R v Flanagan; R v Brennan (a pseudonym)

[2019] NSWDC 306

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Flanagan; R v Brennan (a pseudonym) [2019] NSWDC 306
Hearing dates:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Full time custodial order. For orders for Flanagan see [91 - 99]; For orders for Brennan see [100 - 104]
Catchwords:	SENTENCING - Juvenile offender - To be dealt with “according to law”. SENTENCING - Non-parole period - special circumstances – principles to be applied. SENTENCING - Relevant factors on sentence – youth – immaturity – deprived background – long history of offending – drug use – intellectual disability – serious offending - aggravated break and enter – aggravated take and drive vehicle- knife used – on parole – aggregate sentence – totality – parity adult and child.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Administration of Sentences) Act 1999
Cases Cited:	Anderson v R (1981) VR 155 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 DPP v De La Rosa [2010] NSWCCA 155 Elliot v Blessington (2006) 164 A Crim R 208 Hearne v R (2001) 124 A Crim R 451 Hookey v R [2018] NSWCCA 147 JM v R [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571 Lau v R [2010] NSWCCA 43 MAK v R [2006] NSWCCA 381 Millwood v R [2012] NSWCCA 2 Mooney [2016] NSWCCA 231 R v Boney [2001] NSWCCA 432 R v Clinch (1994) 72 A Crim R 301 R v GDP (1991) 53 A Crim R 112 Roper v Simmons (2005) 125 S Ct 1183 Simpson v R [2001] NSWCCA 534; 53 NSWLR 704 Slade v The Queen [2005] NZCA 19 Tepania v R [2018] NSWCC 247 Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629 WKR v R (1993) 32 NSWLR 447
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4
Category:	Sentence
Parties:	Paul Flanagan (the offender) Sam Brennan (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser. Public Defender (for the offender Paul Flanagan)   Solicitors: Mr M Hunter (for the offender Sam Brennan) Ms J Walshe (for the Director of Public Prosecutions)
File Number(s):	2018/00161722, 2018/00190646 (for the offender Flanagan)2018/00167553 (for the offender Brennan)

Judgment- EX TEMPORE REVISED

1. Sam Brennan, a pseudonym, was a child when he committed the offences for sentence.  A child has an entitlement not to be identified in reports of court proceedings.  In any publication of this judgment and in any published judgment he will be referred to as “Sam Brennan”.  This is a statutory non‑publication order pursuant to s 15A Children (Criminal Proceedings) Act 1987.  Pursuant to s 10 of the Children (Criminal Proceedings) Act I direct that the Court be open.  Section 10 is a procedural provision. As Brennan is no longer a child and he is being sentenced with an adult, the court should be open to all.  I have previously directed that Brennan appear in court by way of audio-visual facilities from the cells below the court. I will not set out my reasons for doing so, again.

Facts for sentence

2. At about 3am on 21 May 2018, two young men removed the window flyscreen of a house in Warrawong.  In that house were Ms Greeves, her partner, and a number of young children.  All were asleep.  Having entered the house through the window, the two young men crept past a number of sleeping children into Ms Greeves' bedroom. While she was sleeping they took the keys to her car from her bedside table.  They left the house. Seconds later, using the keys, they took Ms Greeves' Holden Commodore, which was parked in front of the house.  One of the children had seen them. He told Ms Greeves, "Sam and some other guy just came into the house and stole your car".  The police were called.  At 7am that morning, the car was found in Berkeley, it had been set alight. 

3. At 9.40am the same morning, Ms Ming drove her Volkswagen Polo into the commuter car park at Wollongong railway station, dropped a friend and parked. 

4. Two young men were at the bottom level of the car park as she drove into it.  They went up to where Ms Ming had parked.  The dash cam recorder on her car records one of them saying, "Get the fuck out of the car, bitch.  Get out of the fucking car.  Get out.  Get out of the car or I'll stab you.  Get the fuck out of the car now, you fucking dog". 

5. Ms Ming saw that the young person had a blue bladed knife.  The man who had abused her tried to pry the keys from her hand but she would not let go.  That man punched her to the side of the face and she released the keys.  She then got out of the car.  One of the young men tried to take her bag but they let it and her go.  The men hopped into the car and drove from the car park. The car was later recovered in Mt Warrigal, in southern Wollongong.  The knife was still in the car. 

