R v Bernard (a pseudonym)[2020] QCA 232

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The applicant was sentenced in the Childrens Court for multiple offences to which he had pleaded guilty, some of which had been charged on indictment and some of which were summary offences.  There were over 30 summary offences which included assault, fraud, burglary, stealing and other less serious offences.  There were four indictable offences:

   1. (a)
      Dangerous operation of a vehicle causing death and leaving the scene;
   2. (b)
      Unlawfully using a motor vehicle with damage; and
   3. (c)
      Two counts of robbery in company with personal violence.
2. [2]
   Dearden DCJ sentenced the applicant to three years and six months’ detention for the dangerous driving offence.  His Honour made a conditional release order that would be operative after the applicant had served three months’ detention.  His Honour declared 410 days of detention already served.  He disqualified the applicant from holding a driver licence for two years (the applicant had no licence at the time).  His Honour recorded a conviction.
3. [3]
   For the charge of unlawful use of a vehicle his Honour ordered a concurrent period of detention for three months with no conviction recorded.  For the two counts of robbery his Honour ordered probation for three years and did not record a conviction.  His Honour ordered probation for several of the summary offences, with no convictions recorded, and a reprimand for the remaining summary offences.
4. [4]
   The applicant seeks leave to appeal his sentence for the dangerous operation count on the ground that the sentence was manifestly excessive.  He submitted that the sentence should not have been longer than 18 months and that the applicant, having served 410 days on remand, had already served more than 70 per cent of such a sentence.  He submitted that, having now served too long in detention, the probation order should be set aside.  He submits that no convictions should be recorded.  The charges arose out of the following events.
5. [5]
   On 26 July 2018, when the applicant was 15 years old, he boarded a bus and did not pay the fare.  Two TransLink officers approached him and asked for his personal details.  The applicant responded, “Fuck off”.  The officers repeated their request and received the same kind of response.  When the officers tried to stop the applicant from boarding another bus he assaulted both of them.  When arrested he was found in possession of a phone that was suspected to have been stolen.  He was charged with several summary offences and released on bail.
6. [6]
   On 14 August 2018 the applicant took a pair of socks from a department store and was charged with a summary offence.
7. [7]
   On 16 August 2018 the applicant approached a 13 year old boy at a shopping centre and tried to take a $5 note from him.  He said, “If you don’t give me the money, I will bash you.”  He grabbed the note and there was a struggle.  He was charged with stealing and with common assault.
8. [8]
   On 22 September 2018 the applicant was at home smoking cannabis with friends.  They decided to pick up a car which they had stolen earlier and which they had left on Appleby Road, Stafford.  After buying some cannabis, the applicant and two of his friends, one of whom I shall refer to by the name “Tommy”, picked up the stolen car.  The applicant drove it and Tommy was in the back seat.  The third boy was in the front seat.  While the applicant was driving at a low speed, Tommy, who was not wearing a seat belt, reached forward and yanked up the handbrake.  The boys found this very funny.  A short time later, when the applicant was driving the car at a speed of at least 84 kph along Appleby Road, a 60 kph zone, Tommy leaned over and pulled the handbrake one more time.  This time the car mounted the curb and smashed through a fence before crashing into a parked vehicle.  Damage was caused in the order of $45,000.  But far worse, Tommy was killed in the crash.  The applicant and the other boy ran away.  When police later found them, they denied any knowledge of the crash.  The applicant suffered no injuries.  His friend suffered moderate injuries.
9. [9]
   The other boy made admissions to police.  At two police interviews the applicant maintained his denials and told lies to police which included implicating others as the guilty parties.  Tommy’s mother and brother have given victim impact statements in which they described the horrific ongoing effects that Tommy’s death has caused and, it is clear, which will continue for a long time.
10. [10]
    While free on bail, on 17 January 2019 the applicant was found by police in possession of a stolen Apple iPhone X.  He had previously traded that phone on Gumtree for a cheaper phone and $100 but the purchaser found that he could not unlock the stolen phone.  The applicant returned the cheaper phone and retained the iPhone and the $100.  He was charged with receiving tainted property and fraud.  On 5 February 2019 the applicant burgled a home in Lutwyche and was charged with that offence.  On 7 February 2019 he broke into a home in Wooloowin where he stole some items and a car.  He posted a photo of himself driving the stolen car.  He was charged with burglary and unlawful use of the car.  On 12 March 2019 the applicant broke into a house in Clayfield and stole some property and was once again charged with burglary.  He repeated the same offence on 27 March 2019 and was charged again.  On 28 March 209 the applicant broke into another house in Wooloowin where he obtained the keys to two cars, one of which he stole and sold and the other of which ended up in the possession of other people.  He was charged with receiving tainted property and with two counts of unlawful use of a motor vehicle.  This pattern of offending continued with the commission of the same or similar offences on 23 March, 28 March, 29 March, 21 June, and 26 June 2019.
11. [11]
    On 21 July 2019 the applicant and some friends were in King George Square where they approached another group of young people.  The applicant approached one member of the group and punched him several times before pinning him against a wall while one of the applicant’s friends took the victim’s necklace.  The victim asked the applicant to stop, saying he had a broken knee.  The applicant’s response were words to the effect that he didn’t “give a fuck” and there was another assault before the offenders took their victim’s shoes.  Later on the same day, the applicant and his friends got into a fight with other boys.  The applicant kicked one of these boys in the face and body while he was on the ground.  The applicant and his friends then stole a hat, a wallet and shoes from their victims.  These were the two robbery counts.
12. [12]
    On 18 July 2019 the applicant and a friend were approached by police on the Ipswich train line.  The applicant had no ticket.  Police arrested the applicant and his friend.  While his friend was being handcuffed, the applicant called out to police, “Fuck you.  What the fuck are you gonna do.  You’re not going to handcuff me you stupid scum.”  The applicant struggled with police and had to be tasered.  He was charged with summary offences.
13. [13]
    The applicant was 15 years old at the beginning of this spree of offending, 16 years old at the end of it and 17 years old when he was sentenced on 22 April 2020.  Unlike so many young offenders who have committed similar offences, the applicant did not have a dysfunctional or destructive upbringing.  However, there were problems.  According to the pre-sentence report, the applicant began exhibiting disturbing behaviour from the age of three including acts of violence towards his mother.  His parents sought professional help and the applicant was given a diagnosis of ADHD, Asperger’s Disorder and Conduct Disorder.  He was given medications.  By the time he was seven years old he began to show episodes of uncontrollable rage requiring physical restraint.  He began to engage in self-harming behaviour, such as self-inflicted burns, cutting and forcing himself to retch.  At school he faced disciplinary action for various forms of disruptive behaviour.  He stopped going to school when he was 12 years old after which his mother and other family members gave him a home schooling for about 18 months.  He began smoking cannabis at about this time.  He had used cannabis and had swallowed Xanax before the car crash.  His parents made various attempts to get psychiatric help for their son but treatment was not successful.  He began to associate with similarly inclined boys and to loiter at shopping centres and places like King George Square.  In June 2018 a psychiatrist opined that the applicant fulfilled all the criteria for Antisocial Personality Disorder.
14. [14]
    After the crash the applicant had been using methamphetamine and MDMA.  The author of the pre-sentence report assessed him as having poor emotional and behavioural regulation and a predisposition to instigate violence.  He has difficulty empathising and feeling remorse.  He is unable to accept responsibility for his acts.  However, that is not to say that the applicant was not emotionally affected.  He has experienced terrifying flashbacks including hearing the screams of his friends in the car.
15. [15]
    The learned sentencing judge, Dearden DCJ, was keenly aware of the applicant’s harrowing and disturbing background.  It is clear that the applicant has been burdened by a mental dysfunction for which he is not to blame.  However, the applicant’s propensity to engage in violent ways cannot be disregarded.  His Honour also took into account the positive mitigating factors.  These included the applicant’s stated intention to speak to a psychologist every week, his efforts at education while in detention and, perhaps against the weight of the evidence, the applicant’s remorse.  His Honour stated that, in his view, he should apply the “principle of a release today, subject to the longest possible supervision and a CRO for the dangerous op”.  The applicant’s counsel agreed that that was the appropriate way in which to structure the sentence.  She submitted that “a lengthy period of probation would be beneficial in this case and is called for given what’s contained in the pre-sentence report” but submitted that the head sentence for the dangerous operation offence should be in the order of 18 months detention.  In relation to that final proposition, his Honour commented that the difficulty with accepting 18 months for the head sentence was the “serious aspects of the callous disregard of leaving the scene” as well as falsely blaming others.  His Honour then concluded:

“Finally, the most serious offence, the dangerous operation of a vehicle causing death before leaving the scene.  It has troubled me as to exactly where to impose the sentence, which I accept must be a sentence of detention, having considered all other alternatives.  Taking into account your age at the time, which was 15, your lack of criminal history, and considering all other penalties, and I should say, in that respect, that I have also considered the issues of referral to restorative justice, and on the basis of pre-sentence reports, concluded that it is not appropriate for any of the offending in this matter.

In my view, the appropriate penalty, then, doing the best I can to balance all of the competing considerations, and even taking into account the unusual nature of the way in which the crash occurred, is a penalty of three and a–half years detention, which I will offer you to be served by way of a three-month conditional release order.  And in respect of count 2, a concurrent sentence of three months detention, which, of course, has already been served.”

16. [16]
    On this appeal the applicant’s counsel has pointed to three sentences in which adults have been sentenced for driving offences involving death.^[1]  The applicant relies upon these to show that adults who committed similar offences in similar circumstances have been sentenced to periods of imprisonment substantially less than three and a half years.
17. [17]
    It is useless to raise such cases when considering a sentence for a child.  The whole statutory scheme for punishment is different in the case of children because their situation, as an offending group, is entirely different.  The present case was one in which, as the learned sentencing judge well appreciated, required a balance between the factors that ordinarily require a severe sentence for an offence like this, for reasons that are perfectly obvious, against the factors that exist only because of the applicant’s youth.  That single aspect of the case, his youth, makes the explanation for his awful behaviour a much weightier factor than it would have been in the case of an adult offender and it makes his prospects for rehabilitation the subject of earnest and difficult inquiry.  That latter factor is one in which the applicant would be given the benefit of every doubt, as indeed the learned judge gave him, which would not be the approach taken with the same offence committed by a mature adult.
18. [18]
    In addition, a sentence of imprisonment cannot be compared to a sentence of detention.  The physical conditions, as well as the legal conditions, attaching to the two forms of incarceration are widely different and so the two penalties have no equivalence.  Nor is a conditional release order an available option when sentencing an adult.
19. [19]
    In this case, as I have said, Dearden DCJ had to balance the need to punish and to deter others against all of the factors that operated in favour of the applicant despite the objective circumstances of all of the offending.  In relation to this last point, the applicant’s submissions on appeal also fail to come to grips with that fact that the head sentence was a global sentence for a crime spree which included other serious offending.  The adult offenders in the three cases referred to were not in that position.
20. [20]
    I am unable to conclude that there is any error inherent in the sentence.
21. [21]
    I would refuse the application for leave to appeal.
22. [22]
    MORRISON JA:  I have read the reasons of Sofronoff P and agree with those reasons and the order his Honour proposes.
23. [23]
    PHILIPPIDES JA:  I agree with the reasons for judgment of Sofronoff P and the order proposed by his Honour.