On August 12, 1982, following a jury trial in the Haverhill Division of the District Court Department, the defendant, Stephen Gresek, was found guilty of operating a motor vehicle while under the influence of an intoxicating liquor. A judge of the District Court sentenced the defendant to thirty days in a house of correction; ten days committed time, and the balance suspended for one year. The defendant filed an appeal with the Appeals Court and also obtained from that court a stay of his sentence pending *824the determination of his appeal.1 This court granted the application of the Commonwealth for direct appellate review.

The defendant presents three arguments in support of his contention that the trial judge committed reversible error in imposing his sentence. Initially, the defendant claims that the judge, in determining the penalty to impose for the conviction, improperly considered the defendant’s alleged perjury while testifying in his own behalf. The defendant further argues that the judge, in imposing the sentence, unconstitutionally retaliated against the defendant for invoking his right to a trial de nova before a jury following his bench trial conviction. Finally, the defendant maintains that the judge, in sentencing, impermissibly considered the defendant’s alleged silence during his prearrest confrontation with police officers, in violation of the defendant’s constitutional right to remain silent.

The Commonwealth has asked us to adopt the principle of United States v. Grayson, 438 U.S. 41 (1978), which permits trial judges to use as one factor in sentencing their belief that a defendant has lied while testifying. The Commonwealth also contends that, as evidenced by the record, the judge neither retaliated against the defendant for exercising his right to a de nova trial nor punished the defendant for his silence during the encounter with the police officers.

In accordance with our decisions rendered today in Commonwealth v. Coleman, ante 797 (1984), and Commonwealth v. Souza, ante 813 (1984), we conclude that a judge cannot consider a defendant’s alleged perjury while testifying in determining the sentence for a crime. Since the record abundantly demonstrates that the judge based Gresek’s penalty on his belief that the defendant lied under oath, we vacate the sentence and order that the defendant be resentenced.

*825Having so concluded, we need not consider the other contentions of the defendant. We note, however, that the record does not demonstrate that the judge retaliated against the defendant for invoking his right to a trial de nova, or that the judge penalized the defendant for his alleged silence during the confrontation with the police officers.2

We summarize the facts that are relevant to the issues to be considered on direct appellate review. Additional details concerning the judge’s statements on the record will be referred to in our discussion of the specific allegations of error. The defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor, operating an unregistered and uninsured motor vehicle, and unlawfully attaching license plates. The defendant admitted to sufficient facts for a finding of guilt as to the latter charges. Following a bench trial at the Lawrence Division of the District Court Department, he was found guilty of driving a vehicle while intoxicated. The judge imposed a fine of $125. See G. L. c. 90, § 24.3 The defendant invoked his right to appeal by way of a trial de nova in the District Court to a jury of six. See G. L. c. 218, § 27A.

During the jury trial, there was evidence of the following facts. On May 17, 1982, at approximately 1:30 a.m., two Andover police officers observed the defendant’s automobile occasionally veering into the opposite travel lane and then back into the correct lane. The officers followed the vehicle until it turned into a driveway. Two people alighted from the vehicle and headed toward a house. The officers were unable to determine which of the two persons had been the *826operator of the vehicle. When one of the officers approached the vehicle with a flashlight, the defendant appeared from behind the house with his arms raised, identified himself, and said “That’s my car.” The defendant indicated that the other person, who was behind the house, was his friend.

The officer who spoke with the defendant noticed that he smelled of alcohol. The police officers testified that one of them asked the defendant whether he was the operator of the vehicle, and that the defendant replied affirmatively.

The officers testified that following the conversation with the defendant they conducted a pat-down search of the defendant, asked him for his registration, and conducted field sobriety tests on him. After forming an opinion based on their observations both before and during the tests that Gresek had been operating a vehicle while under the influence of alcohol, the officers arrested the defendant.

At trial, the defendant testified both on direct and on cross-examination that he had not been driving the vehicle and that he did not state to the officers that he had been driving. He testified that his friend had been driving the vehicle.4 Following the cross-examination, the judge excused the jury. The judge then asked the defendant whether he understood that he was under oath, and the defendant replied that he did. After the judge questioned the defendant concerning his previous testimony, the defendant reiterated that he had not been operating the vehicle, nor had he given such information to the police officers.5

When the jury returned a verdict of guilty, the judge sentenced the defendant to thirty days in a house of correction; ten days committed time, and the balance suspended for one year. The defense counsel questioned the severity of the sentence imposed for a first vehicular offense in the absence of a criminal record. Repeatedly, the judge expressed his belief that the defendant had lied flagrantly in the course of *827testifying, and that these incidents of perjury warranted a harsh punishment.6 Specifically, the judge disbelieved the defendant’s claims that when the police officers observed his vehicle he was not driving, and that he had never told the officers that he was driving at that time. In refusing to consider a less severe penalty, the judge told defense counsel that the defendant’s false testimony constituted a “mockery” of the judicial system.

1. Judicial vindictiveness. In support of his contention that the trial judge retaliated against him for exercising a statutory right of de nova appeal, the defendant notes particular comments made by the judge during the sentencing hearing. We quote these remarks in the margin.7

*828A judge violates principles of due process by penalizing a defendant for invoking a statutory right to appeal a conviction. North Carolina v. Pearce, 395 U.S. 711, 724 (1969). Commonwealth v. Tirrell, 382 Mass. 502, 507-508 (1981). There is, however, no absolute prohibition on a judge’s imposing a harsher sentence when a defendant has appealed a conviction and has been reconvicted. North Carolina v. Pearce, supra. The Commonwealth argues that the only reasonable inference to be drawn from the judge’s statements is that he was outraged at the defendant’s alleged perjury on the witness stand. We interpret all of the judge’s remarks which implied that the defendant had misused, or taken advantage of, the judicial system, as expressing his irritation over the defendant’s alleged perjury while testifying. When the judge stated that the defendant’s conduct was offensive to the judicial system, he was equating his behavior to that of other defendants who had lied on the stand. Furthermore, the judge prefaced his comments, that the defendant had “take[n] advantage of” and “made a mockery of the judicial system,” by stating that the defendant had lied flagrantly on the witness stand. We therefore agree with the Commonwealth’s contention that no reasonable interpretation of the judge’s statements evinces a motive by the judge to punish the defendant for exercising his right to a trial de nova.

2. Pre-arrest silence. The defendant argues that, at the disposition hearing, the judge improperly inferred the defendant’s guilt and enhanced his sentence based, in part, on the defendant’s claim that he had not exculpated himself *829when questioned by the police officers. According to the defendant, the judge penalized him for invoking his constitutional right to remain silent. We need not discuss this claim at length, as it is not borne out by a reading of the transcript. The error committed by the judge is not on this ground, but in his insistence on punishing the defendant more severely because he believed that the defendant had lied while testifying at trial. The judge’s remarks concerning the defendant’s alleged silence during the confrontation with the police officers were an integral part of the judge’s repeated assertions that the defendant had perjured himself by testifying that when the police observed his vehicle it was his friend, and not he, who was operating the vehicle. In this context, the judge stated: “We’ve got the statement of the police officer and got the fact that he didn’t tell any one of at least three police officers that he wasn’t driving. Now, even if I had some doubt about the police officer’s statement, which I don’t, I can’t believe that a Defendant with a .09 reading didn’t have brains enough to tell the police that he wasn’t driving. ... He certainly would know that if he was being accused of driving under the influence that he would certainly speak up and say, I wasn’t driving.” (Emphasis added.)

The judge’s remarks clearly indicate that he both disbelieved the defendant’s testimony and considered as true the officer’s claim that the defendant had told him that he was driving the vehicle. It is thus illogical to conclude that the judge enhanced the defendant’s sentence, based on his allegation of silence when the judge actually disbelieved the defendant’s testimony and concluded that the defendant had admitted to operating the automobile.

We now turn to the issue whether reversible error occurs when a trial judge imposes sentence for a substantive offense based, in part, on a belief that the defendant committed perjury at trial.

3. Improper sentencing procedure. The defendant contends that the judge committed reversible error by considering the defendant’s alleged perjury in determining the *830sentence to impose for the misdemeanor conviction. The Commonwealth concedes that the judge, in sentencing, took note of the defendant’s alleged prevarication on the witness stand. The Commonwealth, however, asks us to follow the principle enunciated in United States v. Grayson, 438 U.S. 41 (1978), which permits a judge to determine whether a defendant has lied flagrantly under oath, and to consider this factor as probative of a defendant’s societal attitudes and chances for rehabilitation. See id.

As a matter of public policy, and in accordance with our State law, we have decided today in two other decisions, that a judge cannot consider the alleged perjury of a defendant in imposing a sentence. See Commonwealth v. Coleman, supra at 808; Commonwealth v. Souza, supra at 818. We need not repeat our discussion of our reasons here. In both the Coleman and Souza cases a judge determined that the defendants had committed perjury on the witness stand and considered this as a factor in imposing his sentences for separate, substantive offenses. Commonwealth v. Souza, supra at 815. Commonwealth v. Coleman, supra at 799-800. Commonwealth v. Murray, 4 Mass. App. Ct. 493, 495-496 (1976).8

Guided by the principles we have stated today in Coleman and Souza, we conclude that the trial judge substantially prejudiced the defendant’s rights by basing his penalty on the assumption that the defendant had perjured himself at trial.9 The record clearly demonstrates that the judge in *831this case sentenced the defendant to a term in jail because of his belief that the defendant had lied on the witness stand. The judge definitively stated: “ I think that on the evidence [the defendant] was lying like hell,” there was “[n]o doubt in my mind that he was lying,” and “I sentenced [the defendant] to committed time on the basis of my strong feeling that he was committing perjury in this courtroom.”

The judge also refused to consider any mitigating factors presented by the defense counsel in deciding what penalty to impose. See Mass. R. Crim. P. 28 (b), 378 Mass. 898 (1979). Although the defendant had a previously clean record, held down a steady job, and supported a family, the judge dismissed all these factors, claiming that they were outweighed by the defendant’s “coming into this courtroom” and telling “a ridiculous story.” The judge further remarked that, had there been any prior record, the defendant would have bfeen sentenced to a longer committed term, but he believed that the defendant “should have a taste of the House of Correction because he came in here and made a mockery of the judicial system.”

*832Because the judge decided to impose sentence for the misdemeanor conviction based on his assumption that the defendant had committed perjury at the trial, we vacate the sentence and order that the defendant be resentenced.10

So ordered.

(concurring). The majority opinion relies upon Commonwealth v. Coleman, supra 797, and Commonwealth v. Souza, supra 813, in which I dissented. Here I agree with the court that the record demonstrates that in sentencing the judge relied solely on his perception of the defendant’s perjury during trial. Such reliance is impermissible under the teaching of United States v. Grayson, supra at 53, 55, which I would apply here as well as in Coleman and Souza.

(dissenting). I dissent. For reasons set forth in my dissent in Commonwealth v. Coleman, supra 797, I would hold that where a judge is satisfied beyond a reasonable doubt that a defendant has committed perjury in his presence, the judge is entitled to consider the perjury in sentencing the defendant, as one factor among others in assessing the defendant’s prospects for rehabilitation and restoration to a useful niche in society.