DPP v Lepore - [2000] VSCA 195

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSCA 195
Decision Date: 19 October 2000

CaseChat Overview and Summary

The case of DPP v Lepore involved the Director of Public Prosecutions appealing a sentence given to Lepore, who had been convicted of causing death by dangerous driving in a hit-and-run incident. Lepore had no valid driving license at the time and had numerous prior convictions for driving offences, reflecting a continuing attitude of disobedience to the law. The trial judge sentenced Lepore to a term of imprisonment but did not cumulate his sentences for the various offences. The Court of Appeal was tasked with determining whether the trial judge's decision to not cumulate the sentences was appropriate.

The central legal issue before the Court of Appeal was whether the trial judge erred in not cumulating the sentences for the various offences committed by Lepore. The Crown argued that the trial judge should have imposed a cumulative sentence due to Lepore's history of driving offences and his blatant disregard for the law, as evidenced by his operation of a vehicle without a license. The defence contended that the trial judge's approach was correct and that there were no grounds for appeal.

The Court of Appeal found that the trial judge had indeed erred in not cumulating the sentences. The court held that the trial judge failed to give adequate consideration to the need for cumulative sentencing due to Lepore's repeated and serious breaches of the law, including his dangerous driving and disregard for the prohibition on driving without a license. Given Lepore's extensive criminal history and ongoing defiance of the law, the Court concluded that a cumulative sentence was warranted to adequately reflect the seriousness of his conduct and to serve as a deterrent. The appeal was therefore allowed, and the matter was remitted to the trial court for re-sentencing with appropriate cumulative terms.

Orders