Edalaty v Caie

[2009] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

Edalaty v Caie [2009] QDC 301

PARTIES:

RAMIN EDALATY

(Appellant)

V

LISA ROSEMARIE CAIE

(Respondent)

FILE NO/S:

BD851/09

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Richlands

DELIVERED ON:

13 August 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2009

JUDGE:

Irwin DCJ

ORDER:

1. (a)     Appeal allowed.

(b)     The sentence is varied by deleting the order that the appellant be disqualified from holding or obtaining a driver licence for a period of seven months.

(c)     Instead, it is ordered that the appellant be disqualified from holding or obtaining a Queensland driver licence for a period of three months from 13 August 2009.

(d)     Sentence otherwise confirmed.

2. No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to giving a false document, disobeying the speed limit and contravention of a requirement and sentenced to one penalty of a $1500 fine and disqualified from holding or obtaining a driver licence for 7 months – where the appellant was a taxi driver who received an infringement notice for disobeying the speed limit – where he stated a false name in contravention of a police officer’s direction – where he subsequently submitted a false statutory declaration that his wife was the driver – where the disqualification period heavily impacted on his ability to make a living – where the magistrate made no reference to his early guilty plea or circumstances of mitigation – where imprisonment was not a penalty available for the offences – where the magistrate referred to a former judge having gone to gaol for exactly the same behaviour, said that the appellant was borderline to go to gaol and if he engaged in that sort of behaviour again he would go to prison – whether in these circumstances the magistrate incorrectly sentenced the appellant on the basis that imprisonment was an option – whether there was an error in the exercise of the sentencing discretion

Criminal Code 1899 (Qld), s 194(1), 666A

Justices Act 1886, s 222(1), s 222(2)(c), s 225(3)

Penalties and Sentences Act 1992, s 13(1), s 49(1), s 187(1)

Police Powers and Responsibilities Act 2000, s 791(2)

Transport Operations (Road Use Management) Act, s 53(2)

Transport Operations (Road Use Management – Road Rules) Regulation 1999, s 20

House v The King (1936) 55 CLR 499, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Briese (1997) 92 A Crim R 75, cited

R v Briody [2002] QCA 364, cited

R v Dullroy and Yates, ex parte Attorney-General (Qld) [2005] QCA 219, cited

R v Einfeld [2009] NSWSC 119, cited

R v Mallon [1997] QCA 058, applied

R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, applied

R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited

R v Ndizeye [2006] QCA 537, considered

R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited

COUNSEL:

M.J. Forrest for the appellant

M.J. Litchen for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 851 of 2009

RAMIN EDALATY	Appellant
and
LISA ROSEMARIE CAIE	Respondent

BRISBANE

..DATE 13/08/2009

ORDER

HIS HONOUR: This is an appeal pursuant to section 222(1)

of the Justices Act 1886 against the sentence imposed by a Magistrate at Richlands Magistrates Court on 23 March 2009 for three offences to which the appellant pleaded guilty on that date.

The offences were one count each of disobeying the speed limit

contrary to section 20 of the Transport Operations (Road Use

Management - Road Rules) Regulation 1999, contravention of a

requirement pursuant to section 791 (2) of the Police Powers and Responsibilities Act 2000 and giving a false document contrary to section 53(2) of the Transport Operations (Road Use Management) Act 1995.

The first two offences were committed on the 22nd of December

2008.  The third offence was committed on the 15th of January

2009.  The contravention of a requirement offence

particularises the contravention as stating a false name.  The

information particularised for the third offence was that the

appellant made a declaration that he was not the driver of a

motor vehicle at the time of an offence.  This was a reference

to the first offence of disobeying the speed limit.

The maximum penalty for each of the first two offences was 40

penalty units or $3,000.  The maximum penalty for the third

offence was 60 penalty units or $6,000.  This is because prior

to the 1st of January 2009 each penalty unit was $75 and after

that date this was increased to $1,000.

The Magistrate recorded convictions and imposed one penalty of

$1,500 as a fine for all three offences pursuant to section

49(1) of the Penalties and Sentences Act 1992 and

disqualified the appellant from holding or obtaining a driver

licence for seven months.  The appellant was given three

months to pay with two months' imprisonment in default.  No

order was made as to costs.

In accordance with section 222(2)(c) of the Justices Act the

appeal is on the basis that the sentence was manifestly

excessive.

