Gurbuz v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0063

AYTAC GURBUZ	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2024
DATE OF JUDGMENT:	2 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 189
JUDGMENT APPEALED FROM:	[2024] VCC 70 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Licence disqualification order – Whether disqualification order manifestly excessive – Where length of order 12 times statutory default – Where judge did not give reasons for length of order – Where no aggravating features – Where practical effect of order depends on date of release from custody – Appeal allowed – Disqualification order imposed from date of release from custody.

Sentencing Act 1991, ss 5(2AA)(a), 89(4), 89B.

Lefebure v The Queen (2000) 112 A Crim R 41; R v Tran (2002) 4 VR 457; Koukoulis v The Queen (2020) 91 MVR 147; Chamma v The Queen [2020] VSCA 232; Tuarae v The King [2023] VSCA 303; Bell v The Queen (2016) 77 MVR 336; Rodi v The Queen [2011] VSCA 48; R v Wootton [2002] VSCA 165; Parker v The King (2022) 102 MVR 46, discussed.

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Counsel
Applicant:		Mr J Barrera
Respondent:		Mr D Glynn
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
ORR JA:

The applicant, Aytac Gurbuz, pleaded guilty to five serious criminal offences and was sentenced as follows:[1]
[1]R v Gurbuz [2024] VCC 70 (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed robbery[2]	25 years	24 months	6 months
2	Common assault[3]	5 years	6 months	Nil
3	False imprisonment[4]	10 years	18 months	6 months
4	Armed robbery[5]	25 years	30 months	Base
5	Theft of a motor vehicle[6]	10 years	12 months	Nil
Total Effective Sentence:		3 years and 6 months’ imprisonment
Non-Parole Period:		2 years and 2 months
Pre-sentence Detention Declared:		324 days
Section 6AAA Statement:		Total Effective Sentence 5 years and 5 months’ imprisonment
Other Relevant Orders: 1. Cancellation of licence or permit to drive a motor vehicle and disqualification from obtaining a licence or permit for 36 months.

[2]Contrary to s 75A of the Crimes Act 1958.

[3]Contrary to the common law.

[4]Contrary to the common law.

[5]Contrary to s 75A of the Crimes Act 1958.

[6]Contrary to s 74(1) of the Crimes Act 1958.

He now seeks leave to appeal the order that he be disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 36 months. The sole proposed ground of appeal is that the period of 36 months is manifestly excessive.
The applicant also seeks an extension of time within which to file his application for leave to appeal. The respondent opposed the extension of time on the basis that the proposed ground of appeal was not reasonably arguable.
We would grant the application for an extension of time and grant leave to appeal. That is because the sentencing judge failed to give reasons for his imposition of a period of three years’ disqualification from obtaining a driver licence. In those circumstances, the decision invites appellate review. Furthermore, we would allow the appeal on the basis that the disqualification period was manifestly excessive.
It thus falls to this Court to re-sentence the applicant. We consider that the total effective sentence of imprisonment imposed by the judge was appropriate, and we would impose the same periods of imprisonment for the offences in question and make the same orders for cumulation. However, we would order that the applicant be disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 4 months. Pursuant to s 89B of the Sentencing Act 1991, we would order that the period of disqualification commence on the day the applicant is released from custody.

Summary of relevant facts

The offences of which the applicant was convicted all occurred on the same day, 10 February 2022. They involved two separate victims. The offences were committed with several co-offenders. The facts were not in dispute and were summarised by the sentencing judge in his Reasons.

Incident 1 – Kenny Gregory

During the morning of 10 February 2022, Kelly Flanagan (a co-offender) rang Kenny Gregory and accused him of taking a phone not belonging to him. She demanded he come to her apartment in Rose Lane, Melbourne to ‘sort this out’.
The applicant and Flanagan went to her apartment and waited for Mr Gregory. The applicant was armed with a machete, hidden behind the waistband of his pants.
Mr Gregory arrived at the apartment building and went up to the apartment using a lift. He entered the apartment, where the applicant and Flanagan were present. Mr Gregory saw the handle of the machete protruding from the applicant’s pants. The applicant said to him, ‘Where’s my phone, you know where my phone is’. Flanagan then grabbed Mr Gregory’s backpack and satchel, which contained a phone, a wallet, a battery pack and some electronic items. They were not returned to Mr Gregory. These circumstances constituted charge 1, armed robbery.
The applicant then demanded Mr Gregory go into the main bedroom, which he did. Inside the bedroom the applicant and Flanagan accused him of taking the phone. The applicant kicked Mr Gregory’s head several times and Flanagan also hit him about the head. He suffered bruising and a large cut on his lower lip. Flanagan grabbed a pair of scissors and moved them towards Mr Gregory’s throat while striking his head with her other hand. The applicant’s kicking of Mr Gregory constituted charge 2, common assault.

