Director of Public Prosecutions v Flanagan

[2015] VCC 1921

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-01716

DIRECTOR OF PUBLIC PROSECUTIONS

v

RILEY JAMES FLANAGAN

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2015
CASE MAY BE CITED AS:	DPP v Flanagan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1921

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P.L. Bourke
For the Offender	Mr A. Malik

HIS HONOUR: 

1Riley James Flanagan, you pleaded guilty to one charge of attempted armed robbery, and a second charge of causing injury intentionally.

2You also admitted some previous court appearances.  Whilst it is true that you have not previously been convicted of any offence, you have appeared before the courts, including the Children's Court, on six previous occasions; on one previous occasion in relation to recklessly causing serious injury to someone, and on two previous occasions in relation to causing damage to property.  You clearly do have an anger management problem which needs to be dealt with. You were also previously dealt with in the Children's Court when you were a very young person on the charge of assault with a weapon, so I reiterate what I have just said, you clearly have an anger management problem.

3The circumstances of your offending in this instance was set out by the prosecution in the Crown Opening, which was marked as Exhibit 1 has been tendered. Very briefly stated, the circumstances involved serious criminal conduct.  On the day in question, the victim was at his own home when he received a phone call from a mutual friend, Jade Stewart, requesting him to come over to her house in McGregors Road, Warrnambool.

4The victim, Mr Corneby, had been unemployed for some time and suffered an ice addiction.  In order to feed his own addiction, he had been purchasing relatively small quantities of ice which he on-sold to others to make a small profit to fund his own addiction. When he went arrived at Ms Stewart's house on 4 March 2015, he sat down in her lounge room, when suddenly your co-offender, Mr Rowen Peck, and yourself, emerged from a bedroom and confronted him.

5At the time you were aged 19.  On the other hand, Rowen Peck was ten years older than you, aged 29.  From the material that has been put before me, I understand that you were using ice and were obtaining that from Mr Peck. In any event, you were there with him, assisting him, when he accosted the victim on 4 March at Ms Stewart's place.

6In the lounge room, Peck was yelling at him, "Where's my money?  Where's my money?” which related to money that he owed Peck, apparently for ice that had been previously obtained from him. As Peck was demanding his money, he had a wooden bat in his hands and he started attacking Corneby with it, beating him to the head, the face and the arms.  You were present, and as the law puts it, acting in concert with him.  You are equally responsible for what happened; these circumstances described are the basis of the charge of attempted armed robbery.

7Mr Corneby, whilst under attack, grabbed a curtain rod and used it to break a window.  He then escaped through the window.  You and Peck followed him through the broken window and chased him down McGregor Road.  You eventually caught up with Corneby. He was tripped up and the two of you continued to assault him.  Peck was hitting him with the wooden bat; you were punching and kicking him.  He was curled up on the ground attempting to defend himself.  He could see both you and Peck attacking him as he lay there on the street. This was an appalling attack: It was violent; it occurred on a public street; it was two against one; your co-offender was armed with a bat; it was also a cowardly attack.  Those circumstances are the basis of the charge of causing injury intentionally. 

8Whilst you pleaded guilty to the charge of causing injury intentionally, it is clear that Mr Corneby suffered significant injuries, including a broken elbow which required at least two operations to repair it.  He also suffered lacerations to the right-hand side of his head which required stitches, and lacerations to his ring finger and abrasions to his shin.

9A victim impact statement has been tendered and marked as Exhibit 2. 

10Let me read to you from part of the Victim Impact Statement. I take into account, as I am required to, the impact of your offending upon this victim. From a psychological, emotional point of view, he explains in some detail, which I will not repeat, that he does not trust anyone anymore and that he had regarded Peck as his mate who turned on him.  He is paranoid when people come around; he finds it hard to form friendships; he feels lonely and isolated; he has to depend upon his family for support. As far as his physical injuries are concerned, his broken elbow, according to his victim impact statement, required two surgeries for the placement of pins and wires in his arm and elbow. He says that he has had numerous appointments for X-rays and five or six appointments for follow-up with his doctors.  He still experiences loss of movement in his left elbow which will be, he is told, possibly permanent. He may require further ongoing treatment for his elbow.  He was not able to work for seven months.  He had to stop playing football.  He could not go fishing any more.  His elbow is still painful in cold weather or when it touches something.  It aches while he sleeps.  He finds it hard to do many things, due to the fact he has a reduced ability to move and a loss of strength in that arm.

11Mr Corneby’s injuries have been ongoing and may be ongoing for some time, if not for the rest of his life, for all anyone knows. This is a very serious example of the charge of causing injury intentionally and you have a prior history for assaulting people and damaging their property.

12A very comprehensive plea in mitigation was made on your behalf by your counsel. I had read his written submissions before I came on to the Bench.  A detailed forensic psychological report by the experienced forensic psychologist, Mr Cummins, was relied upon.  It was marked as Exhibit B. 

13From the written material before me, I have some information about your background and education history.  You were brought up in Warrnambool by your parents, until they separated when you were aged about 15.  You have one younger sister.  Both of your parents have now re-partnered.  They are both decent people, there is no history of antisocial, let alone criminal behaviour, in your family. It is clear that your parents are still supportive of you, both of them.  Your father was here in court again today to demonstrate his support.  You lived with him whilst you were on bail.

14You had a difficult education.  You missed school during Year 10, as a result of being expelled, as I understand it from the material, as a result of pushing a teacher when he attempted to take a mobile phone from you.  You were involved in some bullying at school.  When you were in Year 8, or at the beginning of Year 9, you were diagnosed with ADD and prescribed Ritalin by the forensic psychiatrist, Dr Christian Fiddler, of Warrnambool.  As I understand it, you took the Ritalin for about two years.

15Upon being expelled from school, to your credit, you got employment at the fish and chip shop in Port Fairy where you worked for a few months.  You then attended the Warrnambool TAFE, to do a foundation year for Year 10.  It was a one month course, and then you were able to obtain an apprenticeship as a builder/carpenter which was a wonderful opportunity. Unfortunately, you gave up after eight months because, as you told Mr Cummins, "I was smoking too much weed and I got lazy".

16Since then you have been unemployed.  You have been on a Youth Allowance apparently with a disability supplement, so Mr Cummins understands, probably as a result of your previous diagnosis of ADD. You have also been diagnosed, and probably received some treatment from Dr Claire Mooney in relation to the ADD.

17You still have a relationship with your partner, Alana Shand, which has been problematic for you.  Ms Shand is about nine years older than you and has some children.  She has had a serious drug problem too and was using ice whilst a young mother.  A shocking state of affairs. I understand, from what I have been told, that she was arrested also and, since then, has given up using ice, especially because the Department of Human Services may become involved in relation to the children.  I can only hope that now that you have both been shocked by the reality of where this life that you had been leading has ended up; she risked losing her children; and, you in gaol at your young age. I can only hope that you have both woken up to yourselves. Ms Shand has every incentive to keep away from drugs and to live a good life so that she can be a good mother.  If you are still in the relationship with her, you have every incentive to rebuild your life in a decent way so that you can assist her and her children.  You are lucky, you have tremendous support from your father and your family.  You have potential, you are still young.  You can get back into an apprenticeship and start again.  There is no reason why you cannot.

18In gaol you have been surrounded by people who other members in the community sometimes describe as "losers".  It is an awful expression, but they are losers, in the sense that they have lost opportunities, they have lost their futures, and they have lost hope.  You still have all that ahead of you.  You are 20 now.  You have got to take responsibility for yourself, your parents can only do so much.

19Your counsel attempted to persuade me to let you out of gaol straight away on a community corrections order.  I am not going to do that.  I have carefully read the victim impact statement, I have looked at your priors.  I have considered the fact that you were 19 at the time, you were not 17 or 18.  You have been in court before, you have had chances before.  This is very serious offending and it requires more time to be spent in gaol before you are released.  I regret having to tell you that, particularly at this time of the year.

20However, I do regard you as having very good prospects of rehabilitation, given your inherent talents, the support you have got in the community, your youth.  You pleaded guilty to these matters. I have taken all those matters into account, but you will spend some more time in gaol. On these two charges of attempted armed robbery and causing injury intentionally, which were two parts of the one shocking incident, I am going to sentence you to an aggregate term of imprisonment of nine months' imprisonment, together with a community corrections order for three years.  That is a long time, is it not?

21I am making it three years because, as the Court of Appeal has emphasised, and your counsel emphasised, it is part of the punishment.  It is part of the sentence.  It is effectively a sentence of three years' and nine months'.  You will do nine months in gaol, including the time you have already served, and then you will be serving the rest of the sentence in the community, under supervision.  Do you understand?

22OFFENDER:  Yes, Your Honour.

23HIS HONOUR:  I will be declaring that you have already served 209 days by way of pre-sentence detention which will come off the nine months; do you understand?  I think that means you should get out in about six or seven weeks' time.

24You will then commence your community corrections order.  For the first two years of that order, there will be what is known as intensive supervision.  For the first two years you will be under supervision of a community corrections officer.  For the first two years you will be required to perform 200 hours community work by way of further punishment and also because that, itself, is part of the rehabilitation process.

25For the first two years you will be required to undergo assessment and treatment in relation to drug addiction.  I know, and I have taken into account that you have stopped using, and you are determined to stop, but the drug treatment is also designed to prevent relapse.  Do you understand?

26During those first two years you will be required to undergo offending behaviour programs, including in your case, anger management programs, and programs directed in helping you to obtain employment.

27I will direct the 100 hours of the drug treatment and offender behaviour programs may be credited against the community work.  Do you understand?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  I am also going to make a condition that you will be subject to judicial monitoring.  So I will be seeing you again in six months, to see how you are going.  I am doing that because of the seriousness of your offending and I want to make sure that everything is up and running in terms of the order and that you are complying.  Do you understand all of that?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR: I declare pursuant to s.6AAA of the Sentencing Act, that but for your plea of guilty, I would have sentenced you to three years' imprisonment, with a minimum non-parole period of 18 months.  That would have been a very short minimum non-parole period, given the gravity of your offending, but, again, I would have taken into account your youth, and the other matters that I have just summarised, especially the family support you have and your good prospects of rehabilitation, so you can see you have received a real benefit by virtue of your plea.

32I make an order pursuant to s.464ZF of the Crimes Act, that you provide a buccal swab for the purpose of obtaining a DNA to be placed on the database. Do you understand that? I am obliged to tell you that if you do not co-operate when that procedure is being undertaken, the authorities may use reasonable force to obtain a blood sample. I am sure you will co-operate of course. I have made that order in light of the seriousness of the circumstances of your offending and bearing in mind that it was not opposed.

33HIS HONOUR:  The order will now be prepared, Riley, and you will be asked to sign the order.

34MR MALIK:  Might I approach him, Your Honour, to sign it?

35HIS HONOUR:  Yes, of course.

36I hope you understand, Riley, I carefully considered the matter and felt obliged to impose such a sentence upon you, particularly bearing in mind the extremely ugly circumstance of this very violent assault took place in a public place upon a man lying on the ground.  Do you understand?

37OFFENDER:  Yes.

38HIS HONOUR:  The community has to express not only its - the need for general deterrence and specific deterrence, but its abhorrence, its disgust, at this sort of conduct.  You will be required to attend at the County Court at Melbourne at 10 am on Wednesday 4 May.  Do you understand?

39OFFENDER:  Yes.

40HIS HONOUR:  The order provides for judicial monitoring by me but, if, as I expect to be the case, the report on that occasion that I receive from Corrections is positive and tells me how well you are doing, I will not be requiring to monitor of your compliance after that date.

41MR MALIK:  Can I just enquire, Your Honour, whether that is a matter where Mr Flanagan could appear via video link from Warrnambool?

42HIS HONOUR:  Yes, that will be okay, not a problem.

43MR MILAK:  Thanks, Your Honour.

44HIS HONOUR:  All right.  Thank you.  I will adjourn now.

45(Offender removed.)

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