Director of Public Prosecutions v O'Flynn
[2013] VCC 770
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00061, CR-13-00062, CR-13-00063
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH O'FLYNN TERRANCE O'FLYNN MARCUS ROBERSON |
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JUDGE: | Her Honour Judge Gaynor | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 April 2013 | |
CASE MAY BE CITED AS: | DPP v O'Flynn | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 770 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J C J Mc Williams | |
| For the Accused | Mr T Gattuso for L. O'Flynn Mr U Ebsworth for T. O'Flynn Mr J Milson for M. Robertson |
HER HONOUR:
1 Leigh Anthony O'Flynn and Terence Paul O'Flynn, you have each pleaded guilty before me to one charge of causing serious injury recklessly. You, Marcus John Robertson, have pleaded guilty to one charge of causing injury recklessly.
2 The facts underlying your offending are as follows: On 14 October 2012, you, Leigh O'Flynn reported to police that a motorcycle belonging to your father had been stolen, nominating the victim in this matter as being responsible for the theft.
3 Later that day, the victim and his girlfriend were driving to a child centre in Watsonia, with their 21 month old daughter in the back. They were seen driving by the three of you, who had gone out looking for the victim in your car, Terence O'Flynn.
4 You all followed the victim's car to the child care centre, where you, Terence O’Flynn, got out of your own car and walked over to his, armed with a cricket bat.
5 As you approached the victim's girlfriend recognised you and repeatedly told you to "fuck off". At this time she was out of the car and the three of you stood round near the driver's window, near the victim who was inside the car, and yelled at him, demanding to know where the bike was.
6 You, Terence O'Flynn moved round to the car passenger side, where the window was wound down, and you, Roberton, held the victim's girlfriend, who was yelling at you all to leave.
7 You, Leigh O'Flynn then punched the victim to the head, through the open window, which knocked him towards the passenger's side of the car.
8 The victim's girlfriend tried to intervene, but was held back by you, Robertson, and then you, Leigh O'Flynn continued to punch the victim to the head several times, leaning in the car through the open window.
9 At this time you, Terence O'Flynn, raised the cricket bat and jabbed the handle through the window, striking the victim on the side of his head.
10 You, Leigh O'Flynn, then struck the victim several more times with your fist, at which time you, Robertson, continued to hold the victim's girlfriend, to stop her intervening.
11 The victim's daughter was in the car throughout this, crying and distressed and some of his blood sprayed on to her face and clothing during the attack.
12 Staff inside the child care centre, who had been filming the incident, came out and told you all police had been called, and the three of you then left.
13 The victim was taken to hospital, where it was found he had suffered a fracture to his jaw in two places and fractures to his eye socket and cheekbone, which was stabilised by a surgical insertion of metal plates and screws. Lacerations to his left eyebrow and right ear, were stitched. He had damaged teeth and bruising to his head, face and chest, and spent three days in hospital.
14 Police attended the scene, noting blood staining in the victim's car and the three of you were each arrested separately on 16 October 2012.
15 In your record of interview with police, Terence O'Flynn, you agreed you were in company with the other co-accused at the time, but had memory problems and could provide no more information.
16 You, Leigh O'Flynn, exercised your right to silence, and you, Marcus Robertson, admitted approaching the victim with the co-accused, to question him about the bike, but denied that anyone was assaulted.
17 I now turn to the personal side of the circumstances of each you, beginning with you, Leigh O'Flynn. You are 27 years old and have remained in custody since your arrest on October 16, 2012. You are the son of your co-accused, Terence O'Flynn. You are the second in a sibship of four, your parents separating when you were about 14. Your two brothers and sister are all in employment.
18 You grew up in Heidelberg, where it seems you were a good scholar and a particularly gifted athlete, specialling in gymnastics, and competing at a level which had you continued, could have led to you participation in the Olympic Games. At about 12 or 13, you gave this up, to your regret, after being teased by peers.
19 You left school at age 15 and took up a cabinet making apprenticeship, which you finished and for the next four years, worked for companies engaged in shop fitting.
