sound discretionary judgment commanded, in my opinion, that for that offence he be required to serve, and be seen to be required to serve, a sentence standing its own. That is to say, looked at in the context of all the offences upon which the respondent stood to be sentenced in the County Court, it was one the sentence for which should not appear to be wholly subsumed by any of the others. It was a sentence, in other words, that should have been given at least some measure of cumulation upon other sentences. This was necessary with a view to causing it to stand out by way of example, to the respondent and to others, of the attitude taken by the law to the conduct deserving of the sentence. Moreover, the offence was, in my opinion, properly to be regarded as meriting a sentence considerably greater than one quarter of the maximum available custodial sentence that it received. For these reasons alone the sentencing process in the County Court reveals error, justifying allowance of the appeal, setting aside the sentences imposed in that Court and re-sentencing the respondent. .
The respondent’s conduct giving rise to the second count was also substantially discrete from that giving rise to the other offences. It, too, was very serious and the judge was right to order some cumulation in respect of it.
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.
[1](1998) 164 C.L.R. 465, at 477; and see R. v. Scholes [1999]1 V.R. 337, at 347-8.
[2]R. O’Brien [1997] 2 V.R. 714, at 718, per Charles, J.A.
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.
Mr Peter Billings, the psychologist who provided an assessment of and report on the respondent for use on his plea, floated an idea – admittedly somewhat paradoxical – that it could be in the interest of the respondent and the community alike that he be prevented for a short time only from obtaining a licence so that he might, before too long, hold one legitimately. The suggestion was that this “… may well have the effect of helping him to behave more responsibly as a driver and encourage him to see himself as law-abiding and respectable in this regard and behave accordingly. If he came to value his respectable status as a driver he may well then strive to ensure that he preserve it.” Counsel for the appellant was disposed to submit that, by countenancing such an attitude, the law would be seen, as he put it, “to give up”, or (as I took him to mean) to abandon its task of protecting the community against the irresponsible motor vehicle driver. I agree with the submission to the extent that I think it unrealistic to suppose that the respondent is likely to accept the chance envisaged by Mr Billings merely by receiving a short period of disqualification: after all, he has previously been given short periods of disqualification – for example, two months in 1994 and six months in 1995 – without seizing the opportunity to redeem himself.
The public deserves to be protected against the consequences of the respondent’s incompetence as a motor vehicle driver. Of course, an order disqualifying him from obtaining a licence to drive can not be assumed to ensure the result, any more than the other disqualification orders that have been made against him have done, that he will not drive during the period of disqualification. Such an order, however, is in effect the only means available to the courts (short of ordering his incarceration during the period) of seeking to achieve that result – a result that this Court ought to be seen to pursue as an avowedly determined object. Judging by his history, I should think that the imposition on the respondent of an order for his disqualification for merely the minimum period permissible under the statute is unlikely to be seen in that light by him or by others. A considerably longer period of disqualification appears to be necessary in order to bring home to the respondent the seriously adverse consequences of his driving while the disqualification order remains in force: he should be well aware that, if he were to do so, his prospect of ever obtaining a driving licence would markedly diminish. He should be made to understand that to obtain a licence to drive a motor vehicle is a privilege and not a right; and that one of the qualifications to obtain one should be a capability of knowing and observing the legal obligations to which any motor vehicle driver is subject. Moreover, the making of an order for an extended period of disqualification, in association with an increased sentence that I purpose on summary charge 1, ought to serve to indicate to the respondent that the courts are likely to take a stringent view, if called on to pass sentence for any future infringement of s.30(1) of the Road Safety Act, thus giving him a particular incentive to observe the order, one incident of which is that he may not drive during its currency.
I now propose fresh sentences for counts 1 and 2 and summary charge 1, in place of the sentences imposed below. Unlike the learned County Court judge, I am disposed to treat the sentence for count 1 as central, and to direct cumulation upon it rather than on any other. I do so largely with a view to concentrating particular attention on count 1. Although count 2 nominally carries a higher maximum penalty than count 1, the latter is in my opinion, in the circumstances of the case, the offence that it is right to treat as bearing most heavily on the respondent’s criminal culpability. An ingredient of the offence was the loss of a human life; and the respondent’s callous behaviour surrounding the event was rebarbative: as to the use to be made of his conduct at and after the instant of commission of the offence, I refer to R. v. Scholes[3]. Because this is a Crown appeal I make allowance, as a matter of humanity, for the respondent’s being now re-submitted to the sentencing ordeal. But for that, I would regard him as worthy of sterner sentences than I now propose, namely these –
count 1 – that the respondent be imprisoned for 12 months, to be served cumulatively upon the sentences already being served;
count 2 – that the respondent be imprisoned for 12 months, six months of which are to be served cumulatively upon the sentences already being served and upon the sentence for count 1;
charge 1 – that the respondent be imprisoned for six months, three months of which are to be served cumulatively upon the sentences already being served and upon the sentences for count 1 and count 2 .
The total effective sentence of imprisonment imposed on counts 1 and 2 and charge 1 is of twenty-one months.
The minimum period (fixed pursuant to s.14(1) of the Sentencing Act 1991) to be served by the respondent in respect of the sentences already being served and the sentences now imposed before he shall become eligible for parole is fourteen months.[4]
[3][1999] 1 V.R. 337, esp. at 348-9.
[4]The substituted sentences take effect as at 11 February 2000 (R. v. Jennings [1999] 1 V. R. 352), at which date the respondent was serving his sentence imposed in the Magistrates’ Court, and s. 18(4) of the Sentencing Act 1991 had no application.
At the time he was sentenced in the County Court on 11 February last, the respondent was already subject to an order, imposed on 25 July 1997, disqualifying him for three years from obtaining a driving licence – that is to say, until 25 July 2000. The disqualification order imposed on 11 February, nominally for two years,
presumably operated from the date of its imposition: at least the respondent would be entitled to claim that it binds him only until 11 February 2002. If so, its practical effect is to disqualify him for an extra period of some 19 months, thus failing (as it would appear) to give effect to the requirement of s.61(6) of the Road Safety Act that there be disqualification for at least two years in the case of an infringement of s.61(1). I propose that an effective period of disqualification of four years be imposed; and, in order to render the extent of the respondent’s obligation clear beyond argument, the period of disqualification should be expressed to last until 25 July 2004.
I would for these reasons allow the appeal.
CHARLES, J.A.:
I agree that the Director's appeal should be allowed, and the respondent re-sentenced in the manner proposed by Tadgell, J.A., for the reasons given by his Honour.
CHERNOV, J.A.:
I also agree that, for the reasons given by Tadgell, J.A., the Director’s appeal should be allowed, and the respondent resentenced in the manner proposed by his Honour.
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