Director of Public Prosecutions v Flanagan

[2023] VCC 511

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01341

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELLY FLANAGAN

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2023
DATE OF SENTENCE:	3 April 2023
CASE MAY BE CITED AS:	DPP v Flanagan
MEDIUM NEUTRAL CITATION:	[2023] VCC 511

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Charges of armed robbery, assault, false imprisonment and theft – acceptance of a sentence indication – late plea of guilty – palpable amelioration of sentence - not the principal offender - prior criminal history – time in custody spent productively – pandemic restrictions whilst in custody evidence of remorse - diagnosis of post-traumatic stress disorder – category 2 offences – positive prospect of rehabilitation – consideration of Verdins limbs 5 and 6

Legislation Cited:     Sentencing Act 1991
Cases Cited:            R v Verdins (2007) 16 VR 269
Sentence:                 43 months imprisonment with a non-parole period of 26 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	Papa Hughes Lawyers

HIS HONOUR:

1Ms Flanagan, I propose to sentence you to a total effective sentence of
42 months’ imprisonment and set a non-parole period of 26 months’ imprisonment. I will declare your 416 days of pre-sentence detention, excluding today, as time served under my sentences today.

2You pleaded guilty to two charges of armed robbery and charges of assault, false imprisonment, theft and a summary charge.

3The circumstances of your offending are set out in Exhibit A, the summary of prosecution opening for plea. You accept the accuracy of its factual contents.

4In the morning of 10 February 2022, you rang Kenny Gregory and accused him of taking a phone, not belonging to him.  You demanded he attend your apartment in Melbourne.  With Aytac Gurbuz, you waited for him.  Mr Gurbuz was armed with a machete.

5Mr Gregory arrived at the apartment in the company of Mr Kaladjic, whom he met as he entered the apartment building. He saw the handle of the machete protruding from Mr Gurbuz’s pants. Mr Gurbuz said to him: “Where’s my phone, you know where my phone is”. You then grabbed Mr Gregory’s backpack and satchel. He did not resist because he feared harm. These bags contained a phone, wallet, battery pack and some electronic items. These circumstances constitute Charge 1, a charge of armed robbery.

6You, Mr Gurbuz and Mr Gregory entered the bedroom. Both you and
Mr Gurbuz accused Mr Gregory of taking the phone. Mr Gurbuz kicked him to the head several times and you hit him several times in the head. You then grabbed a pair of scissors and moved them towards his throat while still hitting his head. These circumstances constitute Charge 2, a charge of common law assault. Later, Mr Gregory was taken by Mr Gurbuz and others to another flat.

7That same day, you arranged with Ms Bondeson to be driven to her address in Carlton. While in Ms Bondeson’s apartment, Mr Gurbuz pushed her onto a bed and punched her to the face. After two men entered the room, Mr Gurbuz tied her hands with electrical cord and, while removing the machete from his pants said, “You’re lucky this is all I’m fucking doing to you”. One of the other men took her bags, jewellery and other items including a MacBook Pro and an iPhone. These circumstances constitute part of Charge 3 and the start of Charge 5.

8After Mr Gurbuz and another male left the room, they kept the door closed so that Ms Bondeson could not leave.

9Mr Gurbuz held Ms Bondeson against her will for some time. He demanded money from her, threatening to slice her from ear to ear. Holding the machete to her throat, he demanded she transfer $20,000. She did transfer $3000 in two transactions. This is also part of Charge 5.

10You and Mr Gurbuz used Ms Bondeson’s car keys to steal her motor vehicle. This constitutes Charge 5, theft of a motor vehicle.

11On 11 February 2022, you were arrested at your apartment. You were not interviewed because you were considered unfit to be interviewed.

12At the time of committing these offences, you were on bail.

Victim Impact Statement

13On 28 March 2023, Saffire Bondeson made an impact statement.

14The incident has left her in constant fear for her life. She has been diagnosed with two anxiety-type disorders for which she suffers panic attacks and insomnia. Medicines do not work. She wanted to study at university but cannot concentrate. Her family supports but her state has affected them adversely.