20 You began using marijuana regularly from the age of 15, with a daily habit of about five grams, until your mid 20s, and described to psychologist, Carla Lechner, whose report, dated 21 March 2013, was tendered on the plea, patches of heavy use of amphetamine in those years, and for a six month period in 2012, a time where you used ice every day, but then reduced it to weekend use.
21 Your main problem, however, has been alcohol, which you began drinking at age 15 to 16, telling Ms Lechner that by the time you were 18, you were drinking huge amounts of it every day. You in fact lost your job in 2008, due to your drinking problems and entered a detoxification program at Moreland Hall. Between 2008 and 2011, you only worked part-time in the shop fitting industry, again entering Moreland Hall in late 2011, for an intensive detoxification program.
22 You then worked full-time for a shop fitting firm, Ozcam, which sub-contracted to a larger organisation, the Daycon Group, working full-time through 2012 and being offered full-time employment with Daycon in September. I received a reference from Patrick Larkin of the Daycon Group Proprietary Limited, dated 19 October 2012, describing you as a reliable, well-mannered and hard worker. Your counsel informed me, you believe you can obtain employment again with Daycon, once you are released from prison.
23 You have never sought bail in this matter.
24 You have a limited prior criminal history, appearing before the Heidelberg Magistrates' Court on charges of trafficking cannabis, dealing with property suspected of being the proceeds of crime, and using cannabis, for which you were fined and placed upon a Community Based Order, which you then breached by failure to comply with conditions, and in 2007, were fined for that breach, which apparently occurred because you placed work commitments ahead of your obligations to the Community Corrections Office.
25 You were diagnosed by Ms Lechner as presenting with symptoms of alcohol dependency and poly-substance abuse, both in remission, and mood disorder. Psychometric testing revealing a mild range of depression.
26 While in gaol, you detoxified, in particular, from alcohol use, for which you were prescribed valium, and have undertaken a number of courses in mood management problem solving and managing conflict.
27 For the past four months you have been working as a billet at the timber shop, where you have been classified as an essential worker, and designed and built a cubby house for the Royal Children's Hospital, Good Friday Appeal, which sold at auction for $2,500, representing a substantial profit for that prison program, which to them had previously raised $8,000 over five years.
28 You have a four year old son and remain on good terms with his mother, who attended in court to support you and who has continued to visit you, with your son, on a weekly basis while you have been in gaol.
29 You are close to your siblings and your father and were supported in court by your mother, who is a carer, specialising in disability services, as well as your sister and two brothers and your paternal grandfather, George O'Flynn.
30 The victim, his partner and daughter had apparently been ejected from their Ministry of Housing accommodation, for causing damage there and had been taken in by your sister. A valuable dirt bike, worth about $10,000, owned by your father, was stored in you sister's garage, and a few days before the offending, the victim and his family and the dirt bike all disappeared. Facebook enquiries by you, resulted in information from a friend that the victim had tried to sell the bike to him for about $2,000. Your rang the victim, who called you a "dog" and the theft was reported to the police.
31
You and your father became anxious that the victim would dispose of the bike before police got to him, and you went out in your father's car, taking
Mr Robertson with you, you were then residing, with him, he being a closer friend of the victim and it being hoped Mr Robertson could speak to him peaceably.
32 As was mentioned, you spotted the victim driving with his partner and child to the child care centre and you followed him. The victim apparently responded to initial demands as to where the bike was with derision and a comment that you would never see the bike again, you lost control and attacked him. The victim and his partner have apparently been subsequently charged with sending threatening text messages to your sister.
33 In her report, Ms Lechner described you as expressing remorse for your actions, admitting to be angry with the victim about abusing your sister's hospitality, the theft of the motorbike and his attitude when confronted by the theft. You told Ms Lechner that when the victim laughed, "I snapped and I hit him". You stated, "After I hit him the second time, I realised there was a kid in the back seat, I felt shit and left it at that". She said you presented as capable of reflecting on the impact that your behaviour had on yourself and others, had expressed regret for your offending and believed that your drinking over the years, though you were not drunk at the time, had impacted on your ability to inhibit impulses and make good judgments. She described your prognosis as reasonably favourable, if treatment supports are in place.
34 I have noted that you have in the past twice been treated at hospital for seizures you experienced when rapidly detoxing from alcohol, which indicates a serious problem of which I am satisfied you are aware.
35 You entered a plea of guilty at an early stage and I am satisfied, given your decision not to seek bail but to take advantage of your time in prison, both to detoxify from alcohol, undertake various courses and engage yourself in meaningful employment in the prison setting, you are remorseful, and desire to attend to your problems.
36 The attack was an extremely nasty one, the film of it taken by staff at the child centre being played in court, and you are seen punching through the open window, to the distress of staff inside. The attack was relatively brief, but did cause significant damage to the victim. I note that neither he nor his partner chose to make a victim impact statement in this matter.
37 Your general practitioner, Dr Nettleton, on whom you have attended since 2006, wrote a report which described a number of physical problems which you have been treated by him, as well as referral for psychological counselling. He stating, "A major concern over years has been his alcohol and cannabis abuse. This relates to his significant anxiety and depression and was the reason for referral". Dr Nettleton concluded that he had never, at any stage, been concerned about any violent streak in you, describing you as always being polite and pleasant in your dealings with him and following any treatment plan appropriately. He said he had never had any concerns about your honesty or integrity. He said you struggled using alcohol excessively and it was a credit to you that you continued to seek a solution from your problem.
38 Your mother, Michelle Campbell, in a written reference, referred to what she saw as a long standing drug and alcohol abuse problem. She has visited you weekly in prison, saying that while in gaol, you have been working and trying to do things to help yourself with your problems, rather than turning to alcohol. She continues to support you, also as I have said, does your son's mother, who also wrote of your actions in prison and expressed her desire to support you with your son in the future.
39 It was a prosecution submission that I should deal with you by way of a sentence of imprisonment, to be immediately served in excess of the period of time you have already spent in prison.
40 Whilst I have said the incident was an extremely nasty one, and a vigilante action, which must be condemned, I do note it took place in the context, and I accept this, of offending and provoking behaviour, by the victim against your father. I accept there was no initial decision to attack the victim, but a hope of obtaining information, leading to the retrieval of the bike by peaceful means, and that your actions in attacking him were impulsive and not undertaken with the intention of inflicting serious injury, which is reflected in the charge.
41 I am, as I have said, satisfied you have shown remorse, both by the plea you entered and your actions in remaining in gaol to attend to your problems, and which indicates also a good insight into, in particular, your alcohol abuse.
42 You have a good work history and a limited prior criminal history. In all the circumstances it is my view that I should deal with you by way of a three month sentence of imprisonment, following which you will be released on a Community Corrections Order. Such a disposition, in my view, condemns the violence of your actions, whilst at the same time, recognising the mitigatory factors to which I have referred. A Community Corrections Order for which you have been assessed and found suitable, will also allow you to deal, in particular, with your alcohol addiction and call for some recompense, by means of unpaid community work, which I intend to impose.
43 I now turn to you, Terence Paul O'Flynn. You are 51 years old and in receipt of a disability pension. You grew up in the Watsonia area and enjoyed a happy childhood, your mother dying in 1996, but you enjoying a close relationship with your father, with whom you were living at the time of this offending. You also enjoy a close relationship with your four children and a cordial relationship with your former wife.
44 You left school at 15 and were employed on a continuous basis until 2009 in various capacities, beginning with spray painting, followed by labouring jobs, a four year stint to 1984 as a cricket umpire and team manager (I interpolate here that you are a cricket fanatic and have played on and off over many years) and then as a storeman for various employers. This employment is very much to your credit, as you have encountered a great deal of physical difficulty along the way.
45 In 1990 you were the passenger in a car which collided with two trees and you received severe injuries, including a closed head injury, involving hospitalisation and a stint in rehabilitation for about six months, necessitating you being off work for about two years and during which time you undertook TAFE courses. You told psychiatrist, Dr Brendan Holwill, whose report dated 13 June 2011 was tendered on the plea, that on your return to work you experienced mood changes, irritability and noise intolerance, and continued to suffer chronic low back pain and pain in your shoulder blade area, nevertheless you continued to work.