It was acknowledged in R v. Melano, ex parte Attorney-General [1995] 2 Qd.R. 186 in relation to Attorney-General's appeals under section 669A of the Criminal Code that the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v. The King [1936] 55 CLR 499 with particular reference to the judgment of Dixon, Evatt and McTiernan JJ at 504 - 505.

Section 669A is an analogue provision to the right of a

complainant aggrieved by a decision of the Magistrates Court

to appeal against sentence.  I refer to the review of

authorities on this issue in R v. Dullroy and Yates,

ex-parte Attorney-General (Qld) [2005] QCA 219. I also

refer to the judgment of Dearden DCJ in Parry v. Mayfield

Holdings (Qld) Pty Ltd [2006] QDC 250 at paragraph 28. I

am indebted to his Honour for the review of the relevant

authorities at paragraphs 27 to 29.

It follows from House that before an Appellate Court will

interfere with the exercise of a sentencing discretion the

appellant must demonstrate that the judicial officer acted

upon a wrong principle, allowed extraneous or irrelevant

material to guide or affect him, mistook the facts or did not

take into account some material consideration.

The principle in Melano is that unless the sentencing Judge

has erred in principle either because an error is discernible

or demonstrated by a manifest inadequacy or excessiveness, the

sentence he or she has imposed will be proper.  Variation by

this Court will not be justified in such circumstances unless

perhaps in exceptional circumstances - for example, to

establish or alter a matter of principle or the sentencing

range which is appropriate.

The Court of Appeal also said in that case support for the

view that ordinarily the Court should not allow an appeal

under section 669A subsection (1) unless the sentence is

outside the sound exercise of a sentencing Judge's discretion

is to be found in factors that are material to the exercise of

the Court's discretion.  Accordingly, as stated by Dearden DCJ in Parry, the question is whether the sentence appealed against was outside the sound exercise of the sentencing Court's discretion.

In Mladenovic, ex parte Attorney-General McMurdo P said

that the appellant must establish error in the exercise of the

sentencing Judge's discretion here that the sentence is

manifestly excessive before this Court can intervene and

re-exercise that discretion.  I also refer to R v. Sittczenko

ex parte Commonwealth DPP [2005] QCA 461 in the judgment of

Keane J at paragraphs 25 and 26.

The appellant, who is 41 years of age, was 40 at the time of

the offence.  He had one prior criminal conviction for a

public nuisance offence in October 2005 for which he was fined

without a conviction being recorded.  This is not relevant to

the circumstances of the current offence.

His traffic history is more relevant.  It demonstrates that

between the 25th of August 2005 and the 23rd of August 2008 he

has been convicted of four previous speeding offences, three

offences of failing to stop at a red light and one of failing

to wear a seatbelt.  The largest amount that he had been fined

was $350 for exceeding the speed limit on the 2nd of October

2007.  This was also his last speeding fine before the offence

which was therefore committed 14 months later.  He had

committed one of the failing to stop at a red light offences and the offence of failing to wear a seatbelt in August of 2008.  He had never been disqualified from holding or obtaining a driver licence.  On 3 December 2008 he had been sent a demerit points warning letter.  This is relevant to the circumstances in which the contravention and false document offences were committed.

The facts of the offences which were not in dispute are

summarised in the respondent's outline of submission as

follows:  "On 22 December 2008 at approximately 3.45 a.m.

police detected the appellant travelling at 94 kilometres per

hour in a signed 70 kilometre per hour zone.  When he was

intercepted by police the appellant gave no reason for his

speed and was uncooperative with police when asked to produce

his licence.  The appellant repeatedly stated words to the

effect of 'Please, I will lose my licence.', and begged police

not to give him an infringement notice for speeding as he

required his licence for his employment as a taxidriver.

The appellant continually refused to provide police with his

full name or to produce his licence.  After six minutes the

appellant told police that his name was Asana Edalaty, the

name of the appellant's wife.  An infringement notice was

issued under that name.

On 15 January 2009 the appellant signed a statutory

declaration declaring that at the time of the offence he was

not the driver of the vehicle and further declaring that the

driver was his wife.  When police spoke to the appellant

concerning this the appellant stated that he made the false

declaration as he wanted to avoid receiving demerit points as

he needs his licence to work as a taxidriver."