Incident 2 – Saffire Bondeson

Later that day Flanagan contacted Saffire Bondeson and arranged to meet. They met and Ms Bondeson drove Flanagan to the ‘Arrow on Swanston Street’ apartment building, where they went inside one of the apartments. Flanagan said she needed to use the toilet and went to a bedroom on the upper level of the apartment. Ms Bondeson followed. Flanagan then walked into a bedroom where the applicant was and yelled out to him. The applicant came out of the bedroom and pushed Ms Bondeson into a second bedroom and onto a bed. While doing so he punched her to the face. As Ms Bondeson got up and tried to leave, two other males entered the upper level with one entering the room. These circumstances constituted part of charges 3 and 4, being charges of false imprisonment and armed robbery respectively.
The applicant then tied Ms Bondeson’s hands with electrical cords while removing the machete from his pants. He said to her ‘You’re lucky this is all I’m fucking doing to you.’ Another male took her bags, jewellery and other items including a MacBook Pro, an iPhone, bank cards and car keys. The applicant and that male then left the room, but held the door closed so that Ms Bondeson could not leave.
The applicant held Ms Bondeson against her will for some time while threatening and assaulting her. He moved her into the other bedroom and said: ‘log into your banking now and transfer me money before I slice you from ear to ear.’ He removed the cords which bound Ms Bondeson and, while holding the machete to her throat, demanded she transfer $20,000 to him. In fear, she transferred $3,000 in two instalments into the account of one of the other males.
The applicant then asked Ms Bondeson how much her car was worth, saying he would take it. He and the others, including Flanagan, took her possessions. As the applicant was leaving the apartment Ms Bondeson tried to follow. He said to her: ‘I don’t know where the fuck you think you’re going, get your arse back into that bedroom.’ She obeyed. These circumstances mark the end of the circumstances that constituted charges 3 and 4.
Using Ms Bondeson’s car keys, the applicant drove her car from the carpark with Flanagan sitting in the back seat. This constituted charge 5, theft of a motor vehicle. At the time of the applicant’s sentencing, Ms Bondeson had not recovered her motor vehicle.

The co-offenders

The applicant’s two known co-offenders were Flanagan and Scott Evans.
Flanagan was sentenced on the same five charges on 3 April 2023. She was sentenced to a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 2 months. Her licence was cancelled and she was disqualified from obtaining a driver licence for 3 years.[7]
[7]R v Flanagan [2023] VCC 511.
Scott Evans was sentenced on 7 September 2023 on charges of robbery, false imprisonment and committing an indictable offence whilst on bail. These charges were for the second incident (charges 3–5 for the applicant). Evans was sentenced to 33 days’ imprisonment with an 18-month community correction order.[8]
[8]R v Evans [2023] VCC 1614.

The judge’s reasons for sentence

The judge sentenced the applicant as set out in the sentencing table above. His Honour provided detailed reasons directed to the sentences of imprisonment, which included consideration of:
(a)the applicant’s criminal history and personal circumstances;
(b)a victim impact statement provided by Ms Bondeson;
(c)the nature and gravity of the offending;
(d)the applicant’s prospects of rehabilitation — including his risk of reoffending, which was described as ‘moderate’;[9]
(e)the principles set out in Bugmy v The Queen[10] and R v Verdins,[11] which required some moderation of sentence;
(f)the sentencing purposes of just punishment, general and specific deterrence, rehabilitation, protection of the community and the denunciation of the offending;
(g)the applicant’s plea of guilty;
(h)the issue of parity with Flanagan’s sentence.
[9]Reasons, [70].
[10](2013) 249 CLR 571; [2013] HCA 37.
[11](2007) 16 VR 269; [2007] VSCA 102.
In relation to parity, after considering the similarities and differences between Flanagan and the applicant, the judge said this:
The fact you are guilty of the same offences committed by Ms Flanagan and arising out of the same circumstances does not necessarily invoke the need for parity. The gravity of your offending is greater than that of Ms Flanagan with the consequent effect on Ms Bondeson. Ms Flanagan has a serious criminal history, you do not. You rely on the effects of your impaired mental functioning, Ms Flanagan cannot. When one balances these matters out, sentencing you in the same manner as I sentenced Ms Flanagan has merit.[12]
[12]Reasons, [116].
The judge did not provide any reasons for disqualifying the applicant from obtaining a driver licence for three years.
No submissions were made to the judge on the plea concerning the issue of disqualification. Nor had any evidence been provided concerning whether the applicant, upon his release from prison, would be dependent on holding a driver licence for the purposes of employment or other activities relevant to his rehabilitation. Rather, on the plea the applicant had sought, in effect, that he be subjected to the same sentence as Ms Flanagan (which sentence included a period of disqualification of 36 months).