46 In 2002, you were working as a storeman at Safeway, when you injured your back dragging pallets of frozen goods to a truck. You attended on your local practitioner, Dr Nettleton, and on 11 November 2002, after a visit there, were assaulted outside the surgery by a stranger, who asked you for a cigarette, which you refused. You were then attacked by three people, were kicked to the head, and lost consciousness. You suffered skull fractures and there was what Dr Holwill called, "a return to post-concussion syndrome symptoms". What that means is, as you receive a brain injury, which resulted in what he described as "variable mood, marked irritability, noise intolerance and poor concentration and forgetfulness".
47
You first attended on Dr Holwill in February 2003, at which time you were on sickness benefits, after the assault, but were keen to return to work.
Dr Holwill made an initial clinical diagnosis of "a mild to moderate post-concussion syndrome, mild to moderate depression, associated with the brain injury, chronic pain, aggravated of chronic spinal pain, and a resolved acute post-traumatic stress disorder". In other words, Dr Holwill found you had suffered an acquired brain injury as a result of the assault, as well as an aggravation of pre-existing physical injuries, causing chronic pain. He prescribe anti-depressants.
48 You continued to attend on Dr Holwill until July 2010, during which time you reported reduced concentration, sleeping difficulties, irritability, noise intolerance, decreased interest in activities you had previously enjoyed, social isolation and pain. Dr Holwill believed the assault in 2002 not only resulted in a primary brain injury, leading to mild to moderate depression, but aggravation of your pre-existing physical problems.
49 By 2005 you were still being assessed by Dr Holwill as capable of light part-time duties only, although he hoped for improvement with a passage of time, as you were keen to return to full-time employment. However in 2006, you suffered a motorbike accident, where you ruptured your kidney and spleen and suffered a knee dislocation. At p.8 of his report, Dr Holwill noted that you were, in 2010, still considerably incapacitated by chronic pain in the neck, lower back and knee, that your post-concussion brain syndrome symptoms had persisted, with little abatement, you experiencing daily headaches, blurred vision, poor concentration, lowered mood and marked irritability, and on review, complained of morbid thinking, "with a pervasive sense of hopelessness and helplessness", and some weight loss. He stated, "I assessed him as being a poor rehabilitation prospect, suffering from chronic spinal and head pain, chronic post-concussion syndrome, and mild depression". He agrees you were totally incapacitated and you were then placed on a disability pension, in 2010.
50 You separated from your wife that year, after 24 years of marriage, and have since lived with your father. You counsel told me, over the years you had had a problem with alcohol, although this was not confined to drinking fairly heavily, it must be said, each Saturday, while watching your sons play cricket.
51 Like your son, you declined to make an application for bail, believing you deserved a period in gaol for your offending. You have a prior criminal history, which ended in 1999, involving dishonesty offences in the 1970s and 80s, but not containing any prior convictions for violence, and largely reflecting your difficulties with alcohol, you having been last deal with in a court in June 1999, for being drunk in a public place.
52 While in gaol, you have been made head billet, a position of some responsibility, awarded only to prisoners who demonstrate particularly good behaviour, of your unit in mainstream, and have undertaken an anger management course. Physically, gaol has been very difficult for you because of your chronic pain injuries. You suffer continual sciatica. The Panadeine Forte medication you were previously prescribed, could not continue in gaol, because there was opiate content, and you have instead been prescribed Tramadol, which is a significant pain analgesic.
53 I accept that you continue to suffer depression, and that this will be a life-long affliction, arising as it does, from your acquired brain injury. I accept that service of a term of imprisonment has been and would be a good deal more difficult for you than other prisoners.
54 In addition, the prosecution has conceded the principles of Verdins have application to your case. You purchased the trail bike. You have a lifelong passion for cars and motorbikes, following a superannuation payout, effected once you were diagnosed as being totally incapacitated for work. As I said, it cost about $10,000 and you house it in your daughter's garage.
55 Your participation in this offending arose from your anxiety that the victim would dispose of the bike before police could effectively intervene, but t hat you had no intention for matters to proceed as they did. The cricket bat was an item that you carried in your car, because you were keen on cricket and played, but you admitted, through your counsel, that you took it with you when you got out of the car to confront the victim on that occasion, in case something happened. It is clear that the main assault was perpetrated by your son, Leigh, but you did participate to some extent by jabbing at the victim once with the handle of the cricket bat.
56 I received a reference from your financial planner, who has known you for many years and who described you as a patient man, a good person, who has a loving family. Your daughter also described you as being upset and ashamed of your actions. She pledged her support to you and hopes that you will come to live with her on your release from prison.
57
It was the opinion of psychologist, Jeffrey Cummins, whose report dated
4 March 2013 was tendered on the plea, that at the time of the offending, you were suffering from symptoms of anxiety and depression, as part of a chronic adjustment disorder, arising from your brain injury, which would have compromised your perception, judgment, and ability to make rational decisions, hence the Verdins application. He believed you were embarrassed about your offending, that your prospects for long-term rehabilitation were favourable and that the offending was situationally motivated. He did not asses you as having an anger management problem.
58
Again I repeat the offending in which you did participate was extremely nasty and violent, although I accept it was out of character, and I also accept
Mr Cummins view that it was situationally motivated and that your prospects of rehabilitation are good, given the support you continue to enjoy, the remorse I accept you have demonstrated and feel in relation to your offending, your positive progress in prison, and your early plea of guilty.
59 In my view, the imposition of a three month sentence, upon which you will be released on a Community Corrections Order, for which you have also been found suitable, and which will be of lesser duration than that imposed in relation to you son, appropriately answers a need for this court, both to condemn the severity of your actions, as well as appropriately take into account the mitigatory factors I have outlined. In my view, issues of specific deterrence do not have application in your case.
60 I now turn to you, Marcus Robertson. You are 29 years old, one of two children born to your parents, who separated when you were a baby, and you grew up in the Macleod area, leaving school during a repeat Year 9, in order to work. The next day you started work with your step-father, completing a pre-apprenticeship in carpentry at NMIT, the plan being that you begin an apprenticeship with your step-father, but he could not then afford an employee.
61 You then worked as a labourer for a variety of employers, for stints averaging about six months, then at age 24, worked for three years with John Perrin Racking, a pallet racking business, forming a close relationship with your employer, John Perrin. In a reference, dated 1 November 2012, Mr Perrin described you as a talented young man, who was an asset to his business, during his employ, trained new staff, managed projects and so impressed him that he gave you a company car. He stated, "Mark has a spot with my company any time he chooses". Mr Perrin said he found it difficult to comprehend that you have been charged with these actions.
62 About four years ago, you formed a relationship with your fiancée, and left your employment with Mr Perrin to take up work with your cousin, who had a company, working on the South Morang rail extension, in order to earn more money to set up house with your fiancée. However at Christmas 2011, you fell and broke your heel, which is a very serious injury, for which you were hospitalised, screws, plates and some sort of filler inserted in your heel, and you were unable to continue that employment because of its physical demands.
63 The future prognosis is that you will never be able to return to this type of work again, the injury having affected your gait, and resulting in a loss of movement. After several weeks in hospital, you spent six or seven months in a wheelchair and on crutches, and your mood declined.
64 You began smoking marijuana when you were 15, increasing your consumption until you were 23, met your fiancée and stopped using. To that time you had also regularly used amphetamine and ecstasy. However you then turned to alcohol to replace the drugs and your use of it was extremely heavy, at one stage, drinking a litre of Wild Turkey in a sitting, on a regular basis.
65 What appears to have been a lingering depression from years before, intensified significantly following your injury and then worsened in August 2012, when you mother, to whom you were extremely devoted, died most unexpectedly of an aneurism of the aorta, while visiting your brother in Tasmania. This occurred only two months before the offending.
66 Following your arrest, you were kept in custody on remand for two months, which apparently had a most salutary effect, as this was your first experience of gaol. You were released on bail, containing a number of restrictive conditions, on 7 December 2012. You went to live with your fiancée at her father's home in Kinglake, a condition of your bail being that you not return to your mother's house, a condition your first resisted, but which you now realise as being beneficial, as it removed you from what were described to me as a number of undesirable acquaintances from the Macleod area.
67
You have drastically reduced your drinking to four or five beers on a weekend night. In that time you have not sought further employment, anxious that it could be interrupted by a gaol sentence, but have attended regularly upon psychologist, Doug Macleod, whose report dated 9 March 2013 was tendered on the plea. He said you presented with symptoms of a moderate depression, chronic pain from your heel injury, and with limited use of your left foot.
Mr Macleod referred to the death of your mother and then of your grandmother, whilst you were on remand, stating that you were still grieving these deaths "and at the time of his arrest, he believes you were not acting as he normally would".
68 You acknowledged to Mr Macleod you had been using alcohol to deal with your grief. He said you presented as pleasant and co-operative and you had been making good use of your session with him to develop strategies to manage your mood and grief. Mr Macleod said he was confident your mental state would continue to improve "and that the likelihood of his re-offending is very low".
69 I received a number of written references from friends and family in support of you, describing your remorse at your offending, a man with a good work ethic and the difficulties you endured in the months leading up to your eventual placement in prison. You fiancée's father, Anthony Morrell, said he had never known you to be angry or violent and found your actions in this offending to be out of character. He said he had been impressed by your attitude, whilst living in his home on bail, towards your ongoing counselling, noticed a positive change in your behaviour and character, and said you expressed your time in remand with him, expressing remorse and regret at the offending.
70 Another friend, Michael King, a carpenter who you met through Mr Morrell, has had continued contact with you, while you were living in Kinglake, and he also you expressed remorse to him for your offending and asked to undertake unpaid work with him, as part of your rehabilitation for your heel injury. He believed you were clearly focused on returning to work and building a stable lifestyle.
71 Importantly, you and your fiancée are expecting your first child in about five months time.
72 You too have a prior criminal history, primarily for driving offences, last appearing before a court in November 2011 for failing to comply with a good behaviour bond, for which you received a charge of theft in 2010 and which does not contain any prior convictions for violence.
73
Psychological testing by psychologist, Carla Lechner, whose report dated
23 March 2013, which was tendered on the plea, revealed what she described as extreme results for testing for depression. You expressed regret and shame for your actions to her, particularly given that a young child was in the car, you telling her you did not know she was there until told by police, and saying you would not have gone near the car if you had known of her presence.
74 At the time of this offending, you were living with Mr Leigh O'Flynn, with whom you have been friends for many years and were brought along, as you had known the victim for about ten years and it was hoped you could lead peaceful negotiations, in locating the dirt bike.
75 Again your actions, although serious, were out of character, but I accept that you played a minor role in this offending, that you are remorseful for it, and have good prospects of rehabilitation.
76 In my view, you require ongoing assistance with your problems of alcohol, grief and depression, and a Community Corrections Order for which you have also been assessed and found suitable, would be the most appropriate way to deal with you, both as a means of marking the seriousness of your offending, as well as taking into account and attending to the mitigating matters raised on your behalf.
77 So, each of you is going to get a Community Corrections Order. Mr Leigh O'Flynn, can you stand up please?
78 I can only place you on a Community Corrections Order if you consent to be placed on one. There are fundamental conditions which apply to the Order. They are that you must report to the Office of Corrections within two working days of receiving this Order, that is by Wednesday. I will be sentencing you to three months imprisonment, but declare that that has already been served by way of pre-sentence detention.
79 The second condition is that, whilst on the Order, which will last for two years and six months, you must not commit any offence, either inside or outside Victoria. You must report to and receive visits from the Community Corrections Office. You must report any change of address or employment to the Office of Corrections within 48 hours of that change. You may not leave Victoria without the permission of the Community Corrections Office, and you must obey all lawful directions of the Community Corrections Centre. You are also to perform 200 hours of unpaid community work.