The appellant was not represented before the Magistrate,

although he advised that he did not want an adjournment to

seek legal advice, but this had the unfortunate consequence

that the appellant put little before the Magistrate about his

background or as to circumstances in mitigation.  All that

emerges from his discussion with the Magistrate is an

incomprehensible account of information that he said he was

given by Queensland Transport which I take to have been given

before he swore the statutory declaration and which he claimed

was wrong information.  This seems to have been said to the

Magistrate in an attempt to explain why he made the false

declaration.  As submitted on his behalf, it was at best a

confusing explanation which did nothing to advance his

position. 

He was able to say to the Magistrate that he had to support

his wife and children and he was stupid.  He said that he was  

a taxidriver and he wouldn't do it again.  He asked for a

restricted licence because he was supporting his wife and

children.  The Magistrate told him in response to this that he

could not have any licence for seven months.

This discussion with the Magistrate occurred after the

Prosecutor had read the facts and tendered his histories.  His

comments were made in response to comments by the Magistrate

some of which are relied on by his counsel in support of the

appeal.

After the appellant had said, with reference to his

discussions with Queensland Transport, "But I had wrong

information.  I was stupid.", the following exchange occurred

between him and the Magistrate:

"BENCH:  Yes.  A former Judge has just gone to trial for
     this sort of behaviour.

DEFENDANT:  Yes, I know.

BENCH:  So why shouldn't I send you to gaol?

DEFENDANT:  I have wife, kids and I support them and I
     was stupid.

BENCH:  Yes.  Well, a Judge had gone to gaol and then a
     former Judge has gone to gaol for exactly the same
     behaviour.

DEFENDANT:  It's my first time.  I won't do it again.

BENCH:  You're probably fortunate you've only been
     charged under the Transport Act for your false
declaration and not under the Criminal Code, I suspect."

The Magistrate also said to him immediately before he imposed

sentence, "Well, you're a borderline to go to gaol, that's

what the reality is.  Because you've been charged under the

Transport Operation (Road Use Management) Act I won't go down

that path today, but if you engage in that sort of behaviour

again you're going to gaol."

The rationale for the sentence was expressed by the Magistrate

as follows:  "Well, you won't be driving for some time after

this.  You don't deserve to have a licence when you're

behaving like this, when you want to start filling in false

declarations.  You couldn't even come clean with the police

officer when you got picked up."

The Magistrate repeated subsequently that he did not deserve a

licence.  At no time did the Magistrate refer to any

circumstance in mitigation in determining this sentence.  In

particular, there was no reference to the appellant's plea of

guilty or the fact that he had cooperated with the

administration of justice to the extent that, when spoken to

by the police in relation to the false declaration, he

admitted that he had done so.

The plea was an early plea of guilty as it was made on his

first appearance before the Magistrates Court.  Further, no

reference was made to his remorse as evident from his plea of

guilty, his admissions to the police and his statement that he

was stupid.

The appellant's submission makes reference to the Magistrate's

comments about the fate of the former Judge.  As the former

Justice Einfeld had been sentenced to terms of imprisonment

for perjury and perverting the course of justice three days

earlier, it is reasonable to accept the submission that this

was the case that his Honour was referring to.  Although this

submission is supported by copies of newspaper articles, I

have read the judgment in R v. Einfeld [2009] NSWSC

119 delivered by James Justice on 20 March 2009 to confirm

this.

In these circumstances, it is submitted on behalf of the

appellant that he was in fact charged under section 53(2) of the Transport Operations (Road Use Management) Act, a simple offence for making a false statement which attracts a maximum penalty of 60 penalty units. It is emphasised that the offence does not attract a gaol term and it is submitted that it is hard to understand his Honour's comments in these circumstances that the appellant was "borderline to go to gaol. That's what the reality is."

It is asserted on behalf of the appellant that the comparison

between the two cases was an inappropriate and unfortunate

comparison and may have unduly influenced his Honour's

sentence.

It is submitted that the speeding offence would attract a fine

of $333 in accordance with the information on the Queensland

Transport website and also it is submitted that there is no

provision for disqualification for that offence.  Reference is

made to the appellant's traffic history and the absence from

it of disqualifications or more serious offences such as

drink-driving.  Reference is also made on his behalf to his

family situation and demonstrated remorse.

It is submitted that the more appropriate sentences in the

circumstances would have been in relation to the speeding

offence, a fine in the order of $333, in relation to the

contravening a direction offence, a fine in the order of $200

and in relation to the false document offence a fine in the

order of 300 to $400 together with a short disqualification

period of about one to three months under section 187 of the

Penalties and Sentences Act.