The practical effect of the applicant’s and Flanagan’s disqualification periods

As noted above, the applicant was ordered to serve a total effective sentence of 3 years and 6 months’ imprisonment, with a non-parole period of 2 years and 2 months. By reason of pre-sentence detention and his entitlement to ‘emergency management days’,[13] the effect of those orders is that:
(a)if the applicant serves his full term, he will be released from custody on or around 21 August 2026;
(b)if the applicant is released on the earliest date on which he is eligible for parole, he will be released from custody on or around 21 April 2025.
[13]See s 58E of the Corrections Act 1986.
The applicant was also disqualified from driving by the judge’s order dated 12 January 2024. The 36 months specified in that order ends on 11 January 2027.
Thus:
(a)if the applicant serves his full term of imprisonment, the practical effect of the disqualification order will be that he is disqualified from driving for approximately four and a half months after he is released from custody;
(b)on the other hand, if he is released from custody on the earliest date on which he is eligible for parole, the practical effect of the disqualification order will be that he is disqualified from driving for approximately 20 and a half months after he is released from custody; and
(c)if he is released sometime between the earliest and latest release dates, the practical effect of the disqualification order will be different again.
In comparison, Flanagan was ordered to serve the same sentence of imprisonment and also received the same disqualification period. However, we were informed that by reason of her earlier date of sentence and her pre-sentence detention:
(a)if Flanagan serves her full term, she will be released from custody on or around 12 August 2025;
(b)if Flanagan were to have been released on the earliest date on which she was eligible for parole, she would have been released from custody on or around 12 April 2024.[14]
[14]This Court was not informed whether Flanagan has been released from custody on parole.
Flanagan was also disqualified from driving for 36 months. The period of that disqualification order ends on 3 April 2026.
Thus:
(a)if Flanagan serves her full term of imprisonment, the practical effect of the disqualification order will be that she is disqualified from driving for approximately seven and a half months after she is released from custody;
(b)on the other hand, if she had been released from custody on the earliest date on which she was eligible for parole, the practical effect of the disqualification order would have been that she was disqualified from driving for approximately 23 and a half months after she was released from custody; and
(c)if she is released sometime between the earliest and latest release dates, the practical effect of the disqualification order will be different again.
As can be seen, the practical effect on Flanagan is approximately three months more than the practical effect on the applicant.