80 I note in the assessment that when you were previously on a Community Corrections Order, you said you did not like unpaid community work, because it was boring. That is unfortunately too bad, Mr O'Flynn, that is the way it is. Boring or not, you have to do 200 hours of unpaid community work. Do you understand? I will not be at all happy if I find that you have not done this work and that you have been brought back in front of me. You know that if you are brought back in front of me, either for offending or for not keeping up with the conditions, I will re-sentence you on this original offending and I am sure, despite you invaluable place in the timberyard, you are not going to want to go back there. So unless you want to spend years and years making cubby houses for the Royal Children's Hospital Good Friday Appeal, you will undertake that unpaid community work. Am I clear?
81 PRISONER LEIGH O'FLYNN: Yes.
82 HER HONOUR: Thank you Mr O'Flynn. All right, now I still have not finished, all right? You will have supervision. I will order judicial monitoring in the form of three-monthly reports. So like big brother, I will know what is happening with you, all right? You are to undergo assessment and treatment for alcohol and drug addiction. You are to undergo assessment and treatment for psychological matters, all right? Thank you. Do you agree to be placed on this order?
83 PRISONER LEIGH O'FLYNN: Yes.
84 HER HONOUR: Excellent. Have a seat. Thank you. Mr O'Flynn, can you stand up please, Mr Terence O'Flynn? All right. You too are sentenced to three months imprisonment, which I direct has already been served by way of pre-sentence detention. You will be placed on a Community Corrections Order for a period of 18 months. I am not going to order any unpaid community work. I do not think physically you could manage it. However, you heard the fundamental conditions that I described to your son. They apply in your case.
85 The special conditions in your case, it will be that you will be assessed and treated for mental health problems, all right? It sounds to me like you need some help with this, how to manage it. You have got these - from you extraordinarily adventurous life, Mr O'Flynn, and I am surprised not to hear that someone hit you over the head with a cricket bat while you were playing all those years, along the way, but in any event, you have got an acquired brain injury, as you know. As a result of that, you suffer depression, all right? And you need some assistance with that. I am going to order supervision as well and I am also going to order judicial monitoring, by way of three-monthly reports, all right? You can sit down, thank you very much.
86 Mr Robertson, could you stand up please? You will be placed on a Community Corrections Order, if you agree to being placed on it, for a period of 12 months, all right? I am going to order that you undertake 100 hours of unpaid community work, as part of the special conditions, in addition to the core conditions, which you also heard me explain to Mr Leigh O'Flynn and which have application to you. I am going to order that you receive assessment and treatment for alcohol dependency. I am going to order that you are assessed and receive treatment for mental health problems, all right? I am also going to order judicial monitoring, by way of three-monthly reports. Have a seat, thank you.
87 Pursuant to s.6AAA, I declare that had you not pleaded guilty, Mr Leigh O'Flynn, I would have sentenced you to a term of imprisonment of 18 months and order that you serve a nine month minimum. Pursuant to s.6AAA, I declare that had you not pleaded guilty, Mr Terence O'Flynn, I would have sentenced you to a term of imprisonment of five months, and had you not pleaded guilty, Mr Robertson, I would have place you on a suspended sentence of about eight months duration, which would have been suspended for a period of 18 months. All right? Thank you. We will just get the materials printed out.
88 MS EBSWORTH: As Your Honour pleases.
89 MR GATTUSO: As Your Honour pleases.
90 HER HONOUR: Is there anything else I need to attend to, Madam Prosecutor? I have got Disposal - Retention - - -
91 PROSECUTOR: There is Ancillary Orders, Your Honour.
92 HIS HONOUR: Yes, now I understand that there was some resistance to the s.464ZF application. Yes, Mr Gattuso?
93 MR GATTUSO: Your Honour, I was just going to say, I don't think Mr O'Flynn had submissions made on that. All I was going to say is that we've now got the benefit of the report which assesses him as low risk of further offending.
94 HER HONOUR: Yes.
95 MR GATTUSO: He is still a youthful person. DNA or forensic evidence wouldn't have been of any assistance in this case - - -
96 HER HONOUR: No.
97 MR GATTUSO: - - - as he was known and arrested through his knowledge of the complainant.
98 HER HONOUR: All right. Yes. Look I regard it as a fairly serious order to make. Unless you have got anything particularly compelling that you want to say to me, Madam Prosecutor?
99 PROSECUTOR: I will just point out that it is serious offending, Your Honour.
100 HER HONOUR: Yes, all right. No, I am not prepared to grant it, and in the case of Mr Robertson, was there a similar application?
101 MR MILSON: Very similar, Your Honour.
102 HER HONOUR: Very similar. Almost identical, I would imagine, is that right?
103 MR MILSON: Very, very - almost, yes.
104 HER HONOUR: Almost. Is there anything sort of original and interesting that you want to add to what Mr Gattuso has to say?
105 MR MILSON: There is not, no.
106 HER HONOUR: Nothing?
107 MR MILSON: No.
108 HER HONOUR: Then it is totally identical. Have a seat.
109 MR MILSON: Thank you, Your Honour.
110 HER HONOUR: I am not going to grant the application in Mr Robertson's case either. Now, with Mr Terence O'Flynn, was there - - -
111 MS EBSWORTH: As I understand it, Mr Gwynn with counsel made very brief submissions to Your Honour at the conclusion of the plea hearing on Thursday, resisting the application on the basis that Mr - - -
112 HER HONOUR: Yes. No, I am not going to grant - - -
113 MS EBSWORTH: The lapse of time since his last offending an so on.
114 HER HONOUR: I am not going to grant the Order in any of it. I mean, as I said, it is serious and nasty offending, but it is very situational and I understand there were - I make the point again - what is concerning of course is that it was essentially vigilante - well it ultimately turned out to be a vigilante action by the accused in this matter, although I accept that the aim was primarily to find out where the dirt bike was, but that things then escalated. I make the point to each of you gentlemen, you can remain seated while I make this point. If any of you do not take this order seriously and return to me on future offending, you can expect to be dealt with severely, all right? You have been given an opportunity here. I am happy to give people opportunities, but I am not very - particularly unhappy if they do not take advantage of it. All right? Thank you very much.
115 MR GATTUSO: Perhaps now the other thing Your Honour might have been about to mention it, but there probably needs to be a formal recording of pre-sentence detention on the record.
116 HER HONOUR: All right.
117 MR GATTUSO: Even though they've been sentenced to three month, they've, I think all served - well two of them have served beyond that.
118 HER HONOUR: Could I have the days?
119 MR GATTUSO: I think today is a hundred and eighty-second day for Mr Leigh O'Flynn.
120 HER HONOUR: I declare that Mr Leigh O'Flynn has served 182 days of pre-sentence detention.
121 MS EBSWORTH: My client is Mr Terence O'Flynn.
122 HER HONOUR: And that Mr Terence O'Flynn has also served 182 days of pre-sentence detention. What about your client? How many days did he serve?
123 MR MILSON: 53, Your Honour.
124 HER HONOUR: And that Mr Robertson served 53 days of pre-sentence detention. Thank you. Right. All right, gentlemen, we will each get you to sign this. Thank you. You have got the Disposal Orders? These can be returned to you, thank you Madam Prosecutor.
125 PROSECUTOR: Thank you, Your Honour.
126
HER HONOUR: All right. Thank you. All right, counsel are excused and
Mr Robertson can come out of the dock and I take it that the two O'Flynns have to go downstairs?
127 MR GATTUSO: Yes, Your Honour.
128 HER HONOUR: All right then. Thank you very much. I will just remain on the Bench briefly. Thank you.
129 MR MILSON: As Your Honour pleases.
130 MR GATTUSO: As Your Honour pleases.
131 MS EBSWORTH: As Your Honour pleases.
132 HER HONOUR: Thank you.
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