In relation to the disqualification period, it is submitted

that this is a discretionary power and the lengthy

disqualification has heavily impacted on his ability to earn

his living as a taxidriver, although it may be more

appropriate to say that on the basis of the information placed

before me today that the lengthy disqualification of his

licence would have such an impact if it is not reduced by the

Court to something in the order of the period of

disqualification which is submitted on the appellant's behalf.

This is because I'm advised that it is correct for me to

proceed on the basis that the licence disqualification was

immediately stayed on the basis that the appeal had been

lodged or would be lodged.  In those circumstances, it is

submitted that if I was to reduce the licence disqualification

to the extent submitted on behalf of the appellant the

disqualification order would appropriately commence from

today.

On behalf of the appellant reference was made to R v.

Ndizeye [2006] QCA 537 where the appellant pleaded guilty to

making a false statutory declaration and inter alia was

disqualified from holding or obtaining a licence for four

months.  Reference was made to the fact that this was a matter

involving an indictable offence under section 194(1) of the

Criminal Code which attracts a maximum period of three years'

imprisonment.

The respondent submits that the sentence is not manifestly

excessive.  It is submitted that the Magistrate was correct to

observe that the appellant was fortunate not to be charged

with the same serious offence as the appellant in R v.

Ndizeye.  It is also argued that while this case is not

directly comparable it does contain principles which offer

guidance in particular that making a false statutory

declaration is a serious offence.  These principles are that it strikes at the very core of the administration of justice and deterrence is more important for offences of this nature.  It is correctly submitted that each matter turns on its own facts.

It is said that in this case there was an overall course of

dishonest conduct from when the appellant was pulled over by

the police in December 2008 to when he made the false

statutory declaration implicating his wife in January 2009.

It is submitted that it is not appropriate for the appellant

to rely on the fine amounts recorded on the Queensland

Transport website for the purposes of sentencing because the

appellant was sentenced by a Court in circumstances where he

did not elect to pay the infringement notice amount in his own

name.

Therefore it is submitted that the speeding cannot be viewed in isolation from the other conduct displayed by the appellant which is said to be a matrix of dishonest behaviour.  The appellant has a history for speeding and has been fined a larger amount in the past.

It is submitted that when regard is had to the total of the

maximum penalties available for the offences to which the

appellant pleaded guilty, the penalty imposed in this case,

including the seven month disqualification, is not excessive.

It is argued that it is in the interests of the wider

community that taxi drivers be stringently deterred from

dishonest conduct as taxi drivers are in regular contact with

the community and provide the necessary service, not just to

commuters but to socially disadvantaged persons also.

The respondent submits that this is the other side of the coin

in relation to the court's recognition of the special

vulnerability of taxi drivers in situations of violence, with

reference to R v Briody [2002] QCA 364. It is submitted that

while taxi drivers may be vulnerable in certain situations so,

too, are their passengers.

The respondent also submits that another aggravating feature

of this matter is the appellant was willing to implicate

another person in his offending.  It is asserted that unlike

the situation in Ndizeye where the appellant's mother was

supportive of his behaviour, it is not known if the

appellant's wife was aware of what the appellant had done, nor

of the impact it may have had on the appellant's wife with

regard to her traffic record.

It is submitted that while the Magistrate did make remarks

which could be construed to be in reference to topical events

concerning a judge in New South Wales at the time of sentence,

these remarks can be regarded as having been made by an

experienced Magistrate in order to alert the appellant to the

seriousness of his conduct and to show him that no-one is

exempt from punishment in regard to this sort of behaviour

rather than as a direct comparison to aid in the sentencing

process.

It is finally submitted that the sentence cannot be viewed as

manifestly excessive when regard is had to the circumstances

of all the offending and to the mature age of the appellant

and to his position as a taxi driver.

As the respondent submits, this sentence was imposed by an

experienced Magistrate, and although he did not make reference

to the circumstances of mitigation in the appellant's favour,

or say that he had taken them into account as the

sentencing procedures occupied only three pages of transcript,

the failure to mention them may be no more than an indication

that this is another example of a Magistrate seeking to deal

expeditiously with a matter in the course of a busy court

list.

However, one of the matters which was not expressly referred

to was the appellant's guilty plea.  This involves a failure

to comply with section 13(3) of the Penalties and Sentences

Act which provides:

"When imposing sentence the court must state in open court

that it took account of the guilty plea in determining the

sentence imposed."

