R v Ndizeye [2006] QCA 537

Director of Public Prosecutions (Queensland) for the respondent

[1] 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.

[2] 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.

[3] 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 those orders were made are fully set out in the reasons for judgment of Jerrard JA which I have had the advantage of reading.

[4] The applicant seeks leave to appeal against the sentence, only for the purpose of having the recording of a conviction set aside. As I have indicated above, it is my view that a conviction would ordinarily be justified when sentencing for such an offence.

[5] In the present case the applicant relies on his disadvantaged position arising from his ethnic background, his difficulties with the English language, and the limited range of job opportunities available to him. There are factors in this case giving some support to the submission made on behalf of the applicant. He is aged 23 and has no previous convictions, though he does have a traffic history which is of some concern. He has obtained a Diploma of Business Information Assistance and has been studying for a Bachelor of Business at the Queensland University of Technology. He has done part time work with the Department of Immigration and the Multicultural Development Association. His future employment prospects lie in those areas.

[6] The reality is that if he seeks permanent employment with the Commonwealth Public Service he will have to disclose the commission of the offence whether or not he is convicted of it.

[7] The situation is borderline, and it is not without some hesitation that I have come to the conclusion that I ought not arrive at a different result to that established by the reasoning of Jerrard JA.

[8] In the circumstances I agree with the orders proposed by Jerrard JA.

[9] JERRARD JA: On 28 September 2006 Mr Ndizeye pleaded in the District Court to a charge on an indictment that he had made a false (statutory) declaration in breach of s 194(1) of the Criminal Code 1899 (Qld). The learned sentencing judge ordered that he perform unpaid community service within 12 months for 175 hours, that he be disqualified from holding or obtaining a driver's licence for four months, and ordered that a conviction be recorded. Mr Ndizeye had applied for leave to appeal against the sentence, contending that the learned judge failed to properly exercise the sentencing discretion when recording a conviction for the offence.

[10] The circumstances of the offence were that on 25 November 2005 Mr Ndizeye was driving a motor vehicle on the Bruce Highway and was caught exceeding the speed limit. Despite the fact that the vehicle he was driving was stopped by the police and that he was personally issued that day with a traffic infringement notice, Mr Ndizeye signed a statutory declaration on 1 December 2005 before a Justice of the Peace, at the Brisbane Magistrates Court, swearing that the driver was his mother. He supplied her full name, address, and licence number, apparently with her consent. Unfortunately for him when the Department of Transport contacted the police officer who had issued the ticket, that officer actually recalled that Mr Ndizeye was the driver, not his mother. She had been sitting beside him in the passenger seat. The police officer approached Mr Ndizeye's mother, who then revealed that the attempt at deception was with her knowledge, and that she had given Mr Ndizeye permission to say she was the driver of the vehicle.

[11] The point of the attempted deception was that Mr Ndizeye had already incurred a number of points for speeding, including on 20 April 2003, 21 December 2003, and 17 April 2005. On each of those dates he incurred a three point speeding offence, and on 25 June 2005 a letter was sent to him warning him of the position. He obviously realised on 25 November 2005 that he was now in real jeopardy of having his licence suspended. Accordingly, he made the false statutory declaration.

[12] He pleaded guilty at the committal hearing, and went to the Police headquarters to make an apology. That resulted in the arresting officer actually recording on the QP9 a respectful request that consideration be given to there being no conviction being recorded against Mr Ndizeye. However, the learned sentencing judge observed, correctly, that the system of administration of justice relies on citizens telling the truth on oath and in oral evidence, and in affidavits and in declarations made under oath. Accordingly, deliberate untruths on those occasions strike at the very core of the administration of justice. For that reason a deterrent element is more than ordinarily important for offences for perjury and like offences; and Mr Ndizeye had also falsely implicated another person, his own mother, in an offence. The judge, having referred to matters favourable to Mr Ndizeye, went on to hold that:

"A conviction is recorded. In my view that is appropriate when one looks at the serious aspects of an offence of this nature and the deterrent element."[1]

[13] Mr Ndizeye was born in Rwanda and came to this country in 1998 with his family. He became a citizen in 1999_._ At the time he came to this country his English was very limited, although he spoke fluent French and Kigalirwanda. He learned English and completed grade 12 at Kelvin Grove State High School, and persisted with his education, succeeding to the extent of obtaining a Diploma of Business Information Systems in December 2002. At the time of sentence he was studying for the degree of Bachelor of Business at the Queensland University of Technology.

[14] His ambition, described to the learned sentencing judge, was to obtain employment with the Department of Foreign Affairs and Trade, and he had worked with both the Multicultural Development Association Inc and the Department of Immigration. His counsel submitted to the sentencing judge that it is likely his employment opportunities, given his skill with languages and the qualifications he was pursuing, would be in a Commonwealth government department, and that a recording of a conviction would potentially damage his future employment prospects. No evidence was led in support of that submission, although on the information given to the judge, it appears realistic.