15The incident has rendered her unemployed. Her income has plunged from the significant to very little. The thefts of her property, including her motor vehicle, have significantly affected her financially. She is still without a motor vehicle.

16She concludes her statement:

“Being held hostage for such a long period of time, being degraded, spat on and abused physically and emotionally has definitely changed the way I view myself and who I will become in the future”.

Criminal History

17Between 6 March 2004 and 4 February 2022, you have appeared in a criminal court in this State and Queensland on 15 occasions and have been found guilty or convicted of 144 charges. Your longest sentence of actual imprisonment was imposed on 3 March 2020 which was 222 days’ imprisonment. This was imposed for 38 charges including 10 charges of burglary.

Personal

18You are now 36. You were born and raised in Queensland. You have four older brothers. You are indigenous through your mother. Your parents are in their early 60s. They are living together. Neither enjoys good health.

19Although you describe your childhood as “fairly happy”, by the time you were a teenager, you had no respect for your parents’ relationship. However, at 12, you started to use cannabis before an incident of sexual abuse by an uncle. The uncle was charged, tried and acquitted. This led to your family moving because the uncle lived nearby.

20Your secondary education ended in Year 8. You undertook a diploma in Youth Work but only completed the certificate component.

21You have worked in various jobs, especially those in hotels. Your drug usage rendered you an unreliable employee and you last worked in 2018. Overall, you have worked for about six years.

22Your use of cannabis stopped after the assault. You then used amphetamine. This stopped also after the birth of your daughter. In 2012, you worked as an escort. You started using methamphetamine because the other women were using the drug. During 2019, without you knowing, you took GHB. You have tried other drugs, ketamine, cocaine and ecstasy.

23Your first relationship at 16 produced your daughter, Mystique, who is now 18. Her father left when she was only a month old. You married your next partner but the relationship ended through his aggression and abuse. Although your next partner was “wonderful”, the relationship ended over arguments concerning your daughter. Finally, your next partner was killed by a group of persons. You gave evidence at their trial.

24You have been in custody for 416 days. You have used the time productively. Between January and August 2021, you underwent five tests, none of which revealed the presence of illegal substances. You have completed several short courses and a series of longer courses through the Box Hill Institute. The latter courses resulted in the gaining of certificates 1,2 and 3 in different areas of study. Interestingly, the certificate 1 was gained in information, digital media and technology, which I take as a most positive sign.

Psychologist

25Warren Simmons is a psychologist. At the request of your solicitors, he interviewed you on 30 October 2022 and reported.[1]

[1] Report dated 4 November 2022.

26After considering, but not making a diagnosis of attention deficit hyperactivity disorder, Mr Simmons diagnosed you as suffering from a post-traumatic stress disorder. This disorder was caused by the witnessing of the murder of your friend. Its symptoms were aggravated by you giving evidence at the trial of those involved. The symptoms of disorder are not well controlled despite you taking, mainly, Sertraline and Seroquel. The prescription of these and other medicines started while you have been in custody.

27Mr Simmons recommended treatment for the post-traumatic stress disorder by a skilled therapist. He suggested a broader investigation of whether you suffer from an attention deficit hyperactivity disorder.

Discussion

28Your offending involves all of the purposes of sentencing. My sentences should emphasise general and specific deterrence. They should also emphasis a denunciation of your behaviour, recognising the harm it has inflicted on Ms Bondeson in particular. I must also look at your rehabilitation. There are positive signs emerging from your time in custody. Upon release from custody, you intend to return to Queensland where your parents and brothers live. You expect their support.

Maximum penalties

29The maximum penalties for the charges are:

(a)   armed robbery – 25 years’ imprisonment;

(b)   common law assault – five years’ imprisonment;

(c)   false imprisonment and theft of a motor vehicle, each 10 years’ imprisonment.

30the charge in relation to the bail offence, three months' imprisonment.

Gravity

31You were not the principal offender in the offences involving Mr Gregory, although you did assault him. The evidence does not establish you knew your co-offender, Mr Gurbuz, possessed the machete. In fact, it was not produced but the threat of its presence in your co-accused pants was sufficient to induce Mr Gregory to comply with the demands made of him.