Consideration

Because the applicant was convicted of theft of a motor vehicle (charge 5), s 89(4) of the Sentencing Act required the judge either to suspend the applicant’s driver licence or to cancel the applicant’s driver licence and disqualify him from obtaining a licence for a specified period.[15] The decision concerning whether to suspend or cancel, and the relevant period of time for suspension or disqualification, was discretionary. Appellate review is thus subject to the principles set out in House v The King.[16]
[15]If no period had been specified by the judge, then the period would have been three months: Sentencing Act, s 89(5).
[16](1936) 55 CLR 499; [1936] HCA 40.
As noted above, the sole ground of appeal was that the period for which the applicant was disqualified from obtaining a driver licence was manifestly excessive. No other, more specific, error was alleged. To succeed on this ground the applicant must show that the period of disqualification selected by the judge in the exercise of his discretion was ‘wholly outside the range of sentencing options available’.[17] As this Court has often observed, this is a ‘stringent requirement’, which is difficult to satisfy.[18]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen(1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[18]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Nguyen v The King [2023] VSCA 212, [21] (Beach and Walker JJA).
The relevant considerations when determining the appropriate period for which an offender should be disqualified from obtaining a driver licencewere not in dispute. They are as follows:[19]
(a)the need for the period of disqualification itself to serve its part as a punitive element in the context of the total punishment imposed;
(b)the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender; and
(c)considerations of personal hardship, including the offender’s dependency on a driver licence, in particular to ensure that his or her prospects of rehabilitation are not unduly hampered.
[19]Lefebure v The Queen (2000) 112 A Crim R 41, 44 [7]–[8] (Tadgell JA, Chernov JA agreeing at 46 [15], Hedigan AJA agreeing at 46 [16]); [2000] VSCA 79 (‘Lefebure’); R v Tran (2002) 4 VR 457, 469–70 [38]–[40] (Callaway JA, Buchanan JA agreeing at 470 [41], Vincent JA agreeing 470 [42]); [2002] VSCA 52; Koukoulis v The Queen (2020) 91 MVR 147, 150 [18] (Whelan JA, Priest JA agreeing at 151 [25]); [2020] VSCA 19 (‘Koukoulis’).
In relation to the first of those — the punitive aspect — Tadgell JA said as follows in Lefebure:
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.[20]
[20]Lefebure (2000) 112 A Crim R 41, 44 [7] (Tadgell JA, Chernov JA agreeing at 46 [15], Hedigan AJA agreeing at 46 [16]); [2000] VSCA 79 (emphasis added).
In relation to the third aspect — the offender’s dependency on a motor vehicle — this could include considerations such as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment, or for obtaining medical treatment.[21] We consider that this aspect is not confined to matters connected with the offender’s rehabilitation.

The parties’ submissions

[21]Lefebure (2000) 112 A Crim R 41, 44 [8] (Tadgell JA, Chernov JA agreeing at 46 [15], Hedigan AJA agreeing at 46 [16]); [2000] VSCA 79.

The applicant submitted that his criminal history was not such as to warrant a disqualification period of three years. He submitted that there were no aggravating factors relating to the manner of his driving that might have supported a lengthy disqualification period:
(a)only a single vehicle was stolen, not multiple vehicles;
(b)he had not engaged in unlicensed, suspended or disqualified driving;
(c)he had not driven an unroadworthy vehicle;
(d)alcohol and/or drugs were not involved;
(e)he was not knowingly fatigued or distracted;
(f)he had not driven at excessive speed or disobeyed a traffic signal;
(g)he had not engaged in careless or dangerous driving or failed to tailor his driving to the road or traffic conditions.
He also submitted that there were notable recent cases involving ‘arguably more serious offending (relevant to licence disqualification) where licences were disqualified for shorter periods’. He referred to Chamma v The Queen,[22] Tuarae v The King[23] and Bell v The Queen.[24]
(a)In Chamma, one of two co-offenders, with a significant relevant criminal history, was convicted of six charges of theft of a motor vehicle, and was disqualified from obtaining a licence for a period of 12 months.
(b)In Tuarae the offender, who was a passenger, but was nonetheless involved in the theft of two motor vehicles, was disqualified from obtaining a licence for a period of three months (being the statutory default period).
(c)In Bell, which did not involve theft of a motor vehicle, but three charges of dangerous driving causing serious injury, the offender was disqualified from obtaining a licence for a period of 18 months (being the statutory minimum period for that offence). He had been drinking for 12 hours, was driving on a suspended licence, was exceeding the speed limit, had a blood alcohol concentration of 0.063 and had drugs in his system. He drove through an intersection and crashed into a fence, causing the vehicle to become airborne and collide with a brick wall. He caused serious injuries to his three passengers.
[22][2020] VSCA 232 (‘Chamma’).
[23][2023] VSCA 303 (‘Tuarae’).
[24](2016) 77 MVR 336; [2016] VSCA 203 (‘Bell’). We note that in none of those three cases was the length of the disqualification order in issue on the appeal.

