STATE OF TASMANIA v MITCHELL ROBERT FLANIGAN 26 APRIL 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Flanigan, you have been found guilty by a jury of one count of burglary, one count of aggravated burglary and one count of aggravated armed robbery. You were found not guilty of the crimes of murder and unlawfully setting fire to property. The charges arose out of an incident which occurred on 23 January 2022 when you and three others travelled to a remote rural property at Chilcotts Road, Sprent with the intention of stealing firearms from that property. It culminated with the property owner, Mr Jupp, being badly assaulted and ultimately killed. Whilst, of course, you bear no criminal responsibility for his death, the fact that that was the ultimate result of this planned criminal enterprise, emphasises why the theft of firearms from remote rural properties, in circumstances where violence is used, are very serious crimes. The prosecution case was that, at least, by the time you entered the property at Chilcotts Road you shared a common intention with your co-accused to steal firearms, that you in fact entered a shipping container intending to steal those firearms, and that the crimes of aggravated burglary and aggravated armed robbery were of such a nature that their commission was a probable consequence of carrying out the common intention to steal firearms from the property.
It is of course for me to find facts for sentence, consistent with the jury verdicts. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in your favour if they are proved on the balance of probabilities.
The relevant details of the incident as I find them to be, are as follows. During the afternoon of 23 January 2022, you went to the home of Mr Pyke, one of your co-accused. Another of your co-accused, Ms Coleman, was also there. The three of you spent several hours together that afternoon smoking methyl amphetamine. You then drove Mr Pyke’s car to the home of Mr Baddeley, the third of your co-accused, and collected him. The four of you then spent time together, parked near a cemetery, consuming more methyl amphetamine, before you drove the four of you out to the property at Chilcotts Road. You suggested in your evidence at trial that you were fearful of Mr Pyke and that basically everything that you did on 23 January 2022 was driven by that fear. Whilst I accept that you had some level of angst pertaining to Mr Pyke arising from an incident that I accept occurred in 2019, I find that your evidence about your level of fear was exaggerated. I do not accept that your fear of Mr Pyke was the catalyst for your behaviour on this day.
In 2019 Mr Pyke assaulted you. In your evidence you said Mr Pyke stabbed you in the lower left back, near your kidney. Mr Pyke was charged with the offence of common assault, which was particularised as scratching you on the back with a knife. It is not necessary for me to make specific findings as to what occurred, although your description of it compared to what Mr Pyke was, in fact, charged with, is consistent with my impression that you had a tendency in your evidence to exaggerate your fear of Mr Pyke. In any event, you declined to appear as a witness in respect to that charge and the prosecution was discontinued. Mr Pyke then claimed you owed him money, essentially as compensation for time spent in custody as a consequence of you bringing the allegation against him. You agreed to pay that debt, and were doing so by regular fortnightly instalments of money. Sometimes you would drive for him and money would be deducted from the debt. As at 23 January 2022, you had paid $4,500 of the $5,000 debt. I accept that on the 23 January 2022 you went to Mr Pyke’s to drive for him to reduce this debt further, but I do not accept that you were compelled by fear to do so. It was convenient to you to reduce the debt. You had in the past refused to act as a driver for Mr Pyke when it was not convenient for you to do so and that was, it seems, without repercussion. You could have done so again, but instead you elected to spend several hours in his company, smoking methyl amphetamine.
There was a suggestion in the evidence that you may have been familiar with the Chilcotts Road property because of a prior attendance there, perhaps for the purpose of canvassing the property, during which you had dropped your wallet. Your wallet was found during the search which occurred following Mr Jupp’s death. Your explanation for the presence of your wallet was that you had been in the area one to two weeks earlier with a friend, looking at same cannabis plants. I cannot be satisfied beyond reasonable doubt that you had previously attended at the Chilcotts Road property and had familiarity with it. Nevertheless I am satisfied beyond reasonable doubt that by the time you entered the property you knew the purpose of the trip was to steal firearms. You drove the motor vehicle. On the way you turned your mobile phone off, placed one glove on and placed a face mask on. When you got to Lot 2, Chilcotts Road the gate was locked. Entry to the property was forced. I am satisfied that by this point, at the very least, although I strongly suspect earlier, you well knew that you were entering unlawfully for the purposes of stealing firearms.
You said in your evidence that when you pulled up to the gate, you thought “things were a little bit suss”. Again, to my mind, this is indicative of your endeavour in your evidence to downplay your understanding of what was occurring and your involvement in the matter generally. It puts an incredible strain on common sense to suggest that after donning a glove and mask, turning your phone off and forcing entry to a locked gate that your honest state of mind was that “things were a little bit suss”. You then reversed the vehicle into the property to enable the stolen property to be loaded into the boot before making an easy exit. You parked the vehicle in front of a caravan and annexe structure. The evidence establishes the wood fire was burning in the caravan. There was a car parked immediately adjacent to the caravan. It must have been obvious at this point, before anyone exited the vehicle, that the property was occupied.
