Director of Public Prosecutions v Flanagan

[2023] VCC 576

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL JURISDICTION

SEXUAL OFFENCE LIST

Revised

Not Restricted

Suitable for Publication

Indictment no. L10297086

Court ref. CR-21-00317

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY SHILOH FLANAGAN

---

JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF PLEA:	4 April 2023
DATE OF SENTENCE:	14 April 2023
CASE MAY BE CITED AS:	DPP v Flanagan
MEDIUM NEUTRAL CITATION:	[2023] VCC 576

REASONS FOR SENTENCE

---

Subject:Criminal Law – Sentence

Catchwords:              Jury verdict - guilty of one charge of rape – where offender and victim were friends – where the victim was asleep – opportunistic offending – no criminal history – standard sentence offence – Application of Verdins principles – significant delay

Legislation Cited:      Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1)

Cases Cited:DPP vMokhtari [2020] VSCA 161

Sentence:                  5 years and 8 months' imprisonment with a minimum non-parole period of 3 years and 6 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D. Rofe	Victoria Legal Aid

HIS HONOUR:

1Bradley Flanagan, on 2 February 2023, after a short trial which was held in the Latrobe Valley, you were found guilty by jury verdict of one charge of rape, for which the maximum penalty is 25 years' imprisonment.

2The victim in this matter is Ms Kelly Granger[1].  Ms Granger moved to an address in Phillip Island in 2016 with Tom Brown[2].  Ms Granger and Mr Brown had been in a relationship before moving to Phillip Island, but that relationship was over by the time of this offence, and they were housemates.

[1]A pseudonym

[2]A pseudonym

3The house they lived in had two storeys, each with a separate living apartment.  There are three bedrooms on the top storey, two bedrooms on the bottom storey and a self-contained kitchen and laundry/bathroom on each level.  The two storeys were connected by an external staircase which led to an external veranda on the top level.  Ms Granger lived on the top level and Mr Brown on the ground level.

4The house was at the end of a cul-de-sac.  You lived directly across the street from Ms Granger's house.  You and Ms Granger got to know each other as neighbours, and you became friends.  You shared common interests including movies, video games and your dog.  She described your relationship as 'friendly'.  Ms Brown said she would see you weekly, no more or less than most of the other neighbours, often when you had both come home from work.  There was evidence about previous occasions prior to this incident where you had been together playing games and drinking.

5Ms Granger said she had been to your house a couple of times, but mostly you came to her house.  She said that usually the two of you had a few drinks on the balcony, smoked and hung out together. Sometimes, but not regularly, you played video games in the living room and watched a movie or played an Xbox game on the Xbox console in her bedroom.  When you would watch a movie in her bedroom, she said you would both sit on the bed as if it were a couch.

6Ms Granger gave evidence that on Wednesday 7 November 2018, you came over to her house to see if she wanted to hang out with you. She thought it would have been about 4.30pm or 5.00pm, but the precise time was not exactly clear, and nothing turns on it.  She said she was at home applying fake tan.  Again, there were some inconsistencies about exactly when the fake tan was applied, but nothing turns on that.  She gave evidence that after applying the fake tan, she wore a loose-fitting dress.  She said she offered you some red wine and the two of you had a few drinks on the verandah.  She said the idea came about to watch a movie.  You went back to your house to get a DVD, which was one of the Star Wars movies.  After a few hours, the two of you went to Woolworths together to buy a packet of cigarettes.

7When you returned from Woolworths, you resumed drinking together on the verandah.  You started to play the game Guitar Hero before watching the movie.

8You then watched the movie in Ms Granger's bedroom.  She said in evidence that at one stage you tried to kiss her, but she pulled away and said, 'No'.  She also described that at one point in the evening, her shoulder dislocated, something which happened to her frequently, and she asked you to help put her shoulder back into place.  She then took some Celebrex, which is an osteo medication for her joints.

9The two of you continued to drink wine while the movie was playing.  You were both lying on her bed.  Many hours seem to have passed by.  When the movie finished, Ms Granger decided to call it a night and go to sleep.  She said it was very early in the morning by that time.  She looked at the clock, and it was 5.15am.  She then fell asleep facing away from you towards the window.  You were on the bed.  She gave evidence the two of you had stayed over in such circumstances on a previous occasion and slept on her bed.

10She gave evidence that the next thing she remembers is waking up with pain in her abdominal region.  She described cramping.  She said her clothing was rolled up to hip height.  She got up and made her way to the bathroom.  She described a stinging pain on her upper thigh and fluid in her vagina.  She said that when she had woken up, you were still in the bed under the doona.

11In the bathroom, she was crouching on the floor, trying to work out where the pain was coming from.  She grabbed a handful of tissues and noticed more fluid from her vagina.  She described observing a scratch on her upper thigh about an inch long, which she described as raw.  Photographs tendered at the trial showed the tissues on the floor in the bathroom.