The applicant submitted that these cases demonstrated that, even where the offending was more serious, courts have imposed disqualification periods that were well below three years. He thus submitted that the three year disqualification period imposed in his case was ‘out of line with current practices’.
The applicant also pointed out that the judge did not give any reasons for imposing a disqualification period of three years. He further pointed out that that period was 12 times the statutory default period. He submitted that in those circumstances, ‘the absence of even brief remarks on licence disqualification adds force to the argument that the relevant principles, in particular the objective gravity of offending, just punishment and the rehabilitation of the applicant were not properly applied, resulting in a manifestly excessive licence disqualification period’.
In oral argument, the applicant submitted that, when regard is had to the practical effect of the period of disqualification on him, the effect of the judge’s order is that if the applicant serves the entirety of the sentence of imprisonment imposed upon him, he will be disqualified from driving for a period of approximately four and a half months; but if he is released earlier, the period of disqualification could be up to around 21 months (which would be the period after his earliest release date). The applicant contended that a practical period of disqualification of around 21 months was manifestly excessive.
The respondent accepted that, in assessing whether the disqualification period was manifestly excessive, this Court could have regard to the practical effect of the judge’s order on the applicant and thus could have regard to the period of the disqualification that would operate after the applicant had been released from custody. The respondent also accepted that, in so doing, this Court could consider the practical effect of the disqualification order in circumstances where the applicant was released prior to the expiration of his head sentence, for example by reason of being granted parole. Thus the respondent accepted that this Court could have regard to the fact that the judge’s order could, depending on the course of events, result in an approximately 21-month period of post-custody disqualification. However, the respondent submitted that, in this case, which was ‘a serious example’ of theft of a motor vehicle, a period of disqualification of around 21 months was not manifestly excessive.

Was the period of disqualification manifestly excessive?