6. Police investigations led them to the two offenders now before the Court, Paul Flanagan and the young person, Sam Brennan.

7. Flanagan was arrested on 23 May 2018.  He tried to resist his arrest, although he was not charged with that offence.  Brennan was arrested on 24 May 2018. 

8. Flanagan was born in July of 1999; Brennan in July 2000.  They were both young.  They were both immature.  They were no strangers to crimes involving property and violence.  Both were on parole.  Both had served time in juvenile detention.  Both have tragic histories going back to when they were born.  Neither had the advantages that most in our community expect. 

Paul Flanagan

9. The material before the Court indicates that Paul Flanagan is an Aboriginal man who grew up in the local area.  His mother died when he was a teenager.  He has had little contact with his father, who has been in and out of gaol and is today, again in custody.  Flanagan was raised in an environment where he was regularly exposed to substance abuse and domestic violence.  He has rarely had any stability in his life; although he was briefly in a foster care and subject to intensive involvement by Family and Community Services.

10. Flanagan took up the use and abuse of illicit drugs and alcohol when very young.  From the age of 12 he was in and out of Juvenile Correctional Centres.  Most of his teenage years were spent in juvenile detention. 

11. There has been one brief period of relative stability in his life. He was released to parole. He breached that parole but was again allowed parole by the Children’s Court. During this second parole term he engaged with Juvenile Justice and accepted their direction.

12. During this period Flanagan formed a relationship with his current partner, the mother of his daughter.  He was able to find accommodation and work, but problems with alcohol, problems with coping with responsibility; including the responsibility to maintain contact with parole and then the adult parole service, caused him to give up.  He gave up on himself; he gave up on his child; he gave up on his family.  He told Mr Bendrick, who prepared the report on his behalf that he just did not care: Flanagan: exhibit 1. 

13. Mr Bendrick’s report notes expressions of remorse for the distress caused to his victims. This appears to indicate he has matured enough to understand the consequences of his actions for himself and others.

14. All the material before me today, including my observation of the number of people who have come to support him, shows a basis for him having some motivation to change.  He has support from extended family members and his partner. His parents were not there for him but I accept he wants to be there for his children.  He has expressed good intentions but he will need to do a lot of growing up before he can put those intentions to good effect. 

15. Flanagan requires extensive help, both in custody and in the community, to deal with many entrenched problems. They include his need to deal with a long history of the use and abuse of illicit drugs and alcohol, and his intergenerational history; there have been no positive role models in his life. He has not yet shown the capacity or the will to learn how to lead a normal life in the community.

16. Today however, he has presented as a young parent who has at least some experience of work. However, while he showed he can lead a law‑abiding life, to be frank, he failed in that attempt. Given his long history of disadvantage he will require, as Mr Bendrick concludes, close supervision in the community for a fairly extensive period when he is released.

Brennan

17. Brennan is the eldest of six children.  From the start, he had no advantages.  He was born suffering the impacts of his mother's long history of substance abuse.  From a very early age he was a witness to, and, under the influence of his father, engaged in, criminal activity.  Through his life he has been exposed to illicit drug use and crime.  He has never had an opportunity, even in custody, to abstain from the use and abuse of methamphetamine and cannabis. He took up illicit drug use when he was aged ten. 

18. Sam Brennan has never had an opportunity to be tested in the community.  All his life almost everyone he has ever associated with socially has been involved in with crime and substance abuse.  He has a partner.  He has a daughter. Although he has responsibilities for children, he has never lived up to those responsibilities because, frankly, he himself is a child who has never learned how to be a positive role model.

19. I am indebted, as always, to those who prepared a comprehensive Juvenile Justice report for the Court: Brennan exhibit C.  Brennan told them that he regrets his offences but it appears he has shown no real insight into his own behaviour, let alone the impact of his crimes on others. I accept that this is because of what are described as; “a complex mix of mental health symptoms and a combination of numerous and significant vulnerability factors” 

20. The Juvenile Justice report indicates that he may, as he gets older, find the motivation to address his many problems.  It is however impossible to test or understand how motivated he really is. He too will require significant professional support if he is to improve his chances of leading a normal life in the community. At the moment those chances are low.