Although for the reasons I have given this failure may be

understandable, as stated in the R v Mallon [1997]

QCA 058, one result of this is to place the sentence in

jeopardy and cause an Appeal Court to examine it closely since

it does not clearly appear that the court had taken the plea

into account.

For my own part it raises a question that even assuming this

and other circumstances in mitigation were taken into account

as to whether they were given sufficient weight.  In this case

there is the additional matter of the effect of the references

by the Magistrate to what I accept to be the sentence in the

Queen against Einfeld and also the statement that the

appellant was fortunate not to have been charged for making a

false declaration under the Criminal Code.  This can be taken

as a reference to the indictable offence of making a false

declaration in breach of section 194(1) of the Code.

As the appellant has reminded me, there is a maximum penalty

of three years' imprisonment for this offence.  This is the

offence with which the Court of Appeal was concerned in

Ndizeye with reference to the making of a false statutory

declaration.  Accordingly the Magistrate's comments related to

a sentence and a legislative provision which concerned

indictable offences punishable by terms of imprisonment,

whereas the offence with which the appellant was charged

provided for a fine as the maximum penalty.

Although the Magistrate made it clear immediately before he

sentenced the appellant that he was dealing with the charge

under the Transport Operations (Road Use Management) Act, I am

unable to exclude as a rational hypothesis that his Honour,

nonetheless, proceeded on the basis that it provided an option

of a sentence of imprisonment.  This is because of his

statements that:  "a former judge has gone to gaol for

exactly the same behaviour"; "you're borderline to go to gaol", and, "I won't go down that path today, but if you engage in that sort of behaviour again, you're going to prison."

The logic of these observations is that the Magistrate was

incorrectly proceeding on the assumption that the sentence of

imprisonment was an available option.  Therefore, even

accepting that these remarks were also aimed at, as submitted

for the respondent, alerting the appellant to the seriousness

of his conduct, and to show him that no-one is exempt in

regard to this behaviour, it cannot be excluded that such an

incorrect understanding of section 53(2) of the Transport

Operations (Road Use Management) Act influenced the manner in

which his Honour exercised his sentencing discretion.

Although as the respondent also submits the Magistrate may

have been correct in observing that the appellant was

fortunate not to have been charged under section 194 of the

Code, the fact is that the prosecution authorities exercised

their discretion not to do so.  As a result, the appellant had

to be sentenced without regard to the penalty under that

section.  The fact that the discretion was exercised to charge

the appellant with the less serious of the two offences

suggests that the prosecution authorities considered that the

appellant's conduct, although serious, fell towards the lower

end of the scale of offending.

In these circumstances I consider that the Magistrate erred in

principle because there is a discernible error.  He has

allowed extraneous or irrelevant material to guide or affect

him in the exercise of his sentencing discretion.

It follows that the sentencing discretion miscarried and I

should re-exercise that discretion having regard to section

225(3) of the Justices Act. In doing so I have had

regard to the R v Ndizeye.  The respondent advises that it has

been unable to locate anymore closely comparable appeal

matters.

I agree with the respondent's submission that the case of

Ndizeye is not directly comparable dealing, as it does, with a

younger appellant, aged 23 years, charged with the more

serious indictable offence and where the issue was as to

whether the discretion should be exercised not to record a

conviction.  As a result the Court of Appeal did not have to

consider whether the four month licence disqualification was

appropriate for that offence.

Nonetheless, there are some factual similarities between that

case and the present case and the statements of principle as

submitted by the respondent offer Guidelines to assist in the

resolution of the sentence in this case.

The similarities are:  in each case the appellant was charged

with exceeding the speed limit.  Each signed a statutory

declaration swearing that someone else was the driver; In

each case the point of the attempted deception was that the

appellant had incurred a number of points for speeding,

including in the case of the present appellant, points for

other traffic offences and had been sent a letter warning him

of the position, so that each obviously realised that he was

now in real jeopardy of having his licence suspended.

Accordingly, in each case the false statutory declaration was

made;  Each supplied the full name, address, and licence

number of the person who was sworn to be driving the vehicle

and thereby falsely implicated that other person in an

offence;  Each pleaded guilty at an early stage.  Mr Ndizeye

pleaded guilty at the committal.  The appellant pleaded guilty

on his first appearance before the Magistrates Court.