One of your co-accused, Mr Pyke, exited the vehicle and entered the caravan by breaking the front glass sliding door. You heard the glass smash. Mr Jupp was in the caravan. He fled the caravan. He ran up the driveway presumably in an endeavour to run from the property and obtain assistance. He was chased by at least Mr Baddeley, and most likely also Mr Pyke. You remained in the car at this point. You saw Mr Jupp running, being chased by Mr Baddeley. I am satisfied that at this point, at the top of the driveway area where the evidence established blood pooling consistent with Mr Jupp’s DNA, Mr Jupp was assaulted. I cannot be satisfied beyond reasonable doubt that you observed this assault, but given the proximity of where your vehicle was parked to the top of the driveway, and the relatively small area in which all of this occurred, I am satisfied beyond reasonable doubt that you must have heard the assault occurring.
Mr Pyke returned to the shipping container. Ms Coleman and Mr Baddeley tied Mr Jupp up with an electrical cord and proceeded to drag him back down the driveway to an area adjacent to an animal shelter, which was not very far from the entrance to the shipping container. At around this point, you exited the motor vehicle and entered the shipping container with the intention of assisting in the theft of the firearms. You used a battering ram to try and force entry to a firearms safe which was within the shipping container. You were persistent in your endeavours, striking the firearms safe some 20-30 times before you were successful in breaking it open. I am satisfied that at some point whilst you were endeavouring to force entry to the firearms safe, you approached Mr Jupp and demanded he tell you where the keys to the firearms safe were. My satisfaction as to this arises from evidence that was given on the trial from a recording that was made on the phone of Phoebe Leicester, on 25 January 2022. You did not know that recording was being made. You can be heard on that recording admitting that you made a comment to Mr Jupp demanding he tell you where the keys to the firearms safe were. It was suggested on your behalf that, even if you had made such a statement, it is not proof that you were in close proximity to Mr Jupp. I reject this assertion. It tests credulity to suggest that you would make such a demand from a distance. I am satisfied beyond reasonable doubt that whilst Mr Jupp was tied up, injured and bloodied near the animal shelter, you approached him and made this demand. You were well aware of his condition therefore. You did nothing to assist him.
The persistent endeavours in gaining entry to the safe is indicative that you were very much a part of the shared common intention to steal the firearms. I am satisfied the intention you shared with your co-accused extended to an understanding that violence would be used to overcome any resistance offered from Mr Jupp to the stealing of the firearms, and I will sentence you on the basis that you were a party to this common purpose in respect to the crime of aggravated armed robbery. I am not satisfied beyond reasonable doubt that you abetted the crime of armed robbery.
I am satisfied the violence offered to Mr Jupp in the commission of the aggravated armed robbery included assaulting him by inflicting blunt force trauma generally to his body, tying him up around his neck and legs and dragging him. It left him injured, bloodied and in pain. Given the verdicts, the jury were obviously not satisfied beyond reasonable doubt that you shared a common intention with the others that extended to the use of a more serious level of violence, such that the crime of murder or manslaughter was of a nature that it was a probable consequence. I will therefore not take into account in sentencing you the violence inflicted upon Mr Jupp which involved kicking and/or stomping him and which caused the many rib fractures and the perforated lung, or the strikes to the head area with weapons.
After entry to the firearms safe had been gained, you returned to the car before assisting with loading stolen items into the vehicle and driving away from the property. In addition to the firearms, televisions, tools and a CCTV camera were also stolen from the property. Some of this property was recovered. The firearms have not been recovered. There is no evidence from which I could conclude you received any financial benefit from the theft of these items. That evening you went to Mr Pyke’s residence for a period of time before returning to the home of Ms Leicester. The following morning Mr Pyke arrived at Ms Leicesters’ home and asked for your assistance. You had Ms Leicester tell him you could not go anywhere. Later in the day, you received another request from Mr Pyke to assist in moving the vehicle that had been driven out to Chilcotts Road. This time you agreed to assist, even though you could have again requested Ms Leicester provide you with an excuse. The fact you assisted is a further indication, in my view, that your fear of Mr Pyke was not as pronounced as you claimed in your evidence.
In my view, the overall tenor of your evidence was to exaggerate your fear of Mr Pyke and downplay your knowledge of what occurred at the property. You claimed to see no violence inflicted upon Mr Jupp by any person. At its highest, you suggested you observed Mr Baddeley standing with his foot on Mr Jupp, leaning on a shovel, with Ms Coleman in close proximity. You did not give any evidence of seeing Mr Pyke inflict any violence upon Mr Jupp. Again, given the relatively small area in which all of these events occurred, and the fact you were, by your own account, at the property for about 20 minutes, I consider that you were not entirely truthful in your account of what occurred during your evidence. This speaks not only to your moral culpability, and the need for specific deterrence, but is also relevant to my assessment of what mitigatory value your offer of co-operation should attract. I shall return to that issue.
