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Court of Criminal Appeal 20 December 2024

R v Flanagan

[2024] NSWCCA 249

Theft & propertyFirearms & weapons

Citation: R v Flanagan [2024] NSWCCA 249
Court: Court of Criminal Appeal
Date: 20 December 2024
Judge(s): Hamill J, N Adams J, Coleman J

Background

The respondent pleaded guilty to three offences committed over a matter of days in October 2022: one count of aggravated break, enter and steal (s 112(2), Crimes Act 1900), and two counts of robbery armed with a dangerous weapon (s 97(2), Crimes Act 1900). The offences involved partly different co-offenders, different victims, and distinct conduct, including a home invasion in which a firearm was pointed at a victim, and a jewellery store robbery in which the firearm was discharged.

The sentencing judge assessed the break and enter offence as mid-range objective seriousness and the two robbery offences as mid-range and upper end of mid-range respectively. Her Honour also gave weight to significant mitigating factors, including the respondent's childhood circumstances, mental health, and youth. An aggregate sentence of 5 years and 10 months imprisonment was imposed, with a non-parole period of 3 years and 6 months. The indicative individual sentences were 2 years and 9 months, 4 years and 9 months, and 5 years and 2 months.

The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 on the sole ground of manifest inadequacy. The narrower question that emerged at the hearing was whether the sentencing judge had applied too great a degree of notional concurrence when arriving at the aggregate term, resulting in insufficient accumulation to reflect the total criminality of the three separate offences.

  • Whether the aggregate sentence of 5 years and 10 months was manifestly inadequate, having regard to the principle of totality
  • Whether the sentencing judge applied too great a degree of notional concurrence among the indicative sentences, given that the three offences involved different victims, different conduct, and at least partly different co-offenders
  • Whether the aggregate sentence could be assessed as inadequate by benchmarking it against the guideline judgment in R v Henry for armed robbery

Decision

Coleman J (with Hamill J agreeing) dismissed the appeal on the basis that no error was established. The sentencing judge had acknowledged the distinct nature of each offence and the involvement of different victims, and had applied a modest degree of notional accumulation, consistent with the position the Crown itself had put to the sentencing court at first instance. Treating that concession and the resulting approach as an error on appeal was difficult to sustain.

Coleman J rejected the Crown's submission that the aggregate sentence was necessarily inadequate because it was only slightly higher than an appropriate sentence for a single armed robbery offence. That reasoning treated the guideline judgment in Henry as a "tramline" rather than a guide, and failed to account for the respondent's 25% early plea discount and the considerable mitigating weight of his subjective case. The court also declined to dissect the indicative sentences arithmetically to calculate the implied degree of concurrence, describing that approach as unhelpful in the circumstances of this case.

While acknowledging that the sentence was lenient, Coleman J emphasised that a different sentencing court might lawfully have imposed a different sentence without that, of itself, disclosing error. Sentencing judges retain a broad discretion in weighing relevant factors, and an intermediate appellate court should not lightly interfere with that exercise. It was open to the sentencing judge to conclude, through the instinctive synthesis of the sentencing process, that the aggregate sentence reflected the total criminality of the offending.

N Adams J took a different view of the primary question, finding the aggregate sentence manifestly inadequate on the basis that the degree of notional concurrence was too great to capture the serious and distinct criminality of all three offences. However, her Honour exercised the residual discretion available on a Crown appeal and joined in dismissing the appeal. The appeal was therefore dismissed by the full bench, albeit on different reasoning.

Orders Made

  • The Crown appeal against the aggregate sentence was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the majority held that a sentencing judge's decision on the degree of notional accumulation within an aggregate sentence attracts a broad discretion that an intermediate appellate court should not lightly disturb.
  • A Crown submission at first instance that only a "modest" degree of notional accumulation was required substantially narrowed the Crown's ability to argue on appeal that the resulting aggregate sentence was manifestly inadequate for applying precisely that level of accumulation.
  • Guideline judgments such as R v Henry serve as guides rather than fixed benchmarks; the Court of Criminal Appeal rejected an approach that used the guideline effectively as a "tramline" constraining the sentencing discretion by ignoring plea discounts and subjective factors.
  • Arithmetically dissecting indicative sentences to calculate the implied ratio of concurrence to accumulation is not, in all cases, a useful method for identifying error in an aggregate sentence; the Court found it unhelpful on the facts here.
  • Even where one member of an appellate bench finds a sentence manifestly inadequate, the residual discretion available on a Crown appeal may support dismissal where resentencing would produce an unjust outcome having regard to all relevant circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Legge v R [2007] NSWCCA 244
- R v Brown [2012] NSWCCA 199
- R v Grover [2013] NSWCCA 149
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- R v Sara [2020] NSWCCA 119
- Aryal v R [2021] NSWCCA 2
- WS v R [2023] NSWCCA 52
- Ayoub v R [2024] NSWCCA 168
- Bojlevski v R [2024] NSWCCA 208
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435