This Court has, in several cases, set aside disqualification orders made by a sentencing judge where there have been no reasons given for the period selected by the judge. In Rodi v The Queen, which concerned disqualification following conviction for dangerous driving involving death and for three counts of dangerous driving causing serious injury, Ashley JA said as follows:
The judge did not indicate in the present case what motivated the order which she made. In Lefebure, Tadgell JA considered that such silence was indicative of error. There is a point beyond which one cannot go in seeking to uphold a judge’s finding which is unsupported by some expressed reasons — which is not to say that an order of the kind now under consideration could not be cross-referenced to matters otherwise bearing upon sentence.
In the present case, the absence of reasons, together with the order made, has persuaded me that the judge did err. It was one thing to require the applicant to undergo a period of licencedisqualification after release. To so order would give emphasis to its punitive function. It may also be said that the period of disqualification was the minimum period prescribed by the statute. But the effect of the order was to impose that minimum period entirely from date of release, and that in a case of a man whose driving and other record, both before and after the commission of the instant offences, was blameless.[25]
[25][2011] VSCA 48, [75]–[76] (Harper JA agreeing at [80], Hargrave AJA agreeing at [81]) (‘Rodi’). We note for completeness that, in Lefebure, the sentencing judge had referred to the question of disqualification, but had not made reference to the matters that the authorities indicated ought to be considered.
More recently, in Koukoulis v The Queen (which, like Rodi, concerned disqualification following conviction for dangerous driving involving death), Whelan JA, with whom Priest JA agreed, said this:
In the particular circumstances of this case, and notwithstanding that a year of the period of disqualification runs while the applicant is in custody, I have concluded that the period of disqualification imposed here was manifestly excessive.
In terms of punishment, in my opinion the combination sentence did sufficiently punish the applicant and, if the disqualification was intended to have an additional punitive effect, I would have expected the sentencing judge to expressly refer to that.
It does not seem to me that a period of disqualification was necessary in order to protect the community from the applicant’s driving. The applicant has an otherwise unblemished driving record.
Whilst the effect on the applicant’s rehabilitation may not be as significant as in some other cases, the inability to obtain a licence will be a burden to him both in his employment and in meeting his obligations under the community correction order.
The period of disqualification imposed here is double the minimum period required by the statute. As was the position in Rodi, I am fortified in the conclusion that there has been an error by the absence of any expressed reason for the imposition of that period of disqualification.[26]
[26]Koukoulis (2020) 91 MVR 147, 150 [19]–[23] (Priest JA agreeing at 151 [25]); [2020] VSCA 19.
In that case, this Court set aside a period of disqualification of three years and imposed a period of disqualification of 18 months, which was the statutory minimum period after a conviction for dangerous driving causing death.
In this case, the judge failed to give any reasons for the selection of 36 months as the appropriate period of disqualification. It appears that both the judge’s failure to do so, and the period selected, are explicable by the way that the plea proceeded — as noted above, the applicant in effect sought the same sentence as had been imposed on the co-offender; and that sentence included a disqualification period of 36 months. Be that as it may, the failure of the judge to give reasons for the period of disqualification, while not itself an appealable error, can nonetheless support a conclusion that the period selected involved error. This was the manner in which the applicant sought to rely on the absence of reasons. As we indicated earlier, in this case we consider the failure to give reasons warrants a grant of an extension of time and the grant of leave to appeal.
Putting to one side the absence of reasons, the real question for this Court is whether a disqualification period of three years was open to the judge in the circumstances of this case. In that context, it is necessary to consider the three matters relevant to that question, as explained above, namely:
(a)punishment (including the question of parity with the sentence imposed on Flanagan);
(b)protection of the public; and
(c)the effect of disqualification on the applicant.
The applicant relied on the fact that the period of disqualification was 12 times the statutory default period. That may be accepted, but alone it does not require the conclusion that the period was manifestly excessive. That is because, in some cases, such a period might expire prior to the offender’s earliest release date, and thus never have any practical effect on an offender, given that he or she cannot drive a motor vehicle while in custody. In such circumstances, we do not think it could be said that such a period was manifestly excessive. Of greater relevance is the practical effect of the disqualification order on the offender — that is, the period of time during which the offender will be subject to disqualification after release from custody. That is, in assessing whether the disqualification period was manifestly excessive, it is appropriate to consider not only the formal period of disqualification, but also its practical effect on the applicant. The respondent accepted as much.
In the present case, however, there are difficulties with undertaking that analysis, because the period of time the applicant will, after his release from custody, be subject to the disqualification order is unknown, and at present unknowable. That is because the practical effect of the disqualification order on the applicant will vary depending upon when he is released from custody. As explained above, if he is released on the earliest date he is eligible for parole, he will be disqualified from driving while in the community for approximately 20 and a half months; whereas if he is released on his latest release date, he will be disqualified from driving while in the community for approximately four and a half months. And if he is released sometime between the earliest and latest release dates, the practical effect of the disqualification order will be different again. In those circumstances, as the respondent accepted, it is appropriate for this Court to consider the practical effect of the disqualification order by reference to the longer of those two periods — that is, by reference to the practical effect should the applicant be released on his earliest release date, namely approximately 20 and a half months.
We observe that, as the respondent again accepted, to consider the practical effect in that way, on an appeal, is not to transgress the terms of s 5(2AA)(a) of the Sentencing Act. That section prevents a court, in sentencing an offender, from having regard to the possibility or likelihood that the length of time an offender will spend in custody will be affected by executive action (including a grant of parole). But this Court, when considering whether a particular sentence is manifestly excessive, is not a court that is sentencing an offender and is thus not constrained by s 5(2AA)(a) in its analysis of that question. Thus this Court is permitted to consider the possibility of parole (and the impact of emergency management days) when evaluating the practical effect of a disqualification order that has been made by a sentencing judge.
The question thus becomes whether, in this case, a period of disqualification of 20 and a half months post-custody is manifestly excessive, considered in light of the sentence as a whole and the circumstances of the offending.
In our opinion, the period of disqualification was manifestly excessive. Our reasons for so concluding are as follows:
(a)The order, considered by reference to its practical effect on the applicant, was seven times the statutory default period.
(b)The offending in question, while serious, was not at the highest level of seriousness, and lacked various aggravating circumstances.
(c)The applicant had no relevant criminal history, of either theft of a motor vehicle or driving offences, that might justify such a lengthy period of disqualification. Thus protection of the community assumes a lesser role than might otherwise be the case.
In circumstances where the term of imprisonment imposed for theft of a motor vehicle was to be served entirely concurrently with the other sentences, it was open to the judge to impose some period of disqualification that had a real practical effect on the applicant by operating after his release from custody. Nonetheless, we cannot see a basis for selecting such a lengthy period of disqualification as the punitive element for the offence of theft of a motor vehicle.
Finally, the judge’s failure to give reasons for the imposition of a disqualification period of 36 months, whilst perhaps explicable on the basis of the manner in which the plea was conducted, nonetheless provides support for the conclusion that the disqualification period was manifestly excessive.[27]

The re-exercise of the sentencing discretion

[27]See Rodi and Koukoulis, discussed above.

