Director of Public Prosecutions v Flynn

[2019] VCC 1232

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02399

DIRECTOR OF PUBLIC PROSECUTIONS

V

DAVID FLYNN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF TRIAL:	29 – 31 July 2019,  1 August – 6 August 2019
DATE OF PLEA AND SENTENCE:	8 August 2019
CASE MAY BE CITED AS:	DPP v Flynn
MEDIUM NEUTRAL CITATION:	[2019] VCC 1232

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Accused found guilty of 2 charges of committing an indecent act with a child under the age of 16 - 2 complainants aged 9 and 6 - offences happened on the same night while children in bed - offender friend of family – drunk at the time  - offence reported immediately to police  in 2001 – offender left Victoria unaware of summons being issued  - arrested on his return in 2017 – long delay – poor health
Sentence:  15 months imprisonment non parole period 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Hands	Emma Turnbull (solicitors)

HER HONOUR: 

1David Flynn, you have been found guilty by a jury of two charges of committing an indecent act with a child under 16.  You committed the offences on 9 December 2001 when you were staying at the home of a family friend, for the purpose of babysitting the next morning.  The complainants were your friend’s two daughters, Complainant 1 aged nine, and Complainant 2, aged six.

2At the time you were aged 37.  You were an itinerant worker, living at the home of another friend when you were in Melbourne.  She and her family were close friends with the complainants’ mother and her family; indeed, the two families saw each other every day and regarded each other as if they were related.  Accordingly, you were very familiar to the two complainants and you were trusted by them and by their mother.

3In the early hours of 9 December you were dropped at the complainants’ home by your friend on her way to commence her job doing a paper round.  You were in a very drunken state.  The door had been left open for you and a blanket and pillow were on the couch for you.  It was expected that you would let yourself in without waking the family.  This you did, but soon afterwards you went into the bedroom of the elder child, Complainant 1.  You got into her bed.  She was awake and told you to leave.  You did so but you returned and got into her bed.  You placed your hands down her pyjamas next to her skin and rubbed her back and buttocks.  Again she told you to leave, which you did.  She remained in bed.

4Some time later, you went into the bedroom of the other child, Complainant 2.  She was asleep and you got into her bed and placed your hands down her pyjamas and underwear next to her skin and rubbed her buttocks and vaginal area.  She told you she had to go to the toilet and you left the room.

5She went to her mother's bedroom and woke her up.  She told her what you had done.  She was crying and very distressed.  Her mother went to Complainant 2's bedroom, but found you asleep or feigning sleep on the couch in the lounge room.  She yelled at you to leave the house, which you did, and the police having been called you were apprehended by them as you walked back to your friend’s house, where you were living at the time.

6Other family members were called to the complainants’ home, and in response to the commotion Complainant 1 came from her room and spoke to her mother, who asked her whether you had done anything inappropriate to her.  She told her what you had done.  The children underwent a medical examination that same day and the following day they made statements to the police. 

7You were interviewed and told that you may receive a summons, but before that occurred you left Victoria and remained interstate for many years.  The police did not know your whereabouts until about three years ago when the case was reopened. 

8The indecent touching of the two young girls occurred in their own beds where they should have been entitled to feel safe.  Their mother was asleep nearby and other people in the house were also asleep.  Clearly, each girl was shocked by your actions, as was their mother, who dealt with the matter swiftly by ejecting you from the house and calling the police. 

9Both the complainants and their mother have provided victim impact statements which describe the pain caused by what you did, pain which has persisted over many years.  The complainants’ mother felt betrayed by you, and the children feared you would return.  She felt guilty over not having been able to protect them from you, feeling that she had failed in this.  More recently, of course, she has had to take time off work to attend court many times, as have her daughters, for whom the logistics have been difficult, juggling their other responsibilities.

10These grown women have had to endure the sadness of watching the recordings of themselves as little girls describing to the police what happened, which caused them to relive the trauma.  Each has struggled with anxiety in their lives generally, but more particularly in the context of coming to court and having to be cross-examined.  All these matters add to the gravity of your offending.  Sexual abuse of children is regarded with particular abhorrence by the community and the need for general deterrence and strong denunciation by the court is of great importance.  This is particularly so where, as in this case, a serious breach of trust has occurred as you were a trusted friend of long standing.