In addition to the distinguishing features that I have

mentioned, the differences were that Mr Ndizeye had the

benefit of no conviction being recorded as a result of the

Court of Appeal decision.  He attended a court for the purpose

of swearing the statutory declaration.  Both Williams and

Jerrard, JJA, observed that this was a serious matter; and he

went to Police Headquarters to make an apology.

The second of these matters make R v Ndizeye a case involving

more serious conduct than that of the appellant.

There was also clear evidence in Mr Ndizeye's case that his

mother, whom he had sworn was the driver of the vehicle, had

given him permission to say that she was the driver.  There

was no information about whether or not this was the situation

in relation to the appellant's wife in the present case.

For completeness, I note that Mr Ndizeye also received a

noncustodial sentence, namely, an order that he perform

175 hours of unpaid community service.

The guiding principles that emerge from this decision of the

Court of Appeal are:  as stated by Williams JA at paragraph 1, the making of a false statutory declaration is a serious offence; as stated by his Honour at that paragraph, and also Jerrard JA at paragraph 12, the system of administration of justice relies on its citizens telling the truth in declarations made under oath.  Accordingly, deliberate untruths on such occasions strike at the very core of the administration of justice.  Jerrard JA also said at paragraph 12:

"For this reason a deterrent element is more than ordinarily

important for offences of perjury and like offences."

Despite the difference in penalty for the current offence, I

regard it as a like offence for the purposes of this

principle.  I consider that these principles are applicable

when determining the appropriate penalty in the circumstances

of this case.

I therefore proceed on the basis that the appellant's conduct

was serious and that general deterrence is required to be

reflected in the penalty imposed.

Because of the appellant's statements that he was stupid and

he would not do it again, I do not consider that this is a

case where personal deterrence is required at least insofar as

his offences involving dishonesty are concerned.

I agree with the respondent that this is not a case in which

each element of the appellant's conduct constituting each

individual charge can be considered in isolation, which is

effectively the approach that the appellant has taken in his

submissions by submitting the level of fine appropriate to be

imposed in each case.  This is a case where the speeding

cannot be viewed in isolation from the appellant's other

conduct, but, as the respondent puts it, it is to be properly

regarded as part of a matrix of dishonest behaviour.  As is

also submitted by viewing the offences together, one penalty

can be imposed to reflect the totality of the appellant's

behaviour and therefore the true level of criminality.

This is the approach which the Magistrate took in relying on

section 49(1) of the Penalties and Sentences Act which

provides that a court may impose a single penalty for a

number of offences of which an offender is found guilty if

they are founded on the same facts.  In this case I consider

they are because the contravention and false declaration

offences which are similar in nature are founded on the

driving offence.

Therefore, I also proceed on the basis that it is appropriate

to impose one penalty for all the offences.  In doing so I

nonetheless consider it is correct to have regard to the

infringement notice penalty when considering the appropriate

penalty to impose in this case, while remembering that the

maximum penalty for the offence of speeding is 40 penalty

units.

The fact is that the appellant did plead guilty to this

offence and did not proceed to trial.  Because no costs were

awarded it cannot be said that the respondent was put to any

additional cost as a result.  This follows from the fact that

the other offences could not have been resolved through an

infringement notice.  On the other hand, it is relevant that

this was the appellant's fifth offence of exceeding the speed

limit in addition to the other breaches of the traffic laws.

Considering the offence of speeding as part of the overall

conduct and applying the principles stated in the Queen

against Ndizeye to the overall dishonesty of his behaviour,

and considering the circumstances in mitigation to which

reference has been made in considering this matter afresh, I

have come to the same conclusion as to the Magistrate as to

the appropriate penalty by way of fine; that is, a $1,500 fine

for all the offences with a conviction recorded in each case.

I note that it has not been argued that a conviction should

not be recorded.  Mr Forest on behalf of the appellant

expressly advised me that he was not arguing that point.

As stated in R v Briese (1997) 92 A Crim R 75 by Thomas and White JJ at 77, before a court decides that a sentence is appropriate it needs to look at the combined effect of the sentencing options being considered and the circumstance as to whether or not a conviction is recorded.

Therefore, when, as in this case, a conviction is recorded it

is to be considered as part of the sentence.  As the remarks

of Dowsett J. who differed on that point confirm in Briese,

the recording of a conviction is a recognition of the

seriousness of the offence.

Therefore, I consider that recording a conviction, together

with the level of fine that I have referred to, sends the

necessary deterrent message, particularly with reference to

the importance of ensuring the honesty of taxi drivers in the

community interest as submitted by the respondent.