Error having been established, the sentencing discretion is re-opened.
Because the disqualification period operated as part of the punishment for the offence of theft of a motor vehicle, we consider that the entirety of the sentencing discretion is re-opened. However, in this case we consider that the sentences of imprisonment imposed by the judge were appropriate in the circumstances of this offending, and no submission to the contrary was made by either party. We thus consider it appropriate to set aside only the order imposing a period of disqualification.
In determining what period of disqualification ought to be imposed in lieu of the period imposed by the judge, it is necessary for us to consider for ourselves:
(a)the extent to which disqualification is necessary to punish the applicant (including the question of parity with the disqualification imposed on Flanagan);
(b)the need for protection of the public; and
(c)the effect of disqualification on the applicant, including but not limited to its effect on his prospects of rehabilitation.
Turning first to the question of punishment, in our view it is appropriate in the present circumstances to impose a period of disqualification that will extend beyond the applicant’s earliest release date as part of the punishment for the applicant’s offending under charge 5. As the authorities reveal, and as the applicant accepted, it may be the case that it is appropriate for such an order to extend beyond the date of the offender’s release from custody. Indeed, it is difficult to see how such an order could have a punitive effect if it did not so extend. As O’Bryan AJA said in R vWootton:
The legislature must have intended that disqualification beyond a term of custody for a reasonable time should be a real penalty in most cases. As Ormiston JA said in Birnie: ‘Ordinarily it will only be on his release that the disqualification will “come home” to him.’[28]
[28][2002] VSCA 165, [27] (Phillips JA agreeing at [1], Callaway JA agreeing at [2]). See also R v Franklin (2009) 52 MVR 544, 550 [36] (Warren CJ, Redlich JA agreeing at 551 [42], Forrest AJA agreeing at 551 [43]); [2009] VSCA 77.
Furthermore, the applicant’s offending in relation to the theft of the motor vehicle was serious. It occurred in aggravating circumstances, in the context of the armed robbery and false imprisonment offences, whereby the applicant used the machete to threaten Ms Bondeson in order to obtain her car keys.[29] It was the applicant who asked Ms Bondeson about the value of her car, and directed her to remain in the bedroom of the apartment during the theft. He was also the driver of the vehicle. Yet, notwithstanding these matters, the sentence on charge 5, of 12 months’ imprisonment, falls to be served wholly concurrently with the base sentence.[30] There was thus no distinct punitive element effected by the imposition of that sentence. In those circumstances we consider it appropriate for the disqualification order under s 89(4) to provide for a distinct punitive element in relation to that offending.
[29]We accept that care must be taken not to impose double punishment on the applicant for the armed robbery and false imprisonment charges. Nonetheless, those circumstances are relevant to the proper characterisation of the seriousness of the offending.
[30]Sentencing Act, s 16(1). The sentencing judge did not ‘otherwise direct’ in relation to charge 5.
We have also given some weight to the question of parity with the disqualification period imposed on Flanagan. As discussed above, she had been subject to an order for cancellation and disqualification for the same period of 36 months. However, the practical effect of that order was approximately three months greater in her case. While, in our view, there was nothing in the offending itself that supported any different period of disqualification as between the applicant and Flanagan, we consider that the differences in her prior offending in relation to motor vehicle offences[31] justifies a lesser practical effect of disqualification in relation to the applicant.
[31]We were informed that Flanagan had previously been disqualified from obtaining a driver licence or had her driver licence suspended on four occasions, three of which involved thefts of a motor vehicle.
Turning next to the protection of the public, we accept that the applicant’s offending — relevantly, the theft of Ms Bondeson’s motor vehicle — was his first offending of this kind. We also accept that, with one exception, it was not alleged to involve any of the types of aggravating circumstances he identified.[32] The exception concerns drug use: the applicant was on methylamphetamine and GHB at the time of the offending. It was serious offending, from which the public is entitled to be protected. Disqualification from obtaining a driver licence for a period extending beyond the applicant’s earliest release date is thus supported by the need for protection of the public from offending of this kind.
[32]See paragraph 35, above.
Turning thirdly to the effect of a disqualification order on the applicant, we note that the applicant’s counsel made submissions about the effect upon the applicant of a period of disqualification. He pointed to the following matters:
(a)the potential effects on the applicant’s prospects of employment, noting that in the past he had been employed as a software engineer and had run a kebab shop;
(b)the impact on the applicant’s ability to care for his elderly parents, with whom he would reside upon release from custody, to assist in their daily care (such care currently being provided by his sister, who does not reside with them and is a single parent);
(c)the impact on the applicant’s ability to see his children, who live 45 minutes away from his parents’ home by car, and with whom the applicant hopes to rebuild his relationship upon his release from custody (although he informed the Court that there is an intervention order in relation to his contact with the children’s mother);
(d)the applicant’s ability to undertake further study in the applied sciences upon his release; and
(e)the applicant’s ability to attend appointments if released on parole.
However, there was no evidence, either before the judge or before this Court, about any of those matters. The applicant accepted as much and conceded that these matters could be given only limited weight. We agree. In our opinion it is not appropriate for this Court to assume, in the absence of evidence, that an offender will be dependent upon a driver licence for matters such as obtaining or staying in employment, or undertaking further study. In the present case there was no evidence about why the applicant could not avail himself of the use of public transport to travel for any of the identified purposes. Notwithstanding the absence of evidence, we have given limited weight to the matters raised by the applicant in his submissions.
Finally, we consider it is appropriate to make some reference to the comparable cases upon which the applicant relied. We have done so with some caution, given that he identified only three comparable cases, only two of which involved the offence of theft of a motor vehicle (Chamma and Tuarae).[33] That circumstance raises a real doubt as to whether there is any ‘current sentencing practice’ at all to which regard might properly be had.[34] We also accept the respondent’s submission that the limitations of current sentencing practice are even more pronounced in relation to an order under s 89 of the Sentencing Act, where ‘variables such as pre-sentence detention, the start date of a s 89 order, or the type of sentence imposed can have a significant impact on the practical effect of a licence cancellation and disqualification order, and thus what, in the circumstances of each case, will be a period of disqualification that is within range’.[35]
[33]Bell concerned disqualification after conviction for the offence of dangerous driving causing serious injury, for which the minimum statutory period of disqualification was 18 months. The judge imposed a period of 18 months.
[34]Liddell v The King [2024] VSCA 18, [44] (McLeish and Walker JJA).
[35]Citing Parker v The King (2022) 102 MVR 46, 56 [44] (Beach JA); [2022] VSCA 207.