11In your case the need for specific deterrence is reduced by the passage of time during which you have not offended at all, and the fact that you have no previous convictions for any type of sexual offence.  The fact that you have remained free of offending since 2001 is strongly in your favour, even though you are facing some pending charges in the Magistrates' Court to be dealt with in coming weeks.  Before 2001 your criminal history included various minor offences concerned with driving and what appear to be street-type offences which variously incurred fines or short prison terms.

12The most significant mitigating factor is your state of health, which must be said to be poor on account of your back injuries.  This trial had been listed to take place in October 2018 but was vacated owing to your need for hospital treatment for your back.  Throughout the trial before me it was evident that you were in considerable pain and your medical history, or at least my reading of it, confirms that you suffer from cervical spondylosis.  A report of the imaging of your spine performed by Monash Health in January this year includes the following references: as to your cervical spine, C5-6 disc bulge with mild cord indentation; as to your thoracic spine, multilevel disc desiccation, and as to your lumbar spine, mild disc bulge at 5 and L5-S1, with some disc protrusion at L3-4 as well.  The report's conclusion is that of, 'right far lateral disc protrusion, L3-4, which contracts and displaces the right L3 nerve which may contribute to a right L3 radiculopathy'.

13Mr Hands, who has appeared for you, has informed me that you have been unable to be prescribed effective painkilling medication while in custody for the past two weeks approximately.  Clearly, your experience of imprisonment will be more burdensome because of your back condition than for other prisoners who do not suffer in this way, and I take that into account.

14You have been assessed as suitable for a Correction Order and I have carefully considered the comments and recommendations of the officer who assessed you.  As I mentioned during the plea hearing, the options which are effectively open to me include a further period of time in custody followed by either a Community Correction Order or the possibility of parole should you be eligible.

15Without friends or family in Victoria but with the prospect of reconnecting with your son in Queensland, it may be preferable that you complete your sentence in Victoria without the intense nature of obligations under a Correction Order. 

16Taking all matters into account, I sentence you to 12 months' imprisonment for each charge.  Three months of the sentence for Charge 2 are to be served in cumulation upon the sentence for Charge 1, which is the base sentence. That results in a total effective sentence of 15 months.

I order that you serve nine months before being eligible for parole. 

I declare that you have spent 83 days in custody for these matters which is to be reckoned as having been already served and I shall cause that to be noted on the court record.

17The prosecution seeks an order for a forensic sample of saliva to be obtained.  You have consented to that and I should make that order.  I must advise you that the police do have the power to use reasonable force to obtain the sample but I trust that will not be necessary. 

18It is mandatory that you be entered on to the Sex Offender Registry, requiring you to provide your details to the police every year for 15 years after your release.  You will be given a form to sign in relation to that in a moment.

19Just while that is being done, are there any other matters, Mr Brown?

20MR BROWN:  No, Your Honour.

21HER HONOUR:  Mr Hands?

22MR HANDS:  No.  Just in terms of custody management issues, Your Honour.

23HER HONOUR:  Yes, I can note that on the gaol order.

24MR HANDS:  Yes, if you wouldn't mind.  Yes, thank you very much.

25HER HONOUR:  How do you want me to express that?  In terms of any need for medical attention in the form of medication, or what?

26MR HANDS:  He needs urgent medical and hospital attention.  That's not very well worded, but he needs to see specialists about his back, Your Honour, and he needs to be properly medicated.  I'll raise it with Corrections and if necessary I'll raise it with the Commissioner for Corrections because he's not being medicated and he's not being treated.

27HER HONOUR:  Thank you, Officer, you may take Mr Flynn now.  Thank you again for your assistance, Mr Brown, and to you too, Mr Hands.

28MR HANDS:  Thank you, Your Honour.

29MR BROWN:  If Your Honour pleases.

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