12She said that at one point you came to the bathroom door and asked her what was going on and whether she was okay.  She told you to get Mr Brown from downstairs.  Soon after, Mr Brown came to the bathroom.  By this time, you had disappeared.  She told Mr Brown that she felt like something had happened.  They then made an appointment to go and see a doctor.  Before doing that, Ms Granger called her mother, who is a doctor.  Her mother told her to go to the police station.  She went to the nearest police station.  Mr Brown, in his evidence, said Ms Granger was 'discombobulated'.  She was very 'sort of like shook' and said she did not actually know what had happened and she was a bit all over the place when he first spoke to her.

13After Ms Granger went to the police station, she was provided with an early evidence kit, and samples were supplied for examination.

14She made a statement to police, and a medical examination was conducted that evening by a forensic nurse.

15The forensic evidence in the case was ultimately that the sperm identified in the samples from the complainant matched you as a contributor to the sperm sample.

16You gave evidence in the trial.  The lead-up circumstances were largely undisputed apart from a couple of issues on which nothing turns.  You said that you ended up watching the movie.  Ms Granger said it was getting late and that it was time to call it a night.  You agreed with that.  It was very early in the morning.  You said that as the two of you were going to sleep, Ms Granger proceeded to nuzzle back towards you and started to rub her backside into your crotch.  You gave evidence that she lifted her skirt up around her thighs and continued pushing back against you.  You gave evidence that she said, 'Are you gonna put it in?'.  You said that you undid your belt and you put your penis in her vagina.  On your account, she was moaning, and you were under the impression that she was awake and, in your words, 'instigating it in consent'.  You said that, from her actions and what she said, you believed she was consenting.

17It is clear from the jury verdict that they rejected your account.  I sentence you on the basis that the jury rejected the suggestion that Ms Granger may have been performing those actions in her sleep and rejected that you had a reasonable belief in her consent.  The jury was clearly satisfied, based on Ms Granger's account, that she was asleep at the time of the penetration, and they were satisfied that you knew or believed she was asleep at that time.  That is the only assessment of the facts consistent with the jury verdict.

18You gave some evidence about a text conversation or text messaging between you and Ms Granger that took place approximately a month or so after this event where you initiated the text conversation seeking the return of your DVD.  Ms Granger accused you of rape, and you denied it.  It was striking, I thought, that you had no contact, seemingly, with Ms Granger between the night of this incident and when you initiated that text exchange.  Nonetheless, it is plain the jury rejected that denial as well.

Victim Impact Statement

19Ms Granger made a victim impact statement in which she said that she felt physical and emotional pain at being subjected to a 'rape kit' that took several hours.  She said her overall well-being and enjoyment of life has declined dramatically since the incident due to depression and severe anxiety.  She is finding it difficult to maintain intimate relationships and describes strained personal relationships.  She says these events have also placed a strain on her family and workplace relationships because of ongoing mental health issues and court proceedings.  She describes changes in mood and personality because of her hurt, anger and frustration in dealing with delayed court proceedings.  She refers to sleep deprivation and that she could not sleep in her bedroom for two years, especially when home alone.  She has been taking antidepressant and antianxiety medication because of this offence.  She says this offence has drastically hindered her career objectives and opportunities.  She was not able to continue tertiary studies and has significantly reduced her workload in a new job placement.

20It is apparent from her victim impact statement that the ongoing emotional and psychological effects of your offending are substantial.  The offence has had a profound impact on her.  As required by the Sentencing Act 1991, I have taken into account the substantial impact of your offending on Ms Granger as one of the factors to which I must have regard in deciding the sentence in this matter.

Gravity

21Rape is an inherently serious offence, as reflected by the maximum penalty of 25 years' imprisonment and the standard sentence of 10 years' imprisonment.

22The prosecution in their submissions relied on the following features as being relevant to my assessment of the seriousness of the offence:

(a)the offending took place in the victim's own home and bedroom where she was entitled to feel safe;

(b)the victim trusted you enough to allow you to sleep next to her in her bed, and you took advantage of your relationship with her;

(c)the victim was not conscious and therefore was vulnerable, and you used her body for sexual gratification when she was not able to articulate her lack of consent or provide any resistance; and

(d)you did not use a condom and you ejaculated inside her vagina, placing her at risk of pregnancy and potentially a sexually transmitted disease.

23I accept these features are all serious aspects of the offending in this case.

24Mr Rofe submitted that the relationship between you and the victim was not one which inherently involved trust but accepted that your conduct did, to an extent, breach the trust of the victim, who allowed you to be in her bedroom.

25In the case of Mokhtari,[3] cited by the prosecution in their submissions, the
Court of Appeal said:

The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent.  It is, quite simply, an act of violence, whether or not accompanied by other violent conduct.  The violation is physical, emotional and psychological.  It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.

