R v Ndizeye - [2006] QCA 537

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ndizeye [2006] QCA 537

PARTIES:

R
v
NDIZEYE, Zabulon
(applicant/appellant)

FILE NO/S:

CA No 286 of 2006
DC No 2273 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2006

JUDGES:

Williams, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence allowed
2. Vary the sentence imposed by deleting the requirement that a conviction be recorded

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – applicant pleaded guilty to making a false statutory declaration – sentencing judge ordered that applicant perform 175 hours unpaid community service within 12 months, be disqualified from holding or obtaining a driver’s licence for four months, and ordered that a conviction be recorded – applicant has a disadvantaged background and has limited employment opportunities – whether conviction should be recorded – whether sentencing judge erred in recording a conviction

Criminal Code 1899 (Qld), s 194(1)
Penalties and Sentences Act 1992 (Qld), s 12(1), s 12(2)

Barrett v Jensen (unreported, Court of Appeal, CA No 158 of 1995, 20 June 1995), considered

R v Bain [1997] QCA 35, considered

R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, cited

R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467; CA Nos 241 of 2005, 242 of 2005, 243 of 2005, 14 December 2005, considered

COUNSEL:

A J Rafter SC for the applicant/appellant
D R Mackenzie for the respondent

SOLICITORS:

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

WILLIAMS JA: Making a false statutory declaration is a serious offence. It strikes at the very heart of the administration of justice. The offence is even more serious when the offender goes to a court in order to find a Justice of Peace before whom the statutory declaration is made. Because the offence strikes at the heart of the administration of justice a sentence of actual imprisonment would always be within range, even for a youthful first offender.

Further, because of the serious nature of the dishonesty involved in the commission of the offence ordinarily a conviction would be called for, even where circumstances existed justifying the imposition of a non-custodial sentence. There would, in my view, have to be some good reason before a sentencing court could exercise the power of not recording a conviction for such an offence.

The applicant here was ordered to perform 175 hours community service within 12 months with a conviction being recorded; in addition he was disqualified from holding or obtaining a driver's licence for four months. The circumstances in which…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Ndizeye

Details

AGLC: R v Ndizeye [2006] QCA 537
Case: [2006] QCA 537
Decision Date: 15 December 2006

CaseChat Overview and Summary

The matter before the court involved an appeal by Ndizeye against their sentence. Ndizeye had pleaded guilty to making a false statutory declaration. The sentencing judge had imposed a sentence requiring Ndizeye to perform 175 hours of unpaid community service within 12 months, disqualify them from holding or obtaining a driver’s licence for four months, and record a conviction. Ndizeye sought to appeal against the sentencing decision, particularly the decision to record a conviction, arguing that it would have a disproportionate impact on their life given their disadvantaged background and limited employment opportunities.

The court was tasked with determining whether the sentencing judge erred in requiring the recording of a conviction, and if so, whether the error was so significant as to warrant an appeal against the sentence. The court considered the principles of sentencing and the impact of the conviction on Ndizeye’s life, including their employment prospects and social circumstances. The court also assessed whether the sentence imposed was appropriate in all the circumstances, particularly in light of the applicant’s background and the nature of the offence.

In allowing the appeal, the court found that the sentencing judge had erred in requiring the recording of a conviction. The court considered that the imposition of a conviction in these circumstances would have a disproportionate impact on Ndizeye’s life, particularly given their disadvantaged background and limited employment opportunities. The court held that the error was significant enough to warrant an appeal against the sentence. The court varied the sentence by deleting the requirement that a conviction be recorded, finding that this modification addressed the error without compromising the objectives of the sentence.

The court allowed the application for leave to appeal against the sentence and varied the sentence imposed by deleting the requirement that a conviction be recorded.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Vary the sentence imposed by deleting the requirement that a conviction be recorded

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ndizeye [2006] QCA 537
PARTIES:	R v NDIZEYE, Zabulon (applicant/appellant)
FILE NO/S:	CA No 286 of 2006 DC No 2273 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2006
JUDGES:	Williams, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence allowed 2. Vary the sentence imposed by deleting the requirement that a conviction be recorded
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – applicant pleaded guilty to making a false statutory declaration – sentencing judge ordered that applicant perform 175 hours unpaid community service within 12 months, be disqualified from holding or obtaining a driver’s licence for four months, and ordered that a conviction be recorded – applicant has a disadvantaged background and has limited employment opportunities – whether conviction should be recorded – whether sentencing judge erred in recording a conviction Criminal Code 1899 (Qld), s 194(1) Penalties and Sentences Act 1992 (Qld), s 12(1), s 12(2) Barrett v Jensen (unreported, Court of Appeal, CA No 158 of 1995, 20 June 1995), considered R v Bain [1997] QCA 35, considered R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, cited R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467; CA Nos 241 of 2005, 242 of 2005, 243 of 2005, 14 December 2005, considered
COUNSEL:	A J Rafter SC for the applicant/appellant D R Mackenzie for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent