R v Flanagan

[2021] NSWDC 183

District Court

New South Wales

Medium Neutral Citation:

R v Flanagan [2021] NSWDC 183

Hearing dates:

3-6, 9-11 November 2020, 5 February 2021, 8 February 2021

Date of orders:

8 February 2021

Decision date:

08 February 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 6 years 9 months with a non-parole period of 4 years 6 months.

Catchwords:

Crime – Sentence – Aggravated break, enter and commit serious indictable offence, namely larceny

Legislation Cited:

Criminal Procedure Act 1986

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R (2013) 249 CLR 571

Category:

Sentence

Parties:

NSW DPP – Crown
Phillip Roy Andrew Flanagan - Offender

Representation:

Ms J Dewhurst for Crown
Mr G Hoare for Offender

File Number(s):

2019/144608

sentence

1. The offender, Mr Flanagan, is for sentence on three offences today, having been found guilty by juries in each of two separate trials. On 6 November 2020, a jury found him guilty of two offences of aggravated break, enter and commit serious indictable offence. Each of those offences carries a maximum penalty of 20 years' imprisonment and a standard non parole period of five years. Immediately after that trial and also in November 2020, a different jury found the offender guilty of an offence of break, enter and commit serious indictable offence, namely larceny. That offence carries a maximum of 14 years' imprisonment.

2. Of course, the maximum penalties and, where applicable, standard non parole period are important legislative guideposts in the sentencing exercise to which I have had regard.

3. In addition to these matters, there are additional offences on a certificate under s 166 of the Criminal Procedure Act 1986, the first being an offence of possessing 0.4 grams of methamphetamine to which the offender pleaded guilty in the Local Court and on which he is entitled to a discount of 25% on account of the utilitarian value of that plea. In addition, the s 166 certificate contains three offences under s 188 of the Crimes Act of disposing of stolen property. In relation to those offences, the offender pleaded guilty at the end of his first trial and it is agreed that he is entitled to a discount of 5%.

FACTS

4. The facts of the matters for which he is to be sentenced are set out in a document prepared by the Crown entitled "Crown proposed facts to be found on sentence", which I note was not disputed by counsel for the offender.

5. The first trial was concerned with a storage location known as Storage King at Blacktown which is located at Penny Place, Arndell Park. The Storage King Blacktown is a self-storage facility that consists of various buildings containing individual storage units. The main building is a large industrial sized building that contains 45 storage units. There is a fence around the entire perimeter of the property and there are three entry gates that are all secured at the time that the premises are closed. Two of the gates are electronic and are opened by entering a PIN. The third gate is manually padlocked. Customers hire individual storage units. Each unit is locked and the customer is provided with a key to the storage unit and a personalised entry PIN to open the electronic entry gates and to open the door to the main building. There are also CCTV cameras that operate within the facility.

6. Count 1 in the first trial involved the following facts. At about 5.30pm on Thursday 28 March 2019, the Storage King facility was left locked and secured. At about 11.30pm that night, four people gained entry to the facility by opening the door to the main building and going inside. Entry was gained by using the personalised entry PIN for storage unit W019, which was rented at that time by Mr Jackson. This PIN was used to open the entry gate and the door to the main building. The four people that gained entry were the offender Mr Flanagan, a Ms Rhonda Howlett, a young man named Dylan Stockdale and another male whose identity is not known.

7. The offender, once inside, walked directly to storage unit W019. He was at that time wearing a black balaclava and red coloured gloves. During the offence, the intruders were in possession of a crowbar and hammer. They cut the padlock and opened roller doors of the following storage units and the following property was stolen.

8. From unit W019, property to the value of about $5,500 which included four sets of keys to company trucks, a 6 foot bow with a quiver of arrows as well as two other bows, ten drill kits, a Ryobi jigsaw, four or five drill bit sets, a nail gun, a camping fridge, a fishing lantern, a small axe, a hunting knife and a small safe. From unit W020, there was stolen 71 Krix brand speakers in their original boxes as well as four Krix brand subwoofer speakers, three Premier Clean industrial vacuum hoses and three Premier Clean vacuum hybrid units, all of that property being to the value of about $15,076. From unit W022, there was stolen three Chima brand 12,000 pound four wheel drive winches to the total value of about $1,326. From a further three units which were broken into, those being W021, W023 and W024, there was actually no property stolen. The total value of property stolen from the three units to which I have referred was about $21,912.

9. The intruders, including this offender, used trolleys which were found inside the facility to transport the various items of property from the storage units, each of them making multiple trips from the storage units to outside areas. All four intruders left Storage King at about just after 3am on the following morning, 29 March 2019. The activities inside the facility that I have just described were, in part, captured by CCTV footage. At about 7am on the morning of 29 March 2019, the manager of Storage King discovered that entry had been gained and he reported the matter to police.

10. On 1 April 2019, this offender, Mr Flanagan, sold for $130 one of the Krix brand speakers that had been stolen from storage unit W020. He did that at a place known as Cash Away. That offence of disposing of stolen property is one of the matters on the s 166 certificate being sequence number 24. Also on 1 April, this offender sold to Mega Cash a Chima brand 12,000 pound four wheel drive winch for an amount of $70, that being one of the items stolen from unit W022. That offence of disposing of stolen property is another matter on the s 166 certificate and it is in fact sequence number 8.

11. Seven days later on 8 April 2019, this offender sold another of the Chima brand 12,000 pound winches to a place known as Cash Converters for an amount of $45, that being one of the winches which were stolen from unit W022. That offence of disposing of stolen property is also on a s 166 certificate and is the subject of the sequence 9 charge.

12. On 8 April 2019, police executed a search warrant at a unit in Canberra Street, Oxley Park, which was the residence of a Rebecca Burnham and James Rhodes, who are persons who were known to the offender. Some of the property stolen from Storage King Blacktown on the night of 28 to 29 March 2019 was located in the main bedroom, garage and shed of those premises.

13. Those are the facts relating to count 1 in the first trial. In relation to count 2 on that trial, the facts are as follows. At about 4pm on 27 April 2019, the Storage King Blacktown facility to which I have referred already, was left locked and secured. At 1.46am on Sunday 28 April 2019, the offender and two other people gained entry to that facility. They did so by cutting the padlock to the manual entry gate and then opening a door and entering the main building. At the time, the offender was wearing black gloves and a black balaclava and carrying a crowbar.    The offender used the crowbar to force open the roller door to storage unit W019 to which I have earlier referred in these remarks, which was at that time rented by Mr Jackson.

14. From inside that unit, the offender stole a black backpack which contained wall plugs, assorted tools and art hanging equipment to the value of about $200. This bag was later located in the offender's vehicle when he was arrested on 8 May 2019. At about 1.48am on 28 April 2019, the manager of Storage King Blacktown received an alarm activation. When he checked his CCTV connection, he saw that three people were on the premises and breaking into storage units. Police were contacted and they attended Storage King at about 2.07am. Again, aspects of this offence were captured on CCTV footage.

15. As I have said, the third offence for which the offender is to be sentenced was the subject of a second trial and in that matter there was just the single count of which the jury found the offender guilty. The facts are as follows. The victim was a Mr David Moon who resided in a single storey three bedroom house at Macarthur Drive, St Clair. On each side of the house was a garage. Mr Moon owned a black four wheel drive vehicle with a registration number which reflected his surname. In or around 2014, he met a lady by the name of Deann Hallani and, shortly after, he was in a casual relationship with her. When Mr Moon and Ms Hallani were together, Mr Moon worked shifts at Moorebank that would start at 10pm and finish at 6am. Ms Hallani had attended at Mr Moon's St Clair home. The relationship ceased around 18 months prior to the relevant offence.

16. On 3 May 2019, the offender sent the following messages to Ms Hallani, who he obviously knew, asking for her to provide him with Mr Moon's address. The messages were as follows: "Hey, I need that address so we can do it tonight, okay?" "Do you have that address for us? We really need to make an earn tonight". "Hey, by any chance, did you get that address?" "Text it to me". And finally, "Can I have that address please?"

17. In the early hours of the next day, Saturday 4 May 2019, the offender sent the following messages to Ms Hallani, again asking for Mr Moon's address: "Sorry, I've forgotten to get that address off you. Can you text it to me please?" And, "So are you going to give me the address? I'm not going to rip you off okay. You tell me what you want and we give it to you".

18. Ms Hallani provided the offender with Mr Moon's address and the offender thanked her and told her he would message her when "it's done". She also told the offender that Mr Moon would be home about 5am and that there were items of value in the garage. The offender then attended at the vicinity of Mr Moon's house. At about 5.37am on 4 May 2019, the offender sent a message to Ms Hallani which said, "It wasn't done tonight. Have to wait till Monday", as it was too risky due to a party. Late in the evening of 6 May 2019, the offender again attended the vicinity of Mr Moon's house. The offender and Ms Hallani exchanged messages in relation to Mr Moon's car and whether or not there were cameras.

19. On Tuesday 7 May 2019, Mr Moon left his house at about 9.15pm for work. He locked and secured his house when he left. At about 9.25pm that evening, the offender attended Mr Moon's house. He forced open the rear door and entered the house. The offender then ransacked the house. Cupboards and the oven were opened in the kitchen; a TV cabinet was moved in the lounge room; clothes were removed from the main bedroom; the wardrobe was disturbed in the second bedroom, and a chest of drawers was opened in the third bedroom. The offender also left faeces in the toilet.

20. From that property, the offender stole a large number of items to a value of about seven and a half thousand dollars which belonged to Mr Moon. That property included a large variety of personal items including folding chairs; socket sets; two Ryobi cordless drills; an electric planer; a framed Peter Brock picture; a Holden backpack; a plastic tub containing a camera, screwdriver set and various other items; a blue Esky containing socket set, a mini compressor and a number of other items; a PlayStation console; a new red and black Holden cap with original tags attached; two Holden Torana racing car models; five framed pictures of Mr Moon's daughters, as well as two framed Australian 50 cent piece commemorative sets in the names of Mr Moon's daughters; a black bucket containing a nail gun, an angle grinder socket set and another item; a variety of tools; a box containing a Holden bar stool and Holden round table; a remote control car; a white bucket containing a router, an angle grinder, a cordless drill and another cordless drill; another box containing Peter Brock memorabilia, and a variety of other items, as I have said, to a total value of about $7,500, including also a Sony camera which was valued at about $1,500.

21. In addition, the offender stole the following property which belonged to Mr Moon's partner, Elizabeth Smith, to the total value of about $4,250: a motorcycle helmet; a wooden keepsake box containing personal items such as jewellery; an acoustic guitar; a Canon digital camera with three separate lenses; a wooden record player; a Toshiba laptop computer, and an Apple iPad.

22. At about 6.45am on 8 May 2019, Mr Moon returned home to discover that the side door to his house had been forced open and that various property had been stolen. He contacted police. On 8 May, that is, the same day, the offender was stopped by police outside on Canberra Street in Oxley Park as he was approaching his Holden Statesman vehicle which was parked on the street. At the time, he was wearing a Holden cap with the original tag still attached. Of course, that was one of the items that was stolen from Mr Moon's house the previous night as I have already described. All of the items belonging to Mr Moon and some of the items belonging to Ms Smith, were located in Mr Flanagan's Holden sedan which was searched by police. Those items were seized and were returned to their owners.

23. After the offender was located in Canberra Street with the various items of property found in his car, he was placed under arrest and was searched. Inside a satchel bag in his possession police found a small resealable bag which contained .4 of a gram of methylamphetamine. That is the sequence 7 charge that is also on the s 166 certificate. Those are the facts of the various offences that are before the Court.

OBJECTIVE SERIOUSNESS

24. Of course, in determining the appropriate sentence, I need to assess the objective seriousness of them. The objective seriousness of offences involving breaking, entering and stealing, especially when in company with others, which is the case in the first two offences that I have referred to, is marked firstly by the substantial maximum penalties which I have earlier set out. It is also marked of course, in the case of the aggravated offences, by the standard non parole periods that are specified.

25. The seriousness of these types of offences has been emphasised by the Courts for many years, in part, because of the prevalence of such offences as well as the sense of invasion that is usually or often associated with such offences. As is well known, victims lose valuable property, often items of sentimental value. The prevalence of such offences has led to consequences such as increasing insurance costs and the prevalence of things like burglar alarms, locked doors and bars on windows. It is for these reasons, and others, that the Courts have emphasised the importance of significant punishments in cases of this kind.

26. It was submitted by the Crown and accepted by the offender that the offence in count 1 of the first trial sits just above the mid-range of objective seriousness due to the following matters: firstly, the level of planning involved; secondly that the offence occurred over a period of more than three hours; thirdly, the significant amount of property involved, to a total of almost $22,000; and fourthly, that the offence involved breaking into six storage units in the process of which there was damage done to padlocks securing the storage units. I accept the Crown's characterisation of the offence as being just above the mid range.

27. In relation to the second count involving the Storage King premises, I accept the Crown submission that this falls just below the mid-range of objective seriousness. As the Crown submitted, that characterisation is justified by the following matters: firstly, there was a degree of planning involved in that the offender returned to the same storage facility and the same storage unit, but of course in comparison with the first offence, this offence was of short duration and involved a limited amount of property. I note that counsel for the offender accepted the Crown's characterisation of the objective seriousness as being just below the mid-range.

28. The Crown has submitted, and the offender's counsel accepted, that the remaining offence involving Mr Moon's premises falls above the mid-range of objective seriousness. As the Crown submitted, this assessment is justified by the following matters: firstly, that the offence involved planning, including attending the vicinity on at least two prior occasions; secondly, that the offence involved the victim's home; thirdly, that the home was ransacked; fourthly, that a significant amount of property, including items of sentimental value, were taken, although most of the property I note was recovered; fifthly, given the quantity of property stolen and the ransacking of the home, the offence must have occurred over a considerable period of time.

29. As the Crown also submitted, while there is a suspicion that this offence was committed with others, the evidence is not sufficient to establish this beyond reasonable doubt and it is therefore not a matter to which I have had regard.

30. While not relevant to objective seriousness, I must, in sentencing the offender, take into account as an aggravating factor that he has previous convictions for similar offences and was on parole at the time of these offences. His criminal history is obviously such that it disentitles him to leniency which might otherwise have been extended. His prior record is also a matter which brings into greater focus the need for both personal and general deterrence, denunciation and community protection. I have also taken into account in determining the sentences, that each of the offences were committed apparently for financial gain, which is not an element of any of the offences. I do accept, however, that financial gain is very frequently an inherent motivation behind these kinds of offences and so, in my view, the motivation of financial gain is not a matter that should operate to increase the sentences to any substantial degree.

SUBJECTIVE MATTERS

31. Turning then to subjective matters. The offender's subjective case has been placed before the Court essentially by means of the psychologist report of Raymond Hudd, and the offender's evidence on oath. The history given by the offender to the psychologist and in his evidence involves a disturbing background as a child in which the offender claims to have been regularly beaten and subjected to other serious physical and emotional abuse, as well as sexual abuse by his father from about seven years to about 13 years of age. The offender says that he was treated differently from his siblings and was even told by his father that he was not his son. He reported also that he was sexually abused while in juvenile custody at Cobham and Mount Penang detention centres while an adolescent, and that he resorted to a wide range of drug use to numb his feelings of worthlessness and the trauma of his past. He also reports a history of several suicide attempts from a young age.

32. The psychologist concluded, after a range of psychological testing, that the offender has symptoms consistent with chronic complex PTSD and borderline personality disorder. The psychologist is of the view that the offender's traumatic background has resulted in these disorders and have directly and adversely affected the offender's judgments and contributed to his offending behaviours.

31. While I have had regard to this evidence, I am conscious also of the fact that the offender was able, from about 1997 when he was about 26 years of age, until about 2007 when he was about 36 years of age, to stay out of trouble and apparently maintain a stable relationship. His is not a case, therefore, where he is entirely captive to his psychological difficulties and traumatic background. Clearly, he is capable of applying himself to a law abiding and worthwhile life when he is determined to. I am not satisfied that there is any direct link between the offences before the Court and his psychological condition and traumatic background. However, I am satisfied that the offender's background has contributed to his poor decision making over a large number of years and has rendered him, in the past, less able to resist making poor decisions such as engaging in drug taking and criminal behaviour.

32. In accordance therefore with the principles discussed in Bugmy v R (2013) 249 CLR 571, I consider that his moral culpability for his offending is reduced, although to a limited degree only. These were, after all, not impulsive offences but offences that involved forethought and planning. While I do take into account the offender's traumatic background and compromised mental state, it is also necessary that I balance this consideration against the importance of denunciation, deterrence and protection of the community, given especially the offender's offending history in recent years, despite being sentenced to numerous terms of imprisonment.

33. While this is certainly not the offender's first experience of imprisonment, I accept that his time in custody will, to some degree, be more difficult for him by reason of the psychological conditions referred to by Mr Hudd. I have also taken this aspect into account in determining the sentence.

34. There is no evidence of remorse in this case and the offender continues to deny responsibility for his offences. On the other hand, it is positive that, while in custody this time, the offender has participated in some work-related courses and engaged in work in the gaol and has sought out psychological help. It is also positive that he says that this is the first time in 13 years that he has really wanted to be out of gaol and realises that it is "not a life", and that on his release, he wants to settle down with his girlfriend, Cindy, and try to find a job. Having regard to these matters but also to his previous record, including the frequency of his reoffending and his continued denial of these offences, I consider his prospects of rehabilitation to be, at best, guarded and uncertain.

PARITY   

37. In determining the appropriate sentence, I have had regard to the principle of parity and the sentences imposed on co offenders so as to avoid a sentence in this case which might create a justifiable sense of grievance when compared with that imposed on others. That said, parity is of limited weight in this matter because, firstly, it is only on count 1 of the first trial, that being the first Storage King break in, that any co offenders have been sentenced and, secondly, due to the differences in the circumstances relating to those co offenders and this offender.