[3] [2020] VSCA 161 at [41].

26As submitted by your counsel, your offending was not accompanied by violence beyond that inherent in the offence or any additionally degrading behaviour.  However, Ms Granger was, by virtue of being asleep, essentially powerless to prevent your offending.

27In my opinion, this was an opportunistic offence.  It has not been suggested, and nor do I believe that you planned throughout the night to commit this offence.

28It emerged from the evidence that you were attracted to Ms Granger, but she saw you as a friend.  You conceded your attraction in your evidence.  You opportunistically violated her when she was asleep, in the context of alcohol consumption and having spent the night with her as a friend.  You took advantage of the circumstances, presumably thinking your conduct would pass undetected because she had fallen asleep after having consumed a reasonable amount of alcohol.  You treated her as nothing more than an object for your sexual gratification.

29In the circumstances here, the opportunistic nature of the offending does not greatly affect the assessment of your moral culpability, which I regard as significant.

30Rape is a standard sentence offence.  As I have already observed, the standard sentence is 10 years.  The standard sentence applies to an offence in the middle range of seriousness, considering only its objective factors.  A standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case.  It is a legislative guidepost.  It is not a mandatory sentence, nor is it the starting point from which to add or subtract time.  In fixing a sentence in this matter, I have had regard to the standard sentence amongst all the matters to which I must have regard in deciding the appropriate sentence.  The sentence I will impose in this matter is lower than the standard sentence.

Personal circumstances

31On the plea hearing, a psychological report from Dr Mathew Barth was tendered as an exhibit.  Your personal history is set out in the report and was discussed on the plea by your counsel, Mr Rofe. 

32You are the oldest of four children.  You were raised in the south-eastern suburbs of Melbourne.  You had a positive childhood and you do not describe any abuse or mistreatment in the family home.  However, according to Dr Barth, you engaged in 'oppositional behaviour' which caused conflict with your parents, and you were asked to leave the family home at the age of 15.  Apparently, you lived in residential care with other young people in your situation.

33You were a heavy cannabis user at that stage.  As you got a bit older, your behaviour stabilised, and you lived independently.  You do not blame your parents for having you leave the family home, and you have always maintained contact with your family.

34Your younger sister died after you were remanded in custody; that was in February.  You were distressed at being unable to attend her funeral.  Her death has compounded the emotional turmoil you have experienced since the guilty verdict.  I am told and I accept your family remains supportive of you.

35You describe behavioural difficulties during secondary school, difficulty establishing friendships and being subjected to bullying.  You left school at the end of Year 10.  You started an apprenticeship as a baker, but you did not enjoy that work, and you eventually completed an apprenticeship as a chef.  You have been employed in that capacity for some 20 years.  You have worked at various restaurants throughout Victoria.  You have a stable work history.  Your most recent employment was at the Victoria Hotel in Elmore.  You are concerned about your future employment prospects given the nature of the offence for which you have been convicted.

36You describe several intimate relationships as an adult.  You are presently in a relationship with a woman named Holly Foster.  You and Ms Foster have been together for about three years.  She was your primary source of support during these proceedings, and you plan on a future together when you are ultimately released from the prison sentence that is inevitable for this offending.  She provided a reference for you in which she says that you are an honest, caring and hardworking person with whom she has always felt safe and secure.  She describes how these proceedings hanging over your head has impacted you and strained on your relationship.

37Going back to your history, you stopped using cannabis in your mid-20s and describe being a moderate social drinker for most of your adult years.  However, after you were charged with this offence, your drinking increased.  You felt overwhelmed and suffered depression and suicidal ideation.  It was in this context that you abused alcohol and became socially withdrawn.  You describe trying to hang yourself on one occasion.  You also describe that your mood deteriorated further following the guilty verdict and being remanded in custody.  Your sister's death exacerbated your mental state.

38Dr Barth describes you as experiencing significant depressive symptoms since you were charged in 2019.  He says that your presentation at clinical interview, and his observations of you, are consistent with your self-report.  He said your symptoms warrant a diagnosis of 'persisting depressive disorder'.  He said you are at risk of further deterioration in your mood, and that ongoing treatment is unequivocally warranted.

39Dr Barth described you as being of normal intelligence with no formal thought disorder and unimpaired moral reasoning.  He commented that the offending indicated a distorted concept of sexual boundaries.

40Dr Barth was not able to reach a definitive conclusion about your 'interpersonal and sexual adjustment' given your continued denial of the offending.  He did, however, comment that a sex offender treatment program would assist you in gaining insight into your offending behaviour.  He conducted a risk assessment for sexual recidivism and found you to be a low-moderate risk.

Prospects of rehabilitation

41Mr Rofe submitted on your behalf that you have good prospects of rehabilitation given your strong work history, the lack of prior convictions and the opportunistic nature of the offending in this case.  He submitted your abuse of alcohol was reactive to the stress of the proceedings rather than indicative of a risk factor for future offending.