21. Brennan requires as much intervention as he can be given. It is suggested he engage with the EQUIPS programs, the Young Offenders Program, and on release programs such as Tribal Warrior Aboriginal Indigenous Mentoring Experience.  He will require initial transitional support from Corrective Services when he is returned to the community.

22. The Juvenile Justice Report indicates that so concerned were Juvenile Justice about him that in November 2018, Brennan was admitted to a hospital for a mental health assessment. His behaviour there led to him being placed into the adult unit. 

23. His negative behaviour in custody remains a concern. There are many incidents on his record, some serious. Although, there appears to have been some slight change in that pattern since December 2018.  His behaviour is now described as, "inconsistent".  There are periods when he complies and adheres to rules and progresses.  Then there are other times when he cannot be reasoned with and chooses to challenge staff. 

24. While Brennan requires intensive engagement with counselling, to date, he has not gained any insight into himself - a product, no doubt, of his inability to manage himself. His family background helps explain this. His mother and father are both presently, as I understand it, in custody. 

25. Brennan has plans to be a father to his child, and it may be that those plans can be brought to fruition, but there will be frustrations and problems along the way.  On release Family and Community Services will understandably take a protective attitude to his child and the children of his partner on release.  His motivation to change will be challenged.

26. He has never really participated in formal schooling.  He is a young, Aboriginal man with more problems than many.  The report indicates that he has an intellectual disability, which may account for some of his behavioural problems. There was, and is, a need to investigate possible mental health problems.  Brennan has no real insight into the impact of his crimes on others. 

27. With assistance, Brennan wrote a letter to me. That letter focused on himself but I suppose it is a start because to date he has shown little concern for himself, let alone for others.

28. Brennan still presents as a concern to Juvenile Justice.  Unless he can prove himself to Corrective Services while in custody, to those who will be supervising him on release, and to Family and Community Services his future is bleak.  He will need a staged release into the community.  If the pattern of drug use - offending – custody - release - drug use– offending - custody, is to be broken, he will need considerable assistance in the community. The helpful chronology tendered by Mr Hunter for Brennan, indicates how little time Brennan has had in the community: Brennan exhibit 1.

29. The High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, indicated that matters relating to a history of disadvantage should be, so far as possible, proved in material put before the Court. Without going into it in any detail, because it is comprehensive, the material relating to his family history and his history as a child before the Children's Court in care proceedings, meet the Bugmy criteria, if I can use that shorthand.

30. A judge cannot help but be moved by the problems that beset both young offenders from when they were very young.  A judge however also has to have regard to what was done; the crimes that were committed, and the impact of those crimes on their individual victims and on the community.

31. A judge's job, more so than Children's Court magistrates, is to punish and extract retribution.  A judge has a job to try, through the sentences imposed, to prevent crimes by deterring others and impose penalties that will signal to the offenders themselves the consequences for their criminal actions. 

32. A judge also has to do what can be done to give the offenders an opportunity, while in custody, while supervised in the community, and eventually after the sentence expires, to lead a normal community life.  It is in no‑one's interests that they offend again.  It is in everyone's interests that a cycle that here has continued over generations, be broken.

33. Already, each offender has been put at risk of institutionalisation.  There is a risk that if they spend too long in gaol they might lose hope, and if they lose hope they will have no capacity to have independent control over their lives. While they are in custody; when they eat, when they sleep, who they meet, who they associate with, what they do, will all be regulated.  It is a system that is not designed to help them learn how to be independent; how to live in the community and make decisions for themselves or how to find work, how to care for others, or care for themselves.

34. How then is a judge to resolve these competing objectives? There are a number of important principles that need to be discussed. I will try to do so as succinctly as possible.  Not every matter urged on a judge has to be or can be fitted into categories.  Human behaviour and characteristics are too varied.  The sentencing exercise involves the synthesising of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment, usually expressed in time: Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629.

35. The circumstances and background of both offender and the seriousness of what was done by them, reflect what was said by the High Court in Weininger v The Queen at [24]. They include some of the worst and the most challenging aspects of human behaviour.

36. There are two victims who must also be considered; others were also affected by these crimes.  There are no Victim Impact Statements, but their absence does not give rise to an inference the offences had little or no impact on their victims.  I have to, as both written submissions here urge me to do, focus on the objective seriousness of what was done. 

37. It is clear that the offences were not well thought out, both were relatively spontaneous but each required some degree of thought and planning.  That thought and planning did not go so far as to consider the high likelihood that they would be detected and, if arrested, returned to custody.  In both matters for sentence the offenders targeted another's motor vehicle, but while that was the target of their crimes, in reality, each offence was an offence against a person.  It is the owners of the vehicles who were targeted.

38. Ms Greeves' home was entered in the early hours of the morning while she and her children, and other children, slept.  I accept that the offenders did not want confrontation, but the risk of confrontation was real.  Two young men entered into a sleeping woman's room, stole her keys, intending to take her car.  The car was taken and the car was destroyed. 

39. Unless you are fortunate enough to own your own home, a car is generally the most expensive item any of us own. Cars are, in the modern world, essential to family and work life.  To have your car taken and then destroyed can have a considerable impact. In addition, I have to consider the risk of psychological damage from knowing that two young men, possibly affected by drugs, were wandering around your bedroom, and had come through the room where children were sleeping. 

40. Ms Ming was confronted at knifepoint when she was alone and vulnerable in her car.  No one else was present in the carpark; she was targeted.  She was struck by Flanagan, while Brennan stood by with the knife.  She was not to know that that was the extent of the violence.  The threat of further violence was very real, and was made plain to her by what was said. Where citizens are robbed near public transport, assaulted and threatened at knifepoint, it can have a terrible impact on them. 

41. Crimes such as the ones for sentence, particularly where they occur in the home or near places where we all have to go, such as railway stations, can have serious consequences; people in the community lose confidence, they feel that the police cannot protect them, they learn to fear others and lose trust in others.  When people are fearful, the entire community suffers.  Fear breaks down bonds between community members; the bonds that make us a community.  Such fear robs many of their freedom to go out; to use public transport, and to participate in and enjoy community activities. 

42. All the material before me indicates that both offenders were affected by illicit drugs, at the time.  Their drug use cannot excuse their conduct.  In some ways, it can make the offending more serious; as they were not thinking about themselves or others, anything could have happened.

43. Drug addiction is not an excuse to commit any crime.  It may, however, be taken into account as a factor relevant to sentencing. It allows me to understand why they did what they did and continued to commit crimes until arrested. Drug abuse helps explain the impulsivity of what was done and their incapacity to exercise sound judgment; it can explain the lack of planning or thought about consequences.  It is relevant to their prospects and it provides some assistance to those tasked with attempting to rehabilitate both offenders.

44. It is a sad indictment on our community that Aboriginal Australians make up over 25% of the 13,500 people now in gaol in New South Wales.  Those terrible figures reflect a history of dispossession and associated social and economic disadvantage across generations, as is illustrated by this case.  Until there is legislative change, however, this fact is not a matter that a sentencing judge can take into account; see Bugmy.  That said, an Aboriginal offender's deprived background can mitigate the sentence that would otherwise be appropriate, in the same way that a deprived background would mitigate a non‑Aboriginal offender's sentence.

17. The effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every court.  The background of both offenders has, on all the material before me, left them with few emotional or other resources to guide their behavioural decisions.  The impact of their dysfunctional childhoods and their parents spending most of their lives either in custody or drug dependent, cannot be underestimated; Millwood [2012] NSWCCA 2. It means that their moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marked. As Rothman J said in Hookey v R [2018] NSWCCA 147:

"The answer is no longer incarceration, but lies in the treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environments."

46. Both offenders were very young. The principles in relation to young offenders are well known: R v GDP (1991) 53 A Crim R 112; Hearne v R (2001) 124 A Crim R 451; KT v R (2008) 182 A Crim R 571; JM v R [2012] NSWCCA 83. Generally, there is a practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes. The law recognises the immaturity which is inherent in youth.

47. Here, Brennan is entitled to have s 6 of the Children (Criminal Proceedings) Act 1987, applied in his case, but the extent to which it applies depends, to a large degree, on the nature of the particular offence committed.  There is a strong community interest in the rehabilitation of immature young people.  This can sometimes conflict with the protective function of the Court, particularly where crimes such as these are concerned.  There is a tension between these interests.  It is particularly apparent when courts consider general deterrence and principles relating to it.  For some young people, general deterrence can be largely discarded.  Focus has to be on the breaking of the cycle of crime and custody.

48. It is in both offender's and the community interest that that be done, but where those who commit grave crimes in their late teens are concerned Courts also have to consider the protective function of the Court and retributive function of the Court. 

49. Courts need not average out such considerations, one fact that can be determinative.  Here, despite past failures, real emphasis must still be given to each offender's rehabilitation.  Their crimes were serious, but they were committed by an immature child, Brennan, and an immature young adult, Flanagan.  Each offender’s criminal and moral failures should not be equated with those of a mature adult. It is accepted that adolescent decision‑making capacities are immature:  Slade v The Queen [2005] NZCA 19, at [43]; Elliot v Blessington (2006) 164 A Crim R 208, at [127] or the conclusions of the United States Supreme Court in Roper v Simmons; Roper v Simmons (2005) 125 S Ct 1183. There is a sound basis for a distinction between the sentences that can be imposed on adults and children. Harsh dealings with young offenders under the guise of community protection can have an adverse effect on the community.  There is little before me to indicate that we have learnt any particular lessons from the many cases where courts such as mine have to sentence offenders of a similar background. 

50. We, as a community, must focus upon community protection at all levels.  Here, the prospects for both offenders are bleak, but the effort has to be made, and they have to be encouraged to participate in that effort.  As I have discussed with counsel it would be of considerable help if culturally appropriate options that target the underlying causes of their crimes were available.

51. It is also recognised that harsh penalties and restriction on entries to Drug Court facilities, leave a sentencing court in this region of the State with little scope to build a sentence around the individual's circumstances.  As I have remarked before, and I am sure will remark again, offenders from the Illawarra do not get access to the Compulsory Drug Treatment Correctional Centre.

52. I also have to take into account evidence that Brennan has an intellectual disability.  There is no evidence of a mental illness but it is clear that he has limited capacity to manage his impulsivity, interpret information, and control his aggressive behaviour; an area of concern and intervention in the custodial setting.

53. An intellectual disability is a substantial limitation on present functioning, it attracts the same application of proper principle often given to people with a mental illness; DPP v De La Rosa [2010] NSWCCA 155 at [177]; Andersonv R (1981) VR 155. Brennan’s intellectual disability does mean that he will have problems in custody. It means that his moral culpability is reduced, although I have already taken that factor into account because of his deprived background and youth is concerned; care needs to be taken not to double or triple count this factor. Brennan is clearly not an appropriate vehicle for general deterrence. I am sure a custodial sentence in an adult gaol will weigh more heavily on him than the theoretical average prisoner. This sentence will be onerous. However, there is a need for specific deterrence he must learn, and act on what he has learnt.

54. Brennan must recognise that his past actions have consequences, and that includes his response to juvenile detention. His continued offending on release makes him, potentially, more of a danger to the community.  Courts have to pay particular attention to protection of the public, even when sentencing young offenders and children.

Offenders on parole

55. Both offenders committed offences on parole. That fact justifies harsher punishment.  A promise was made to be of good behaviour, and that promise was broken. 

56. When Brennan was returned to custody on 25 May 2018, his parole was revoked by the Children's Court.  His parole expired on 28 October 2018. 

57. Flanagan too was on parole.  He was released on 2 March 2016.  He breached his parole, and returned to custody.  He was then given parole again.  His balance of parole ends on 6 April 2020.  I note he is scheduled for parole review at the end of May 2019.  Presumably, he went into custody on 25 May 2018.  He has also served four months for two sentences imposed in the Local Court since returning to custody.

58. When I come to sentence, I must attempt the hypothetical exercise of assessing the offender’s parole position. It would appear that the actions of both offenders that led to the breach, was the commission of these offences. There is no clear rule that governs all cases.  I have to exercise my discretion.  Particularly so far as Flanagan was concerned, there should be some punishment for the commission of the Local Court matters.  There is no discount for multiple offending. 

59. I propose to allow Brennan's sentence to commence when he went into custody, but there must be some short period of additional custody so far as Flanagan is concerned to take into account the Local Court sentences.

Application of sentencing principles

60. These sentences must be determined having regard to the circumstances of both offenders, and their respective degrees of culpability, if any.  Different personal and criminal histories can justify a difference in the sentence each will serve in prison but like must be compared with like.  The principle is known as parity.