32Again, you were not the principal offender where Ms Bondeson was involved. Although you were present in the bedroom, it unclear how long you were there and at what stages of the offending against Ms Bondeson. 

33It cannot be said you were a secondary participant in the theft of her motor vehicle.

34Your offending occurred over a relatively short time scale even though it involved two residences in different Melbourne suburbs.

35Both charges of armed robbery are category 2 offences under the Sentencing Act. Unless there is an exception, both attract sentences of imprisonment. There is no exception.

36You were on bail when you committed these offences, and s16(3C) of the Sentencing Act applies. This is Parliament’s way of accommodating the effect of that aggravating feature. Its existence limits the principle of totality, without eliminating it.

Guilty pleas

37Your guilty pleas came after a sentence indication. In terms of timing, they came relatively late in the process starting with the laying of charges and ending with a trial before a jury.

38Nevertheless, they benefit the criminal justice system in a practical sense. By removing your case from the cases requiring a trial, you have allowed other cases to obtain a trial sooner. This aspect has an enhanced benefit to you while this and other criminal courts struggle to overcome the backlog of cases due to the suspension of jury trials during the pandemic. This consideration still requires a “palpable amelioration” of your sentence. It also relieves a large number of witnesses the task of giving evidence, which is never an easy task, especially for the victims.

39Your guilty pleas are evidence of your remorse and your efforts in custody are further evidence. I accept you are remorseful. By a considerable margin, my sentences are the longest you have received. This should act as a deterrent to further offending and may direct you into the various paths to rehabilitation. However, you have significant mental health issues. They are longstanding and require effective, and I daresay, lengthy treatment. Overall, I assess your prospects of rehabilitation as positive.

40You have been in custody during the restrictions caused by the pandemic. They have seen restrictions in prison which are alien in normal times. They have made you time there more difficult. This is a mitigating factor in sentencing you. 

41Prisons are difficult environments at the best of times. You gave evidence at a proceeding arising out of the death of Veronica Nelson. This brought you into conflict with other prisoners. You were assaulted by a fellow prisoner.

Verdins

42You rely on principles or limbs 5 and 6 stated in R v Verdins[2] . You rely upon the report of the psychologist, especially at [28].

[2](2007) 16 VR 269.

43Mr Simmons lends no support to the application of limb 6.

44As to limb 5, Mr Simmons noted your sleep was disturbed by nightmares, flashbacks of the murder and other bizarre dreams. This occurs most nights and leaves you tired and irritable in the morning. You feel the medicines stimulate your appetite where, otherwise, you would not eat well. You have retained your long-term problems with concentration and memory. You lack energy and motivation. You are constantly tearful.

45None of these matters is attributable to the prison environment. They occur in that environment but would have occurred in the community anyway. At least, in prison you are receiving mental health treatment. I do not consider limb 5 applies.

Sentence

46On Charge 1, a charge of armed robbery, I sentence you to 24 months’ imprisonment.

47On Charge 2, a charge of common law assault, I sentence you to six months’ imprisonment.

48On Charge 3, a charge of armed robbery, I sentence you to 30 months’ imprisonment.

49On Charge 4, a charge of false imprisonment, I sentence you to 18 months’ imprisonment.

50On Charge 5, a charge of theft of a motor vehicle, I sentence you to
12 months’ imprisonment. In addition, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 36 months.

51On the summary charge, a charge of committing indictable offences while on bail, I sentence you to one month’s imprisonment.

52The sentence on Charge 3 is the base sentence. Five months of the sentence on Charge 1, five months of the sentence on Charge 4, and the sentence on the summary charge are to be served cumulatively upon themselves and the base sentence. The other sentence of imprisonment is to be served concurrently.

53The total effective sentence is 42 months’ imprisonment. I will set a non-parole period of 26 months’ imprisonment.

54I declare the 416 days of your pre-sentence detention (excluding today) as time served under my sentences.

S 6AAA

55Absent your guilty pleas, I would have sentenced you to a total effective sentence of 60 months’ imprisonment.

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