In coming to this conclusion, I have not proceeded on the

basis that another aggravating circumstance was that unlike

Mr Ndizeye, the appellant's wife was not supportive of his

behaviour.  The respondent has submitted that it is not known

whether his wife was aware of what he had done; nor of the

impact it may have on her with regard to her traffic record.

Because it is not known, it would be wrong for me to assume

this proposition against the appellant.  Therefore, I do not

proceed on the basis that the appellant's wife was unaware of

what he was doing.  It is nonetheless an aggravating factor

that as in the case of Mr Ndizeye, he was willing to implicate

another person in his behaviour with the potential

consequences that that may have had for her own driver

licence.

While I have come to the same conclusion as the Magistrate as

to the appropriate level of fine to be imposed in this case,

in re-exercising the sentencing discretion, I would reduce the

period of the licence disqualification.

As the appellant accepts, the power to do so arises under

section 187(1) of the Penalties and Sentences Act which so far

as is relevant provides:

"If:

(a)  an offender is convicted of an offence in connection

with, or arising out of the driving of a motor vehicle by

the offender; and

(b)  the court by or before which the offender is convicted is

satisfied having regard to the nature of the offence or

to the circumstances in which it was committed that the

offender should, in the interests of justice be

disqualified from holding or obtaining a Queensland

driver licence, the court may, in addition to any

sentence that it may impose, order that the offender is,

from the time of the conviction, disqualified absolutely

or for such period as is ordered by the court from

holding or obtaining a Queensland driver licence."

This is clearly not mandatory but rather a discretionary

power.  I consider that in the circumstances where the

appellant has committed four previous breaches of speeding

laws and otherwise breached the traffic laws to the extent

that he has received a warning letter based on the

accumulation of demerit points and his excessive speed in this

case was the foundation of the two charges involving

dishonesty, including the serious offence of making a false

declaration, the nature of the offending is such that his

conduct, in connection with and arising out of the driving of

a motor vehicle warrants the exercise of my discretion in the

interests of justice to disqualify him from holding or

obtaining a Queensland driver licence.  However, I have

concluded that it should be disqualified for a lesser period

than seven months with reference to the circumstances of

mitigation that I have identified.

In addition, I consider it to be of particular relevance that

he had neither previously been disqualified, nor convicted, of

the more serious traffic offences such as disqualified,

unlicensed, or drink driving.

Further, there is the fact not specifically referred to by the

Magistrate of the disqualification for a period of seven

months, and, as I am told by the appellant's counsel, for

anything in excess of three months would adversely affect his

ability to support his wife and children.  The Magistrate

simply dismissed this argument by saying, "You'll have to make

other arrangements or get another employment".  The appellant

replied that he couldn't because he didn't have any transport.

Unfortunately the Magistrate asked no questions to ascertain

the appellant's financial commitments or the full details of

his family circumstances.  As a result it was unknown whether

he had a mortgage to service, a commitment to the payment of

school fees, whether his wife worked, how many children he

had, how much income he and his wife received, and whether he

had any skills to perform any other form of employment.

Notwithstanding the absence of these matters in the current

economic situation which also existed at the time of the sentence, it cannot be assumed that full-time employment will be readily available to him.

A reason that the Court of Appeal exercised its discretion not

to record a conviction against Mr Ndizeye is that as Jerrard

JA said, in circumstances where the employment opportunities that the appellant in that case envisaged seemed to be with the Commonwealth Government and with a limited number of

departments, it was probable that a conviction would adversely

affect his chances of gaining such employment.

I consider in circumstances in which the disqualification of

his driver licence for seven months would adversely affect his

ability to support his wife and family, that a lesser period

of disqualification should be imposed.

Having regard to the recording of a conviction which in itself

can have adverse consequences in limiting employment and

travel opportunities, and the serious deterrent message that

this sends in addition to the quantum of fine, I consider that

a three month disqualification period is the appropriate

period of disqualification in the present case.  Accordingly,

I order :

1(a) That the appeal be allowed.

(b)  The sentence is varied by deleting the order that the

appellant be disqualified from holding or obtaining a

driver licence for a period of seven months. 

(c)  Instead, it is ordered that the appellant be disqualified

from holding or obtaining a Queensland driver licence for

a period of three months from 13 August 2009.

(d)  The sentence is otherwise confirmed.

Are there any submissions on the issue of costs?

No submissions being made, there is no order as to costs.

-----