61. In like cases, those principles can also encompass the structure of a sentence and its non‑parole period: Lau v R [2010] NSWCCA 43. Both offenders will benefit from my giving full weight to their age and immaturity. I regard both as equally liable for the offences. As I discussed with counsel during submissions I do not distinguish their roles. Some additional weight must be given to the mitigating impact of Brennan's intellectual disability, and the fact that he was, at law, a child.

62. Additionally, I have to take into account that Brennan, unlike the adult offender, Flanagan, has a sentence which is not subject to the guidance of a standard, non‑parole period.  That differentiation can be, and should be, relatively modest.  If a sentence differentiates too greatly because of one offender being an adult and another a child; where they are both close to the dividing line of 18, the adult may well have a justifiable sense of grievance if too different a sentencing principle applies to him: R v Boney [2001] NSWCCA 432.

63. I return to consider the guidance offered by the maximum penalties and, where applicable, the standard non-parole period.  The maximum penalty for aggravated break, enter and steal is 20 years' imprisonment. While the offence here is particularised as being in company, there is an additional aggravating circumstance in that that offenders knew persons were in the home. The same maximum penalty applies to a child dealt with at law, which for reasons I will outline later is my intention here. The standard non‑parole period regime does not apply to Brennan, as he was a child when the offences were committed. 

64. Parliaments have said that for an offence committed by an adult and which falls, objectively, in the middle of the range of seriousness, there should be a standard non‑parole period of five years. 

65. For the aggravated take and drive, s 154C(2) of the Crimes Act 1900, the maximum penalty is 14 years' imprisonment, with a standard non‑parole period for an adult offender of five years. 

66. Courts have to pay careful attention to maximum penalties and, where they apply, standard non‑parole periods.  It is not just because Parliament has legislated for them:  both are sentencing measures to be balanced with all other relevant factors.  While they invite a comparison between the incident case and other cases, it is not appropriate to look first to a maximum or, if applicable, the standard non‑parole period and then simply make deductions from it.

67. The process of comparing and contrasting the actual offence with the abstract one, as Johnson J said in Tepania v R [2018] NSWCC 247, is not necessary, but what is necessary is, as I hope I have done, is I take into account all of the objective circumstances and make a proper assessment of what was done and its objective seriousness. I am required to give, where it applies, context to the standard non‑parole period, but I cannot engage in a staged approach to sentencing.

68. There are reasons here, so far as Flanagan is concerned, for variation from the standard non‑parole period.  It is not in dispute that his offending falls below the middle of the range, so far as both counsel are concerned.  Their debate was primarily as to the extent to which it fell below the middle of the range.  I will focus upon what was done, and the objective facts of what was done, but I have to also take into account his early pleas of guilty, his deprived background, and his youth.  All of these matters have to be synthesised and will result in a substantial finding in respect of special circumstances, another significant reason for variation from the standard non‑parole periods.

69. Ultimately, I hope that what I have done, as I am required to do, is discuss both the objective and subjective matters, discuss their significance and make a value judgment as to the appropriate sentences. 

70. I intend to impose aggregate sentence. I am allowed some flexibility in determining the structure of the sentences.  I must indicate an appropriate sentence for each offence, and structure the sentence so that the overall sentence is just and appropriate to the totality of the offenders' criminal behaviour.

71. Each indicated sentence will be reduced to take into account the guilty pleas and when they were entered.  I have taken care when accumulating not to erode that benefit.  They were distinct and discrete offences, although they occurred on the same day.  They must also be served, at least in part together with the balance of parole.  It is well recognised that severity of a sentence is not simply the product of a linear relationship.  For example, a sentence of five years is more than five times as severe as a sentence of one year: The total sentence can be out of proportion to the degree of criminality involved, if we simply compound or add one to the other.

72. The severity of a sentence increases at a greater rate than the simple, linear increase in the length of a sentence: R v Clinch (1994) 72 A Crim R 301 at 306, approved in MAK v R [2006] NSWCCA 381. The Court in MAK also noted that extremely long sentences may be crushing on an offender or that sentences can induce a feeling of hopelessness and destroy expectations of life after release.  This is particularly so for young, immature offenders, who have, to date, had no experience of living as part of our community, and those to whom what are now known as Bugmy principles apply.

73. Extensive studies have shown that taking people out of the community, putting in a criminal learning environment such as a prison, can reinforce criminal identity, and diminish or sever social ties that encourage lawful behaviour; that is responsibilities with partners and children: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

74. Harsh prison conditions do not necessarily create a greater deterrent effect. I note that neither offender seems to have been significantly deterred by their periods in juvenile detention. 

