Child refused leave to appeal detention order over death of 15-year-old friend

Queensland’s highest court has refused a child leave to appeal a 3½-year detention order handed to him for offences that included killing his 15-year-old mate when he crashed the stolen car he was driving into a house.

The Court of Appeal in Brisbane yesterday refused the boy, given the pseudonym ‘Bernard’, leave to appeal the sentence imposed by a Childrens Court judge in April this year on the grounds it was “manifestly excessive”.

The court had been told Bernard, then 15, was driving a stolen car and under the influence of drugs at the time he killed his 15-year old friend, known only as ‘Tommy’, when it crashed through a fence and hit a house in Appleby Rd, Stafford, on Brisbane’s northside, in September 2018.

Court of Appeal President Walter Sofronoff, in his written six-page decision, said Bernard was sentenced by Childrens Court Judge Ian Dearden after pleading guilty to more than 30 offences including assault, fraud, burglary, stealing, robbery, unlawful use of a motor vehicle, dangerous driving causing death and leaving the scene of the crash.

Judge Dearden sentenced Bernard to three years and six months’ detention for the offence of dangerous driving leading to the death of Tommy, but made a conditional release order that would see child serve a further three months’ detention.

The order took into account that Bernard had already served 410-days in pre-sentence detention.

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Lawyers for Bernard appealed the sentence, saying it was manifestly excessive and that he should have received 18 months’ detention.

Justice Sofronoff said: “On this appeal (Bernard’s) counsel has pointed to three sentences in which adults have been sentenced for driving offences involving death. 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.”

In a unanimous decision, supported by Justices Philippides and Morrison, Justice Sofronoff found it was “useless to raise such cases (involving adults) 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,” his Honour said.

“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 (Bernard’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.

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“That latter factor is one in which (Bernard) 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.

“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.

“In this case…(Judge Dearden) had to balance the need to punish and to deter others against all of the factors that operated in favour of (Bernard) despite the objective circumstances of all of the offending.

“(Therefore,) I am unable to conclude that there is any error inherent in the sentence.”

Read the full decision.

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