R v Flanagan

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Paul Flanagan entered pleas of guilty in relation to three offences committed in October 2022, being one offence of aggravated break, enter and steal contravening s 112(2) of the Crimes Act 1900 (NSW) and two offences of robbery armed with a dangerous weapon, contravening s 97(2) of the Crimes Act. The offences took place over a matter of days, and involved partly different co-offenders, different victims and distinct conduct. The sentencing judge considered the break and enter offence to be in the mid-range of objective seriousness, while the two robberies were considered to be at the mid-range, and upper end of the mid-range respectively. Her Honour also referred to various subjective matters which were considered to be mitigating factors, including his childhood circumstances, his mental health and his youth. He was sentenced to an aggregate term of imprisonment of 5 years and 10 months, with a non-parole period of 3 years and 6 months. The indicative sentences for the offences were 2 years and 9 months for the aggravated break and enter offence, and 4 years and 9 months, and 5 years and 2 months, respectively, for the armed robbery offences. The Director of Public Prosecutions appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the sentence was manifestly inadequate. As was accepted at the hearing, the narrow issue on this appeal concerned the sentencing judge's application of the principle of totality when imposing an aggregate term of imprisonment, namely whether there was inadequate notional accumulation of the sentences. The Crown contended that the notional concurrency of the indicative sentences for the various offences went beyond what was open to the sentencing judge, given the profound differences in the offending. It was submitted that this resulted in a manifestly inadequate sentence. The respondent submitted that the sentencing judge made several findings as part of the sentencing exercise, and that the purposes of sentencing pulled in different directions in these circumstances. It was submitted that her Honour carefully analysed these factors and that the sentence imposed was within the permissible range of sentences. The Court (Hamill, N Adams and Coleman JJ) dismissed the appeal and held: Per Coleman J (Hamill J agreeing) The sentencing judge noted the distinct instances of the offending and the fact that there were different victims. The aggregate sentence imposed recognised the separate criminality by applying a modest amount of notional accumulation of the indicative sentences, as the Crown on sentence had suggested: [109]. That there was only "modest" notional accumulation does not mean that a public perception that people are sentenced less seriously for committing multiple offences could reasonably be held. The aggregate sentence imposed ought not be perceived as insignificant when all relevant matters, including the respondent's subjective case, are taken into account: [110]. The Crown's submission that the aggregate sentence imposed by the sentencing judge must be inadequate because it was only slightly higher than a sentence for one matter, appropriately applying the guideline judgment, ignores matters such as the respondent's early plea and the impact of his subjective case. It also treats the guideline judgment effectively as a "tramline", confining the exercise of the sentencing discretion: [111]-[112]. R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111, considered. Legge v R [2007] NSWCCA 244, referred to. The Crown's approach to discern the manifest inadequacy of the aggregate sentence by considering the indicative sentences of each offence reflects an attempt to calculate the amount of notional concurrence and accumulation. It is not of assistance to attempt to construe the sentence and the sentencing judge's remarks in this way. In some cases it may be open to consider the potential for accumulation and concurrency in assessing the exercise of the sentencing discretion, however this is not such a case: [113]-[115]. Bojlevski v R [2024] NSWCCA 208, applied. It was plainly open to the sentencing judge to moderate the sentence in the way her Honour did: [116]. While it may be thought that the aggregate sentence is lenient, that a different court may have imposed a different sentence does not, of itself, indicate error. Sentencing judges must be allowed flexibility in exercise of the sentencing discretion and the weight given to relevant factors are properly matters for the sentencing judge: [117]. It was open to the sentencing judge to conclude that, taking into account the matters she did in the instinctive synthesis of the sentencing process, the aggregate sentence imposed reflected the total criminality of the offending: [119]. R v Sara [2020] NSWCCA 119, applied. Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, considered. Per N Adams J The aggregate sentence imposed was manifestly inadequate, but upon exercising the residual discretion, the appeal should be dismissed: [2]. The principle of totality required that the aggregate sentence encompass the criminality of all three offences, and the aggregate sentence in these circumstances did not do so given the significant degree of concurrence: [6]. The minor degree of accumulation reflected in the aggregate sentence imposed does not reflect the need for the Court to avoid any suggestion that an offender has received a discount for multiple offending. While the sentencing judge ultimately acted on the Crown submission that there should be a "modest" degree of notional accumulation in the aggregate sentence, the degree of notional accumulation in the aggregate sentence imposed was too modest to reflect the separate serious criminality involved in the respondent's offending: at [7]-[8]. R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, referred to. CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, applied.