75. The evidence relating to each offender's need for extensive rehabilitation in the community, a staged release program, help adjusting to normal life, to avoid, if possible, the risk of continuing institutionalisation, and the need to take into account accumulation of sentencing, all provides a basis for a finding of special circumstances.

76. I am mindful of the requirement that the minimum period spent in custody should properly reflect the gravity of the offending behaviour and the purpose of the sentencing; Simpson v R [2001] NSWCCA 534; 53 NSWLR 704, at 717 [59]. The Bureau of Crime Statistics and the Victorian Sentencing Advisory Council report, also indicate that supervised parole, monitored parole, assistance in the community, has a greater success rate than simply allowing a person to be released unsupervised: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497

77. It is important, and I say this for both offenders, that they understand their release at the end of the parole period is not automatic; release must be earned. If parole is not earned, it will not be granted, and they may serve the whole of their term in custody and may be released into the community at the expiry of their sentence without assistance. The State Parole Authority will not make a parole order directing the release of an offender unless it is satisfied it is in the interests of the safety of the community to do so: s 136 Crimes (Administration of Sentences) Act 1999.

78. Although serious, Brennan’s crimes are not “serious children's indictable offences: ”s 3 Children (Criminal Proceedings) Act. I have to determine whether this matter proceeds according to law, or in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act.

79. I have to have regard to the seriousness of the offending, the nature of the offence concerned, the age, maturity at the time of the offence and at the time of sentencing, and the seriousness, nature and number of any prior offences committed.  In doing so, I take guidance from what fell from the Court of Criminal Appeal in WKR v R (1993) 32 NSWLR 447, and the Juvenile Justice report: exhibit C.

80. Mr Hunter, for Brennan, submits a control order would be the most appropriate disposition.  He also submits that a non‑custodial option could be imposed because, in a chronological sense, Brennan remains very immature and suffers from emotional dysregulation. 

81. I cannot accept those submissions. The facts of both matters make clear, as the Crown properly submits, that they must be dealt with at law.  Brennan is now 18, he has a significant record of offending. He has continuous involvement with juvenile justice since he was very young but he has not engaged with Juvenile Justice.  His time in detention has been marred by many misbehaviour reports and serious incidents.  It is submitted that he may have changed his attitude, but I cannot be satisfied of that.  He has breached numerous community based orders.  He has breached by non‑compliance and further offending.  The time has come for him to be dealt with at law.

82. In doing so I did not under estimate the negative impact serving the balance of his term in an adult gaol will have on him; he will be extremely vulnerable.  Gaols are inherently violent places.  He will be vulnerable to violence. He will be vulnerable to negative influences. He will be vulnerable to a repetition of the pattern of behaviour that blighted his parents' lives.  They, too, are in custody again.  Repetition of misbehaviours, the sort of misbehaviours that occurred in juvenile detention, will lead to much harsher discipline in adult gaols, and it could result in him being refused parole.  While the Court can make a finding pursuant to s 19 Children (Criminal Proceedings) Act, the material before me does not justify further time in a juvenile detention.  Brennan’s sentence should be served in an adult institution, given the poor engagement with juvenile justice and the lack of any positive signs that he would benefit from further time in juvenile detention.

83. I am indebted to Ms Walsh, solicitor for the DPP, Mr Fraser, Public Defender for Flanagan, and Mr Hunter, solicitor from the Aboriginal Legal Service for Brennan, for their comprehensive submissions.  I hope this judgment does justice to them.  I have not explicitly referred to each of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentences in each matter.

84. I take into account the utilitarian value of the pleas of the guilty pleas. Where entered or indicated in the Local Court they justify a reduction of 25% of the otherwise appropriate sentence.  In one matter, Brennan took some time to acknowledge his guilt.  I do not undervalue the value of the plea, even if it came late; Mooney [2016] NSWCCA 231. Here, we were able to list another trial and the plea meant that witnesses, including a child, did not have to give evidence. I propose to allow 12.5% for that particular matter. 

Synthesis

85. So far as Flanagan if concerned, there is some indication of motivation and insight.  When tested in the community, he has shown that he is capable of leading a law abiding life, although that attempt failed by the commission of this offence.

86. So far as Brennan is concerned, his letter indicates that, with assistance, he can understand some of the basic problems that led him to commit these offences. He can, if he thinks about it, slow down and focus on his future and take up assistance, if it is offered to him. If just gives up; if he thinks as he says in his letter, "I am going to be destroyed by this term in custody", he will be destroyed by it.  He has capacity; he has things to look forward to.  I have structured the sentence in a way that will give him a date to work towards but he has to earn release on that date. 

87. The offenders knew that if they committed further offending, they would be back in custody.  Past detention, heavy sentences, risk of detention, did not prevent what occurred here.  They have backgrounds that help the Court understand why they are here for sentence. 

88. Mitigating factors can only go so far, they cannot lead to the imposition of penalties which are disproportionate to the seriousness of what was done. There is a legitimate community interest in providing both offenders with opportunities to prove themselves while in custody, and for reducing the sentences as far as they can be reduced, both in the head term, and the period that must be spent in custody, but there is also a legitimate interest in the community in the denunciation of punishment, and punishment of crimes such as those committed.

85. There is a need here to vindicate the dignity of each victim, to express the community's disapproval of this offending and afford some protection by the removal of the offenders from the community to the vulnerable.  As I have said, if there is repetition of offending such as this, the leniency, which they may not appreciate, is extended today, is unlikely to be extended in the future. 

86. I will enter convictions in relation to each matter.  There will be aggregate sentences.  I will take into account the matters that I have outlined, so far as both offenders are concerned.  While different maximum penalties apply, my assessment of objective seriousness is such that I would have to regard the s 154C matter as more serious, even though carries a lesser maximum penalty.  I have therefore determined to impose, as a starting point, similar penalties for both matters, and then accumulate.

Orders - Flanagan

91. While the car theft matter was a separate charge so far as Flanagan is concerned, it was the subject and the rationale for the break and enter.  That sentence should be served concurrently.

92. Flanagan’s other matters can be dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act.  There will be a driver’s licence disqualification, for the minimum period three months.  It will take effect when he is released on parole.

93. So far as Flanagan is concerned the indicated sentence for both offences, , for the s 112(2) aggravated break and enter, is three years' imprisonment.  Because the offence carries a standard non‑parole period, I indicate a non‑parole period of one year and six months.

94. So far as the aggravated take and drive, I indicate a sentence of three years, with a non‑parole period of one year and six months.

95. So far as the take and drive on the 166 certificate is concerned, I indicate a sentence of nine months' imprisonment. 

96. There will be an aggregate sentence in this matter of three years and nine months.  The non‑parole period of one year and 11 months will commence on 23 July 2018.  It reflects a substantial finding of special circumstances.  You will be eligible for consideration to release to parole on 22 June 2020.  The total sentence should expire after a parole period of one year and ten months. 

97. A section 10A on the other two matters.

98. To repeat - three years and nine months, non‑parole period of one year and 11 months, parole period of one year, ten months, to commence on 23 July to reflect the accumulation and the order will expire on release on 22 June 2020.

99. Some advice for you, Mr Flanagan; whether you take it or not, is a matter for you. You have shown some maturity.  I hope that you take advantage of the time that remains in custody to plan for your future, and meet up with your family again. 

Orders - Brennan

100. So far as Brennan is concerned, the starting point for his sentences was three and a half years.  So far as the matter that came late, there will be a sentence of three years.

101. So far as the sentence for the carjacking (s 154C), there will be a sentence of two years and seven months.

102. The aggregate sentence is one of three years and four months, it will commence on 24 May and expire on 23 January 2020.  There will be a parole period of one year and eight months from that date.  RW will eligible for consideration for release to parole on 23 January 2020.

103. What that means, Mr Brennan, is that you will have a year, effectively, in an adult gaol.  If you do not accept the guidance offered by Community Corrections, if you decide that you are going to be defiant, you may not get parole. You have a year to plan for your future and your future may involve a period of transition into the community.

104. The effective orders are, so far as Brennan is concerned, a sentence of three years and four months, 50% non‑parole period, one year, eight months, commenced on 24 May 2018, expired on 23 January 2020.

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Amendments

12 July 2019 - Amendment to date [96]

18 June 2025 - Additional subheadings added.

Decision last updated: 18 June 2025