Edalaty v Caie[2009] QDC 301

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT CIVIL JURISDICTION JUDGE IRWIN

No 851 of 2009

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 forthis 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 Iwas stupid. BENCH:  Yes.  Well, a Judge had gone to gaol and then aformer Judge has gone to gaol for exactly the samebehaviour. DEFENDANT:  It's my first time.  I won't do it again. BENCH:  You're probably fortunate you've only beencharged under the Transport Act for your falsedeclaration 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.

2. (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. 

3. (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.

   4. (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.