Grohl v Riordan

[2000] QDC 157

IN THE DISTRICT COURT  APPEAL NO. 145 of 2000

HELD AT SOUTHPORT

QUEENSLAND

[2000] QDC 157

Before J M Hanger, D.C.J.

BETWEEN              DAVID ERIC GROHL

Appellant

AND  SENIOR CONSTABLE STIF RIORDAN

Respondent

REASONS FOR JUDGMENT – J M HANGER, D.C.J.

Judgment delivered on the 12 day of May 2000.

On 31 January this year the appellant pleaded guilty to a charge of “Drink Driving” pursuant to s.79 of the Transport Operations (Road Use Management) Act 1995. He was fined $400.00, disqualified from holding or obtaining a driving license for three months and a conviction was recorded. He appeals against the sentence only in respect of the recording of a conviction.
The offence occurred at 10.54 p.m. on 23 January, 2000.   He was riding a moped at the time and was found to have a drug alcohol reading of .095%.   He had no previous convictions.   He was 30 years of age at the time.

Pursuant to s.12 (1) of the Penalties & Sentences Act the learned stipendiary magistrate had a discretion as to whether or not to record a conviction.   The appellant relies on s.12 (2) (c) (i) which requires the Court to have regard to –

“the impact that recording a conviction will have on the offender’s economic or social wellbeing”.

The appellant’s submission is that a proper consideration of this provision would have persuaded the magistrate not to have  recorded a conviction.

The appellant is an American citizen resident in the United States.   He was the lead singer/guitarist in a popular rock group and in that capacity travelled internationally.   He was due to perform in a number of Middle Eastern countries.  The recording of a conviction against him for an offence involving the consumption of alcohol would have a detrimental effect on his career and he would suffer financial loss if he was unable to perform these tours which had been arranged.

The learned magistrate acknowledged that he accepted the submissions that the appellant would suffer economic hardship if he was not allowed to visit Middle Eastern countries.   However, whether the recording of a conviction would involve any significant difference would depend on the questions asked of the visitor.   In the absence of any specific evidence on the point, I consider that it is more likely that the immigration authorities would want to know whether the applicant for entry has committed the offence rather than whether a conviction has been recorded for the offence.   A person should not be allowed to misrepresent the true state of affairs by asserting that he was not convicted of an offence, when in fact he had been convicted but the conviction was not recorded.

The Magistrate has clearly given serious consideration to whether or not the conviction should be recorded against the appellant.   This is apparent from his findings.  He indicated that he took into consideration the appellant’s remorse, his co-operation and his early plea, and reduced the sentence accordingly.

I cannot come to the conclusion that in exercising his discretion to record a conviction he was in error.

I order that the appeal be dismissed and that the appellant pay the respondent’s costs.