We do not consider that the cases the applicant identified demonstrate a current sentencing practice in relation to disqualification from obtaining a driver licence. We also note Niall JA’s observation, in Le v The Queen, that ‘even where there is a discernible pattern, current sentencing practicedoes not set the limits of the sentencing discretion’.[36] We have nonetheless had regard to the periods of disqualification imposed in Chamma and Tuarae in reaching our conclusion as to the appropriate period of disqualification in this case.
[36][2021] VSCA 220, [17] (Priest JA agreeing at [1]).
As noted above, we have concluded that it is appropriate to make an order disqualifying the applicant from obtaining a driver licence that operates after his release from custody. In order to achieve some certainty about the practical effect of the order on the applicant, we consider it appropriate to order that the period of disqualification commence on the day the applicant is released from custody. The respondent accepted that an order in those terms is open to the Court pursuant to s 89B of the Sentencing Act, a proposition that has been accepted by this Court.[37] An order in those terms was made in R v Kalwig[38] and R v House.[39]
[37]Rodi [2011] VSCA 48, [73] (Ashley JA, Harper JA agreeing at [80], Hargrave AJA agreeing at [81]). See also R v Williamson (2009) 21 VR 330, 339 [72] (Neave and Weinberg JJA); [2009] VSCA 21. That conclusion is consistent with the Explanatory Memorandum for the bill that introduced the relevant provision into the Sentencing Act. It states that ‘the period of disqualification may be expressed to commence upon the occurrence of some future event, for example, upon the offender being first released from custody, whether on parole or on the expiration of his or her sentence’: Explanatory Memorandum, Crimes (Dangerous Driving) Bill (Vic), 4.
[38][2009] VSC 373, [36] (Weinberg JA).
[39][2021] VSC 419, [57] (Taylor J).

Conclusion

Synthesising all of the above matters, we consider that a period of disqualification of 4 months from the date the applicant is released from custody is appropriate. That period of time reflects our assessment of the punitive role the disqualification order is intended to play, the need for protection of the community, and the personal hardship that will be experienced by the applicant as a consequence of the disqualification.
In light of the above, we will grant the applicant’s application for an extension of time, grant leave to appeal and allow the appeal. We will set aside the judge’s order imposing a disqualification period of 36 months and, in lieu thereof, impose a disqualification period of 4 months, such period to commence on the day the applicant is released from custody. All other orders made by the County Court will be affirmed.
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[2024] VSCA 189

2 September 2024