You are 30 years of age. You were raised in a close and supportive family. You successfully completed your education through to the end of Year 12. You did well at school, undertaking roles as both a peer leader and a sports leader. You obtained employment in the banking industry, before moving into other industries. You obtained a security guard’s licence and a maritime security guard licence and went on to work at both the Devonport airport and as a stevedore, contracted to the Spirt of Tasmania. It is apparent from the fact that you were able to obtain licences of this nature that you were, at that point in time, considered to be of good character.
I am told you supplemented your income by also working as a DJ at a nightclub. Whilst working in this role, you were introduced to methyl amphetamine. You began using this substance when you were aged 24 and very quickly developed an addiction. It changed your life markedly. You struggled to maintain your employment as a stevedore. You, in fact, told your employer of your drug addiction and they endeavoured to obtain you some help but ultimately it became too much and you resigned. Your drug addiction worsened. You sold all of the assets which you had purchased during your years of employment in order to support your drug habit.
It seems at the time these crimes occurred, your drug addiction was significant. You were spending up to $200 per day on the substance. Given this, it is an inference readily drawn that your motivation for participating in these crimes was to obtain money or items for drugs.
You are the father to three children. As at the time you went into custody, you were having regular contact with your eldest child. You have continued to communicate with that child since being remanded in custody. You have two children to your relationship with Ms Leicester. One of those children was born whilst you have been in custody.
By way of prior convictions, you have a number of prior convictions for matters of dishonesty, bail offences and offences contrary to the Misuse of Drugs Act consistent with your drug addiction. You have no prior convictions for crimes or offences of violence.
You have indicated you are prepared to give evidence in the trials against Mr Pyke and Mr Baddeley. As I have noted, in my assessment, the account you have given to date as to what happened at Chilcotts Road is a rather contrived one. Nevertheless, the State accept that your evidence is of value in their prosecution of the cases against Mr Baddeley in particular, and to some extent, Mr Pyke. You made some observations of Mr Baddeley’s appearance when he entered the vehicle immediately prior to leaving Chilcotts Road, which may be of value, and you also said in your record of interview with police that Mr Baddeley made some comments about Mr Jupp as you were driving away from Chilcotts Road that may be of assistance in the prosecution. I will therefore sentence on the basis that your co-operation in the giving of evidence does has some value which should be acknowledged in the sentencing process. I will discount the sentence I would otherwise impose upon you by 15 percent in anticipation of you giving evidence in the trials of Mr Baddeley and Mr Pyke. Of course, if you fail to do so, an appeal court may adjust your sentence accordingly.
I take into account that you played no role in the infliction of actual violence upon Mr Jupp, but I am satisfied that you were an active participant in the plan to go to Chilcotts Road and steal firearms and you were instrumental in breaking open the firearm safe. I am satisfied that your motivation for participating in this plan was the desire to obtain money and/or items for drugs. Whilst I accept that your history with Mr Pyke may have impacted to a degree with your preparedness to challenge him, I am certainly not of the view that you were so overborne by fear that you were not making your own independent choices. You and your co-offenders were involved in going together to the home of Mr Jupp in order to steal firearms. Mr Jupp was alone at his isolated residence, when he was confronted by four intruders who were clearly prepared and willing to use violence in order to overcome any resistance he offered to the plan to obtain those firearms. You actively participated in breaking open the safe in order to achieve the purpose. You made demands of Mr Jupp in order to achieve the purpose. It must have been apparent to you that violence was being inflicted upon Mr Jupp. He was vulnerable, he was injured and he was in pain. You did nothing to try and limit the violence being inflicted upon him. You did nothing to try and help him. It must have been a terribly frightening and horrific ordeal for Mr Jupp. The thought of Mr Jupp suffering as he did, with no-one having the decency to intervene, has understandably been a very difficult thing for his family to comprehend. This criminal behaviour was truly appalling and having had the benefit of seeing and hearing you give evidence about the events of this day, I am firmly of the view that you have limited insight or understanding into just how terrible your participation in this was. In my assessment you moral culpability for these crimes is high.
Mr Flanigan, it very much needs to be emphasised that these are serious crimes and this sort of criminal behaviour is to be strongly condemned. That, and attempting to deter others from conduct of this nature, are predominant factors in the sentencing process. Such a course of behaviour calls for heavy punishment. I take into account factors that operate in your favour, including the limited role you played, your limited history of violent offending, your promise of co-operation, and the fact that it does appear that in the past you have been a person of good character, and perhaps may achieve that again.
I make the following orders. You are convicted of all matters of which you have been found guilty. I impose one sentence. You are sentenced to five years’ imprisonment commencing 23 February 2022. The minimum period of time I think you should serve for these crimes is two years and nine months and I order that you not be eligible for parole until you have served that period. I make a compensation order in favour of the Estate of Dean Jupp for an amount to be assessed and adjourn the hearing of that to a date to be fixed. I note I do not consider it appropriate to impose a disqualification period, even though a motor vehicle was used in the commission of these crimes. To my mind, that will simply impose an unjustified barrier to the defendant’s successful rehabilitation upon his eventual release.