Citation: R v Flanagan; R v Brennan (a pseudonym) [2019] NSWDC 306
Court: District Court of New South Wales
Date: 10 May 2019
Judge(s): Haesler SC DCJ
Background
Two young men, Paul Flanagan and Sam Brennan (a pseudonym used pursuant to a statutory non-publication order under the Children (Criminal Proceedings) Act 1987), were sentenced together for serious offences committed in May 2018 in the Wollongong area. Flanagan was born in July 1999 and Brennan in July 2000. Brennan was a child at the time of the offences but had since turned 18. Both were on parole when the offences occurred, and both had prior histories of juvenile detention.
The offences arose from two related incidents in the early hours and morning of 21 May 2018. In the first, both men entered a family home in Warrawong while the occupants slept, took car keys from a bedroom, and stole a Holden Commodore, which was later found burned out. In the second incident, at a Wollongong railway station car park, one of the offenders approached a woman who had just parked, threatened to stab her, punched her, and seized her car keys before both men drove away in her Volkswagen Polo.
Both offenders came before the court on charges including aggravated break and enter, aggravated take and drive a conveyance, and related matters. Each had a long and tragic personal history, marked by substance abuse, exposure to domestic violence, absent or criminal parents, and significant periods in juvenile custody.
Legal Issues
- How to sentence a young offender who was a child at the time of offending but is now an adult, being dealt with alongside an adult co-offender
- What weight to give to youth, immaturity, deprived background, intellectual vulnerability, and drug dependence as mitigating factors in sentencing
- How to apply the principle of special circumstances when setting non-parole periods, particularly for young offenders requiring extended supervision on release
- How to construct aggregate sentences that satisfy the principle of totality
- How to achieve parity between sentences for an adult and a juvenile co-offender involved in the same serious offences
Decision
Haesler SC DCJ approached the sentencing of both offenders with careful attention to their individual circumstances, while acknowledging the seriousness of the offending. The offences involved a home invasion on sleeping occupants including children, and a violent carjacking with a knife. The objective gravity of those offences was significant, particularly the aggravated take and drive involving a knife and physical assault on the victim.
The court weighed multiple mitigating factors for both men: their youth and immaturity, the profound disadvantage each had experienced from birth, their long histories of drug abuse from childhood, their Aboriginal backgrounds, and the absence of positive role models throughout their lives. For Brennan, additional vulnerability factors including mental health concerns and what the Juvenile Justice report described as a complex mix of symptoms were also relevant. Consistent with the High Court's approach in Bugmy v The Queen, the court accepted that the effects of profound social disadvantage do not diminish over time and must be taken into account at sentencing.
Despite those mitigating factors, both men were on parole at the time of the offences, had extensive prior records, and had demonstrated limited insight or capacity for rehabilitation to date. The court found that special circumstances existed for both offenders, warranting a departure from the standard non-parole period ratio, given that each would require substantial supervision and support upon release. Parity between the two sentences was also a relevant consideration, with adjustments made to reflect that Brennan was younger and a child at the time of offending.
Orders Made
Flanagan:
- Aggregate sentence of 3 years and 9 months imprisonment
- Non-parole period of 1 year and 11 months, commencing 23 July 2018
- Eligible for consideration for release to parole on 22 June 2020
- Parole period of 1 year and 10 months
- Section 10A orders on two additional matters
Brennan:
- Aggregate sentence of 3 years and 4 months imprisonment, commencing 24 May 2018
- Non-parole period of 1 year and 8 months (50% of total sentence)
- Eligible for consideration for release to parole on 23 January 2020
- Parole period of 1 year and 8 months from expiry of non-parole period
Key Takeaways
-
A child who was a child at the time of offending but has since turned 18 may be sentenced in an open court alongside an adult co-offender, though statutory protections against identification continue to apply, and the sentencing court must still treat youth and childhood disadvantage as significant mitigating factors.
-
Under the principles affirmed in Bugmy v The Queen, the effects of severe social deprivation, including exposure to violence, substance abuse, and criminal environments from birth, remain relevant mitigating considerations regardless of how extensive an offender's prior record becomes.
-
Special circumstances justifying a lower-than-standard non-parole period ratio are particularly apt where a young offender will require intensive supervision, rehabilitation programs, and transitional support upon release into the community.
-
The District Court constructed aggregate sentences for both offenders that reflected the totality principle, ensuring the combined sentences were proportionate to the overall criminality rather than simply cumulating individual terms.
-
Parity between the sentences of adult and juvenile co-offenders remains a live issue even where the juvenile has since become an adult; the court must account for the difference in age and maturity at the time of the offences when calibrating the respective sentences.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 10, 15A
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- DPP v De La Rosa [2010] NSWCCA 155
- Hookey v R [2018] NSWCCA 147
- JM v R [2012] NSWCCA 83
- KT v R (2008) 182 A Crim R 571
- MAK v R [2006] NSWCCA 381
- Millwood v R [2012] NSWCCA 2
- R v Clinch (1994) 72 A Crim R 301
- Simpson v R [2001] NSWCCA 534; 53 NSWLR 704
- Tepania v R [2018] NSWCC 247
- Weininger v The Queen [2013] HCA 14; (2003) 212 CLR 629
- WKR v R (1993) 32 NSWLR 447
- Lau v R [2010] NSWCCA 43
- Mooney [2016] NSWCCA 231
- Roper v Simmons (2005) 125 S Ct 1183