[15] The discretion granted by s 12(1) of the Penalties and Sentences Act 1992 (Qld) as to whether or not to record a conviction is granted in wide terms, as was recognised in the judgment of the Chief Justice in R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182 at 185. Section 12(2) reads:

"(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

(a) the nature of the offence; and

(b) the offender's character and age; and

(c) the impact that recording a conviction will have on the offender's -

(i) economic or social wellbeing; or

(ii) chances of finding employment."

[16] The learned sentencing judge certainly referred to the nature of the offence and to Mr Ndizeye's age and character, but did not specifically refer to the impact that recording a conviction would have on Mr Ndizeye's economic or social wellbeing, or his chances of finding employment. Submissions had been made on the latter topic in terms of the impact that a conviction "may" have, and the submission was also made that recording a conviction "would potentially damage his future employment prospects." No actual evidence or information was put before the learned judge other than that general submission.

[17] This Court has not yet specified the extent to which information or evidence should be put before a sentencing judge to raise for consideration the matters in s 12(2)(c)(i) and (ii). In R v Bain [1997] QCA 35, the judgment of the Court included the statement:

"There was (and is) no evidence that recording a conviction would have any impact on her economic or social wellbeing or her chances of finding employment. A bare possibility that a conviction may affect her prospects is insufficient."

The Court cited as authority Barrett v Jensen (unreported, Court of Appeal, CA No 158 of 1995, 20 June 1995). de Jersey CJ took a similar view in R v Cay, Gersch and Schell; Ex parte A-G (Qld) [2005] QCA 467.[2] His Honour wrote, regarding s 12(2)(c)(ii), that that legislation invites attention to what would, or would be likely to ensue in the case at hand, were a conviction recorded, and not to mere possibilities.[3] He later added that:

"Prudence dictates that where this issue is to arise, Counsel should properly inform the court of the offender's interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492."[4]

This applicant had done as the Chief Justice suggested in the first part of that paragraph, but that is all.

[18] Keane JA took a perhaps less rigorous approach where he wrote as follows:

"One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of a conviction. But the existence of a criminal record is a general rule, likely to impair a person's employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to 'the impact that recording a conviction will have on the offender's chances of finding employment' (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender's prospects of obtaining employment with a particular employer or even in a particular field of endeavour."[5] [original emphasis].

[19] Mackenzie J thought that case was not a suitable vehicle to attempt any detailed analysis of how s 12(2) should be applied, but did write that:

"Section 12(2)(c) speaks of the impact a conviction 'will' have on the offender's economic or social wellbeing or chances of finding employment. This involved an element of predicting the future. Ordinarily, the word 'will' in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender's life would be impacted on by the recording of a conviction. The notion of impact on the offender's 'chances of finding employment' is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.

"In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable."[6]

[20] The currently envisaged employment opportunities for Mr Ndizeye seem to be with the Commonwealth Government and with a limited number of departments. More could have been done by his legal representatives on his sentence to put evidence or information before the court as to the effect that recording a conviction would have on his chances of finding employment with the Commonwealth generally as an employer, or in the Departments of Immigration and Multicultural Affairs, or of Foreign Affairs and Trade. Because it was probable on the information given to the judge that a conviction for making a false statutory declaration would adversely affect Mr Ndizeye's chances of getting employment with those departments, I respectfully consider that the learned sentencing judge erred in not having regard to that matter when considering whether or not to record a conviction. Even on the limited submissions made it was a matter to which the judge was obliged to have regard.

[21] It follows that that part of the sentencing discretion miscarried, and this Court should re-exercise the discretion. Attending at a court for the purpose of swearing a false statutory declaration, as Mr Ndizeye did, is a serious matter, and it is important that Commonwealth Departments know the background of employees in whom trust will be placed. That consideration tends in favour of recording a conviction. However, Mr Mackenzie, counsel for the respondent, was confident in his submission on this application (not made to the sentencing judge) that routinely carried out checks, by any Commonwealth or State Department considering an application to employ Mr Ndizeye, would result in those potential employers learning of the commission of the offence, irrespective of whether there was a conviction recorded. It follows that it is not necessary to record a conviction to bring what Mr Ndizeye did to the knowledge of those potential employers, where relevant. The appeal record also shows that Mr Ndizeye volunteered the fact of being charged to the Multicultural Development Association Inc, when seeking employment there. The apology made to the police and the plea of guilty at the committal hearing shows that Mr Ndizeye has demonstrated proper regret for his conduct, as has his volunteering it to one employer. He has been successful in overcoming considerable handicaps and barriers in obtaining the qualifications he already has and in endeavouring to get more, and has language skills which would seem likely to be relevant to employment with the Commonwealth. He is only 23 and in the circumstances I would exercise the discretion by not recording a conviction.

[22] I would allow the appeal and vary the orders made by deleting the requirement that a conviction be recorded.

[23] HOLMES JA: I agree with Jerrard JA that the sentencing discretion should be re-exercised as he proposes.

[2] CA Nos 241 of 2005, 242 of 2005, 243 of 2005, 14 December 2005.

[4] [2005] QCA 467 at [8].

[5] [2005] QCA 467 at [43].

[6] [2005] QCA 467 at [74]- [75].