38. I am informed that the co offender, Ms Howlett, received a head sentence after appeal from the Local Court of 22 months and a non-parole period of 12 months for her role in the Storage King offence of 27 March 2019. I note, however, that she received a 25% discount for an early plea of guilty and that that term of imprisonment also included a second offence of larceny committed in the early hours of 28 March 2019. As I have already indicated, she also was dealt with under the Local Court jurisdiction.

39. As to Mr Stockdale, he received an aggregate head sentence of 30 months with a non-parole period of 15 months, but that sentence was for a variety of offences with the indicative sentence for the Storage King offence being nine months' imprisonment. He also received a 25% discount for an early plea of guilty and it was his first time in custody. As I have said, I have had regard to the sentences imposed on Ms Howlett and Mr Stockdale, but also to the differences in relevant circumstances as compared with Mr Flanagan's case.

DETERMINATION

40. I am satisfied, in relation to the three offences on which the jury found the offender guilty, that a term of imprisonment is the only appropriate penalty. In reaching that conclusion and in determining the terms of imprisonment, I have had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. I intend to impose an aggregate sentence for the three offences on indictment and fixed terms in relation to the offences on the s 166 certificate.

41. At the time of the current offences, the offender was on parole for an offence of armed robbery. That parole was revoked as a result of these offences and he served the balance of that parole period from 21 May 2019 until 22 January 2021. During that time, he also concurrently served a fixed term sentence imposed by the Local Court for an offence of larceny. He has therefore, since 23 January 2021, served only about 18 days in custody solely on the current matters.

42. While I have a discretion to backdate the offender's sentence further than that, the Crown submitted that any concurrency with the previous period of parole should be minimal. That submission was made on the basis that the current offences were committed only about four months after he was released on parole and there were three separate offences. Also, the matter on which he was released to parole was very serious and, furthermore, he has already had the benefit of serving the four month sentence for larceny entirely concurrently with his balance of parole.

43. Having regard to these matters, I intend to commence the sentences from the day after the expiry of the balance of parole, namely 23 January 2021, but I will make some adjustment to the non-parole period on account of special circumstances. As I am sentencing for three separate offences, I have had regard to the appropriate sentence for each but I have, in accordance with totality principles, tried to ensure that the overall aggregate sentence that I intend to impose is not an overwhelming one which might crush any motivation towards rehabilitation.

44. In relation to the related offences that are on the s 166 certificate, I will deal with those as follows. For the sequence 7 offence of possessing .4 grams of methamphetamine, after allowing for a 25% discount on account of the plea of guilty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I impose a conviction but no other penalty. For the sequence 8 offence, that being the offence of dispose of stolen property, namely the Chima winch, after a 5% discount, I impose a term of imprisonment of nine months to date from 23 January 2021. For the sequence 9 dispose of stolen property, that being another Chima winch, after a 5% discount, I impose the same sentence, that is nine months to date from 23 January 2021. For the sequence 24 offence of disposing of a Krix speaker to Cash Away, after a 5% discount, I impose the same sentence, nine months' imprisonment to date from 23 January 2021. In relation to the sequence 6 goods in custody offence, I note that that offence is withdrawn and it is dismissed.

45. In relation to the matters on the indictment, I impose an aggregate sentence. Given that I am doing so, I am required to nominate the indicative sentences, that is the sentences for each of them that I would have imposed had I not imposed an aggregate sentence.

46. Mr Flanagan, the sentences that I am about to specify - and there will be three of them - are not the actual sentence that you will serve, these are called indicative sentences. Once I have announced those, I will then announce the actual sentence.

47. The indicative sentences are these: for count 1 in the first trial, that being the Storage King March 2019 offence, a head sentence of four years nine months and a non-parole period of three years. For count 2, that being the Storage King break in of April 2019, the indicative sentence is one of four years head sentence with a non-parole period of 31 months. For the remaining offence, that being count 1 in the second trial involving Mr Moon's house, a term of imprisonment of three years six months.

48. I find special circumstances for adjusting the ordinary ratio between non parole period and head sentence based upon the risk of institutionalisation, also the offender's tentative steps towards rehabilitation and the need for him to be supervised for a considerable period once released to parole. As I have said, I have had regard to principles of totality in determining the overall sentence.

49. I impose an aggregate head sentence of six years nine months with a non-parole period of four years six months. Each of those will date from 23 January 2021. The head sentence will expire on 22 October 2027 and the non-parole period on 22 July 2025.

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Decision last updated: 20 May 2021