42In my opinion, considering the opportunistic nature of this offence; the assessment of Dr Barth that you are a low to moderate risk of recidivism; the absence of any relevant criminal antecedents as an adult; the fact that you will be in custody for a significant period of time for the first time (and my view that this will operate as a significant deterrent to you), I have ultimately formed the view that you do have good prospects of rehabilitation.  However, this is a case where the defence cannot rely on remorse or insight, a point made in Dr Barth's report.  There is, therefore, a need for some caution in assessing your rehabilitative prospects.

Delay

43I have taken into account the delay in bringing this matter to resolution as an important mitigating factor.  The initial complaint to police in this matter was made in November 2018.  You were arrested on 14 January 2019.  You were not charged until February 2020.  The police brought an application for a compulsory forensic procedure in the Magistrates' Court in 2019, which was not finalised until August of that year because the police could not locate you.  The DNA result matching your sperm/DNA to the vaginal swabs was provided in August 2019.  You were charged on 27 February 2020.

44The following committal proceeding was adjourned twice in 2020 due to
COVID-19 and ultimately took place on 15 February 2021.  The trial was first listed but not reached in February 2022 and then was adjourned on a defence application from August 2022 until January 2023 when I heard the trial.

45So, it is now over four years since you were interviewed and close to four and a half years since you committed this offence.  A few months of the delay is attributable to the fact that the police could not find you in 2019 for the forensic procedure application, and the adjournment of the trial in August last year was on your application, but most of the significant delay cannot be attributed to your actions.

46A good deal of the delay has plainly been because of the interruption of the pandemic to court proceedings.  This is a substantial delay by any measure.  It is apparent from the report of Dr Barth that the legal proceedings have weighed heavily upon you and the delay has contributed to the psychological issues that he describes in his report.  Further, you have not reoffended in the period it has taken to resolve this matter.  I take into account delay as an important mitigating factor in accordance with the authorities on that point.

47Of course, you do not have the benefit of the utilitarian value of a plea of guilty, which includes sparing the witnesses, in particular Ms Granger, the experience of giving evidence about these matters.  A guilty plea would have given her closure at a much earlier time.  That said, you are not to be punished for running a trial in this matter, but you are not entitled to the significant mitigatory benefits that a guilty plea provides.

48Mr Rofe submitted that limbs 5 and 6 of Verdins apply; namely limb 5, that your mental health will increase the hardship experienced by you in prison and that limb 6 has application, namely that there is an appreciable risk that your mental health will decline during your sentence.  The prosecution accepted, based on Dr Barth's report, that these factors have some application, although modest.

49Dr Barth said that there is an appreciable risk your mental state could deteriorate further in the period immediately after sentencing, and that you will be vulnerable because you have limited coping skills for your depression, and you will find the process of imprisonment arduous compared to an individual of normal health.

50I take these matters into account as increasing the burden of your imprisonment, and I take into account Dr Barth's view that there is an appreciable risk your mental state could deteriorate.  This is against a background of suicidal ideation.  I also take into account the prospect of some continuing uncertainty surrounding the pandemic and prison conditions as increasing the burden of your imprisonment or potentially increasing the burden of your imprisonment.

51Mr Rofe submitted that it is in the interests of justice that I impose a non-parole period between 50 and 60 percent of the head sentence because, of course, in standard sentence cases, I am constrained to impose a non-parole period of not lower than 60 per cent of the head sentence unless it is 'in the interests of justice' to do so.

52I have found that you have reasonably good prospects of rehabilitation, but it is prudent to exercise some caution given the absence of remorse and insight into the offending.

53The non-parole period mitigates punishment in favour of rehabilitation, but the period fixed before you become eligible for parole must be commensurate with the objective gravity of the offending.

54In the end, taking into account the circumstances of this matter, I have formed the view that a non-parole period of around 60 per cent of the head sentence is appropriate, having regard to your personal circumstances and the circumstances of the offence.  The period that I will impose is slightly more than 60 per cent.

55In sentencing you for this offence of rape, general deterrence is an importance factor – that is, the need to send a message to likeminded individuals who might consider engaging in this type of serious criminal conduct, that punitive consequences will follow if convicted.  Furthermore, I must denounce this serious criminal behaviour by the sentence that I impose.  Just punishment, as well, is a significant sentencing consideration in this matter.  I will reflect the need to facilitate your rehabilitation in the non-parole period that I will impose.

Sentence

56Mr Flanagan, for the charge of rape, you are convicted and sentenced to five years and eight months' imprisonment.  I fix a non-parole period of three years and six months.

57I declare the period of imprisonment that you have already served as 71 days, which will be deducted administratively from the sentence that I have imposed.

‑ ‑ ‑