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

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

R
v
BERNARD (a pseudonym)
(applicant)

FILE NO/S:

CA No 106 of 2020
DC No 423 of 2019
DC No 47 of 2020
DC No 96 of 2020
DC No 128 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 22 April 2020 (Dearden DCJ)

DELIVERED ON:

27 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2020

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

Refuse the application for leave to appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the child 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 – where there were over 30 summary offences which included assault, fraud, burglary, stealing and other less serious offences – where the four indictable offences were comprised of one count of dangerous operation of a vehicle causing death and leaving the scene, one count of unlawfully using a motor vehicle with damage, and two counts of robbery in company with personal violence – where the learned sentencing judge sentenced the applicant to three years and six months’ detention for the dangerous driving offence, with a conditional release order that would be operative after the applicant had served three months’ detention – where his Honour also declared 410 days of detention already served, disqualified the applicant from holding a driver licence, and recorded a conviction on this count – where the learned sentencing judge sentenced the applicant to lesser concurrent sentences to the other indictable and summary offences – where the applicant contends that the sentence imposed on the dangerous operation count is manifestly excessive – where the applicant submits 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 – where the applicant submits that no conviction should be recorded – where the applicant relied on similar cases but these other cases involved adult offenders – where the head sentence imposed was a global sentence for a crime spree which included other serious offending – whether the sentence was manifestly excessive

COUNSEL:

E Mac Giolla Ri for the applicant
P McCarthy QC for the respondent

SOLICITORS:

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

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:
(a)Dangerous operation of a vehicle causing…

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 Bernard (a pseudonym)

Details

AGLC: R v Bernard (a pseudonym) [2020] QCA 232
Case: [2020] QCA 232
Decision Date: 27 October 2020

CaseChat Overview and Summary

The applicant, referred to as Bernard, appealed against the sentence imposed by the Children’s Court following his guilty plea to multiple offences. The charges included four indictable offences and over 30 summary offences, such as assault, fraud, burglary, and stealing. Bernard was sentenced to three years and six months’ detention for the dangerous operation of a vehicle causing death and leaving the scene, with conditional release to take effect after serving three months. Bernard also received lesser concurrent sentences for the other indictable and summary offences. Bernard contested the sentence for the dangerous driving offence, arguing that it was manifestly excessive and should not exceed 18 months. He also claimed that the sentence should not result in a conviction due to the time already served on remand. Bernard referred to cases involving adult offenders, but the court noted that these cases did not directly apply to his situation as they involved global sentences for a crime spree.

The legal issues before the court were whether the sentence for the dangerous driving offence was manifestly excessive and whether the sentence should result in a conviction. The court needed to assess the proportionality of the sentence and whether it was appropriate to record a conviction given the time Bernard had already served. Bernard argued that his sentence should not exceed 18 months and that he had already served more than 70 per cent of that potential sentence. Bernard’s reliance on cases involving adult offenders was not deemed relevant as his case involved different circumstances and the head sentence was part of a global sentence for multiple offences.

The court found that Bernard’s argument that the sentence was manifestly excessive was not persuasive. The court considered the seriousness of the offence, Bernard’s criminal history, and the need for deterrence and rehabilitation. The court held that the sentence was proportionate to the offence and took into account all relevant factors. The court also determined that it was appropriate to record a conviction as the sentence was not excessively punitive and Bernard had not successfully demonstrated that the sentence should be reduced. The court refused Bernard’s application for leave to appeal against the sentence.

The court’s final order was to refuse Bernard’s application for leave to appeal. The sentence imposed by the Children’s Court was upheld as appropriate and proportionate to the offence. The court found no basis to interfere with the sentence or to alter the conviction recorded.

Orders

Orders of the court

Refuse the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bernard (a pseudonym) [2020] QCA 232
PARTIES:	R v BERNARD (a pseudonym) (applicant)
FILE NO/S:	CA No 106 of 2020 DC No 423 of 2019 DC No 47 of 2020 DC No 96 of 2020 DC No 128 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 22 April 2020 (Dearden DCJ)
DELIVERED ON:	27 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2020
JUDGES:	Sofronoff P and Morrison and Philippides JJA
ORDER:	Refuse the application for leave to appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the child 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 – where there were over 30 summary offences which included assault, fraud, burglary, stealing and other less serious offences – where the four indictable offences were comprised of one count of dangerous operation of a vehicle causing death and leaving the scene, one count of unlawfully using a motor vehicle with damage, and two counts of robbery in company with personal violence – where the learned sentencing judge sentenced the applicant to three years and six months’ detention for the dangerous driving offence, with a conditional release order that would be operative after the applicant had served three months’ detention – where his Honour also declared 410 days of detention already served, disqualified the applicant from holding a driver licence, and recorded a conviction on this count – where the learned sentencing judge sentenced the applicant to lesser concurrent sentences to the other indictable and summary offences – where the applicant contends that the sentence imposed on the dangerous operation count is manifestly excessive – where the applicant submits 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 – where the applicant submits that no conviction should be recorded – where the applicant relied on similar cases but these other cases involved adult offenders – where the head sentence imposed was a global sentence for a crime spree which included other serious offending – whether the sentence was manifestly excessive
COUNSEL:	E Mac Giolla Ri for the applicant P McCarthy QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent