Director of Public Prosecutions v Flanagan

[2015] VCC 1084

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-02201

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW FLANAGAN

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2015
DATE OF SENTENCE:	7 August 2015
CASE MAY BE CITED AS:	DPP v Flanagan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1084

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Offender	Mr D. Cash	Turnbull Lawyers

HIS HONOUR:

1Andrew Flanagan, you have pleaded guilty to three charges of obtaining financial advantage by deception and one charge of attempting to obtain a financial advantage by deception.  The advantage you gained was obtaining senior jobs at three organisations and an attempt to do so at another.  The deceptions were a combination providing prospective employers grossly fraudulent resumes and having dishonest friends lie when they were contact by the employers to enquire about the work history.

2Your deceptions were revealed when you secured a job as the general manager of strategy and business development at Myer Pty Ltd.  Your appointment to that senior position was publicly announced on 18 June 2014.  That announcement referred to your employment at an organisation, Inditex.  You had falsely asserted to Myer that you had held a senior position at Inditex.  Not surprisingly the people at Inditex were taken aback by this palpable false assertion and responsibly and immediately contacted staff at Myer. 

3You were confronted on your first day of attending at Myer's.  You first tried to brazen it out but your deceptions having being exposed meant that you never actually worked for Myer.  Subsequent police enquiries revealed that you had gained three earlier jobs in 2011, 2013 and 2014 using resumes with false details and in respect of the last two jobs you put forward as referees friends who lied on your behalf. 

4Although you secured the positions, your inability to perform at the expected standards in those jobs was quickly revealed and you were sacked.  The first job you had had a remuneration package of $180,000.  You received just over $10,000 for the two months that you lasted.  The second job had a remuneration package of $140,000.  You received about $20,000 or just over for the three months that you lasted there before anomalies in your resume were discovered and you were again sacked.  The third job was as a senior executive with a remuneration package of over $350,000.  You lasted two months there before your inadequate capacity resulted in you being sacked.  Oddly, in my view, this organisation paid you $106,000 as wages but a good portion of that was termination pay.  Accordingly you received around $140,000 that you should not have been paid.

5You secured or attempted to secure jobs with annual salaries of $180,000, $140,000, $350,000 and $400,000.  While the employers had professional human resources staff and were aided in some cases by professional recruitment consultants, they were all taken in by your deceptions and the companies lost money.

6I do not lose site that you secured these jobs in a competitive field over genuine candidates who lost an opportunity to get a job they wanted and were probably well suited for.  Also the costs to business of recruiting staff are significant.  The whole process of recruitment relies on honesty.  Your crimes undermine the trust employers need to have in candidates for jobs.  Your engagement of dishonest friends to falsely vouch for you lifts the level of sophistication in your frauds and thus the gravity of your crimes to a far more serious level.  As does your use of genuine CVs taken from a LinkedIn page on the internet.  That you got away with hoodwinking such senior people in business, who I take are not gullible people, also reveals your concerted efforts to deceive. 

7Your offending has had consequences for the reputation and the livelihood of Ms Tribe who recommended you to Myer.  Although she was not the one who employed you she has found that it is impossible for her to get work in her chosen field.  She had forged a fine reputation over many years.  It is not lost.  She said in her victim impact statement that Myer, who had engaged her regularly and successfully for many years, no longer use her services.  A harsh outcome and one for my part, I hope, can be remedied.

8The prosecution contended that I sentence you as if the maximum term was doubled by reason of the continuing criminal enterprise offending provisions of the Sentencing Act.  The prosecutor, most fairly, acknowledged that the onus was on the prosecution and that the one authority that he put forward on the topic was not one that clearly supported his argument.

9It seems to me the key requirement in sentencing is to sentencing lawfully, justly and in a way that the community and the offender understand and as far as possible, accept.  In my view the contention of the prosecution as to the continuing criminal enterprise is not made out.  I am not persuaded that the financial advantage was the yearly salary of the jobs that you secured or attempted to secure.  You, Mr Flanagan, in your grandiose state of mind wanted these high paying jobs but in the end you secured much less than a yearly income.  In fact your inabilities were revealed fairly quickly and you were justifiably, it seems, terminated from the jobs.

10I do not want my finding that I have just made that these are not continuing criminal enterprise offences to be read as diminishing the seriousness of the offences.  In the end it is your cunning dishonesty and breach of trust that makes your offending as serious as it is.

11You are now 47 years old - is that right or a bit older?  Forty-nine?

12MR CASH:  Forty-seven, Your Honour.

13HIS HONOUR:  Forty-seven.  Someone said 49, I got confused.  I had 47.

14You are now 47 years old.  To this point you have had not had any previous criminal convictions.  You are entitled to rely on this fact in seeking a merciful sentence.  That said the authorities make it clear that previous good character is not to be given too much weight in cases of this kind. 

15You were born and raised in the United States of America.  You secured tertiary qualifications in that country.  You met your wife, who was born in Russia, when she was in the United States.  However she was not accepted as a migrant by the United States and thus you moved and settled here in Australia in 1999.  You have four sons between the ages now of about eight and 13.  The eldest has significant health problems with comprised kidney function.  You have held jobs as a trainer and teacher in a number of privately run business schools.  You are currently unemployed. 

16Dr Lester Walton, the well-known consultant psychiatrist, assessed your mental health.  He noted on your account that a number of your relatives had mental health problems in the past.  He wrote the following as to your own difficulties with your mental health and I quote what he said at some length.

"Mr Flanagan's psychiatric history date back to 1991.  He found himself in a conflict situation with police but the upshot was that he was sent to a psychiatrist.  He was diagnosed as suffering from narcissistic personality disorder with dependent personality traits and he was referred to a treating psychologist who he consulted for four to five months.

By 1999 Mr Flanagan were receiving comments from friends that his personality seemed to have changed.  In particular he was excessively grandiose.  He was psychiatrically assessed again and then diagnosed as suffering from bipolar disorder.  He was commenced on anti-depressant and mood stabilisation medication.  Mr Flanagan stated that he was not especially accepting of the diagnosis and in the face of his mother's opposition to psychiatric intervention, he discontinued the treatment. 

For around a decade thereafter Mr Flanagan was prescribed Acinol, a drug with multiple actions including lower blood pressure but it can be effective against peripheral effects of anxiety and he does seem to - " that is you do seem to "have enjoyed some benefit in that regard.

In August 2014 that is in the aftermath of this alleged offending, Mr Flanagan was assessed at the Black Dog Institute in Sydney, a specialist centre in relation to mood disorders.  The diagnosis of bipolar disorder was confirmed and he was commenced on major tranquilising and mood stabilising Seroquel prescribed by a general practitioner. 

On January 2015 Mr Flanagan was under the care of a specialist psychiatrist again and the continued to meet on a monthly basis.  He is now in receipt of mood stabilising agent, that is the slow release, Lithium, as well as an anti-depressant, Valdoxon.  Mr Flanagan described his treatment as effective.  With the wisdom of hindsight Mr Flanagan believes that he was of elevated mood during the period of his offending".

17Dr Walton went on,

"In terms of mood swings Mr Flanagan stated that he has - as he ages, his cycles of highs and lows have become more frequent but since he is established on his current medication regime the intensity and mood swings has been much less severe.  Typically Mr Flanagan experiences a period of six to eight weeks where he is agitated and given to pressured speech with bursts of energy and grandiose ideas.  This becomes more advanced for a period of two or three months where he additionally hyperactive.  He is given to over-spending, of multiple business ideas of increasingly fantastic proportions and he requires minimal sleep.

Ultimately he is given to entertaining messianic delusions and feeling of invincibility that 'I am the most powerful person on the planet'.  With his being convinced, inevitability, that others would accept such a proposition.  That is, at least at times he does reach a point of frank psychotic mania.

Thereafter 'I crash' with intense feelings of depression of guilt accompanied by suicidal thoughts and this depression may persist for a few months.  Mr Flanagan may enjoy two or three months of relatively quiescent mood before the cycle repeats itself".

18In the view of Dr Walton, he considers this to be "fairly text book description of bipolar disorder".  Dr Walton's view was that your dishonesty in presenting inaccurate accounts of your previous work history is behaviour entirely consistent with a bipolar disorder.  Thus your capacity to regulate and apply appropriate judgment was likely comprised at times of mania and at the times of depression. 

19Thus I must see what you did and why you did it in light of your impaired mental functioning.  It my view it lowers, to a degree, your moral culpability thus permitting less weight to be given to denunciation. 

20The important sentencing consideration of deterrence, especially to others, remains a matter to be given significant weight in cases of this kind.  A message can, and should, be sent that dishonesty at any level in business and employment will be met with punishment. 

21Two important further points relating to your bipolar disorder need to be made.  The first is that although reluctant for many years, you now concede that you have a mental illness and it can, and does, affect your moods and behaviour.  The second important thing is that you are under professional treatment including medication and your illness appears to be responsive and that your current regime of medication is appropriate and finely balanced.  This has important favourable implications for your risk of re-offending and generally for your prospects of permanent reform. 

22You have the continuing support of your wife.  This is important as you both have significant responsibilities in raising four children and as mentioned, the eldest' health is problematic.  As will be referred to shortly, keeping families together is seen as an important consideration in sentencing.

23You wife gave evidence.  She has known of, and tried her best to deal with and help you manage your bipolar disorder for many years.  She has put up with a lot, especially of late, as your crimes have given rise to media attention.  She was employed but is no longer.  You have cost your family much,
Mr Flanagan.  Much economically and more importantly, emotionally.  It is no-one else's fault but yours.  You ought, in the future, do nothing other than make it up to them by being scrupulously honest for the rest of your life.

24Your wife's evidence fortified me in findings that you committed these offences under the influence of your serious mental illness.  To a small degree I see the intense glare of public attention as being mitigatory.  If anything I am sure it will operate as a further deterrent to you. You have lost your reputation and will struggle to find any sort of career in the future. 

25Your plea of guilty came late.  So while your sentence will be less than it otherwise would have been had you pleaded not guilty and being found guilty, may I interpose, almost inevitable that you would have been but the extent of the benefit that you will receive will be commensurate to the lateness of the plea.  You did avoid a trial where witnesses would have to have given evidence perhaps about difficult, embarrassing reputational matters that they had been duped by you.

26I do not consider that much can be said in your favour as to remorse.  Your sentence is not made more severe because of a lack of remorse but simply you do not get the benefit that flows to those who are remorseful for their wrongdoing.  That said you have taken responsibility for your crimes and your plea of guilty is some indication of remorse.

27Your counsel sought a Community Corrections Order.  A report from the Community Corrections staff indicated that you were suitable.  The prosecution, in my view with eminent fairness, submitted that such an order, that is a Community Corrections Order, was within range given the role of your mental illness in this highly unusual case.

28Parliament has made it clear in recent times that gaol is only to be imposed if it is the only option available that would satisfy sentencing purposes.  In this case, of denunciation, deterrence and rehabilitation.  Further in the introduction of this new regime of lengthy Community Corrections Orders the then Attorney-General emphasised the importance of keeping families together as a factor in reducing ongoing offending.

29The Court of Appeal of this State has recently provided guidance to sentencing judges as to the importance of Community Corrections Orders.  Community Corrections Orders are order that, unlike prison, can punish and rehabilitate simultaneously.

30In this case the important sentencing considerations or denunciation and deterrence can be achieved by a sentence other than one involving a prison term.  Due to your bipolar there is a lower moral culpability and given your current insight and treatment your prospects of rehabilitation are positive. 

31A lengthy Community Corrections Order with punishment by unpaid work and treatment can best achieve the relevant sentencing purposes.  A Community Corrections Order as the Court of Appeal has made clear is not a soft option and in  your case, Mr Flanagan, gaol awaits if you do not comply with this order in every respect.  Can you please stand.

32For committing the crimes of obtaining financial advantage by deception and attempting to obtain financial advantage by deception I impose, as an aggregate term, a Community Corrections Order for three years.  The conditions that apply to that are that you must do 400 hours of unpaid work and you must engage in treatment for mental health problems, for alcohol dependency and be under supervision.

33There are other conditions that apply to everyone under a Community Corrections Order and when the document that is produced that you need to sign is printed they will be read out to you and if you consent and sign the Community Corrections Order it will bring the matter to an end.

34My reading of s.6AAA of the Sentencing Act does not require me to indicate to you or the community what I would have done had you pleaded not guilty to this offence and being found guilty of it.  But I consider that is an anomaly by reason of my imposition of a Community Corrections Order.  I want to make it clear to you and to the community that had you pleaded not guilty to these offences you would have been imprisoned with a two year sentence with a non-parole period of one year.  Is there anything else required, Mr Devlin?

35MR DEVLIN:  Apart from a clarification, Your Honour.  our Honour, mentioned in relation to the conditions on the CCO, treatment for alcohol.  Did
Your Honour refer to treatment for mental health?

36HIS HONOUR:  Yes.  I thought I did.

37MR DEVLIN:  You did?  Sorry I missed it.  In that case I've got nothing further.

38HIS HONOUR:  Thank you.  Supervision, mental health ‑ ‑ ‑ 

39MR DEVLIN:  Thank you, Your Honour.

40HIS HONOUR:  ‑ ‑ ‑ alcohol and unpaid work.

41MR DEVLIN:  Thank you, Your Honour.

42HIS HONOUR:  There's no other orders?  You're not seeking compensation or ‑ ‑ ‑ 

43MR DEVLIN:  No, Your Honour, and ‑ ‑ ‑ 

44HIS HONOUR:  Right.

45MR DEVLIN:  ‑ ‑ ‑ there's no other order sought.

46HIS HONOUR:  Thank you.  You can be seated, Mr Flanagan.  Mr Flanagan, can you please stand. 

47The Community Corrections Order that I impose will last for three years commencing 7 August and ending on 6 August 2018.  The conditions that apply to everyone, that apply to you, are these.

48You must not commit another offence for which you could be imprisoned during the time that this order is in force.  Mr Flanagan, almost every offence you can think is punishable by imprisonment and the way forward is, of course, never commit any offence again ever but if you commit an offence punishable by imprisonment in the next three years, it will breach the order.  You will come back before me.  I am unlikely to forget this case and I am certainly not likely to forget that I said to you if you do not comply then gaol awaits.

49You must comply with an obligation or requirement under the sentencing regulations.  That will be, I am told, things like having your photograph taken and detail so they can identify you when you go to various places.  You must report to and receive visits from the Secretary of the Department of Corrections.  You must report to the Community Corrections centre within two clear working days of this order starting.  Your Community Corrections centre is the Dandenong Community Correctional Services in Walker Street, Dandenong.

50You must let the Community Corrections officers know within two clear working days if you change your address or job.  You just have to keep them informed of what is happening.  You must not leave Victoria without first getting permission to do so.  That is any travelling across the border for any purpose.  You must obey all lawful instructions and directions from the Secretary.  Their instructions and directions will be lawful, just do what they say. 

51The conditions that apply to you are these.  That you must perform 400 hours of unpaid community work over the three years.  You must under the supervision of the Community Corrections officers for that period of time.  That will require you going places to see him and so on and you must undergo assessment and treatment for alcohol abuse and dependency as directed by the regional manager and you must undergo any mental health assessments and treatment including psychological and psychiatric assessments as directed by the regional manager.  I am sure they will fit in with your current regime but if they do not and have others you have got to comply with that. 

52Now in respect of the conditions of unpaid work.  You turn up on time, every time and do it all without any demure at all.  It is not optional and it is not at your arrangement.  It is doing what they say you have to do at times and places they say.  If they report to me that you are not doing it and breach you for that, then again I will have little option other than, by reason of your non-compliance with unpaid work, to send you to gaol.  Just think about that for a minute.  Just do the work.

53If you sign that order, I will, that will bring the matter to an end.  When you get a copy of that you are free to leave.  Is there anything else required in relation to this case?

54MR DEVLIN:  No, Your Honour, thank you.

55MR CASH no, Your Honour.

56HIS HONOUR:  Thank you very much for your assistance and the sound resolution of this case. 

‑ ‑ ‑