Flavell v R
[2011] NZCA 361
•3 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA108/2011 [2011] NZCA 361 |
| BETWEEN FABIAN REGINALD FLAVELL |
| AND THE QUEEN |
| Hearing: 20 June 2011 |
| Court: O'Regan P, Chambers and Arnold JJ |
| Counsel: C Muston for Appellant |
| Judgment: 3 August 2011 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentences imposed in the District Court are quashed and replaced with sentences of imprisonment for three years and six months on each charge, such terms to be served concurrently.
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REASONS OF THE COURT
(Given by O’Regan P)
Introduction
After a jury trial, Mr Flavell was convicted of:
(a)One count of wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961. This related to his stabbing the victim with a broken bottle.
(b)One count of injuring with intent to cause grievous bodily harm under s 189(1) of the Crimes Act 1961. This involved the striking of the victim on the head with a baseball bat.
He was acquitted on a third charge of assault with a weapon. The trial Judge, Judge Callander sentenced him to imprisonment for four years and nine months on each count, with those sentences to be served concurrently.
Mr Flavell now appeals against that sentence on the basis that it is manifestly excessive.
Hessell v R
We heard this appeal at the same time as we heard R v Clifford[1] and we are issuing judgment in that appeal at the same time as the present judgment. The two appeals were heard together because in relation to both we sought submissions from counsel on the impact of the Supreme Court decision in Hessell v R[2] on other guideline judgments issued by this Court. We express our gratitude to counsel in the present appeal, Mr Muston and Mr Mander, for their assistance in that regard. Our comments on the issues relating to Hessell v R are set out in our judgment in
R v Clifford and we do not repeat them here.
Issues on appeal
[1] R v Clifford [2011] NZCA 360.
[2]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607. The decision of this Court that was under appeal was R v Hessell [2010] NZCA 450, [2010] 2 NZLR 298.
Counsel for Mr Flavell, Mr Muston, argued that the sentencing Judge had misapplied this Court’s guideline judgment in relation to offending of this kind, R v Taueki.[3] He said that the Judge had wrongly categorised the offending as offences involving extreme violence. He also argued the Judge had failed to factor into his analysis the fact that the incident during which the assaults occurred was initiated by the victim and involved elements of provocation and excessive self defence, which reduced the culpability of Mr Flavell. Mr Muston said the Judge had given insufficient weight to Mr Flavell’s relative youth and his obvious sporting potential, and given insufficient allowance for the 11 months which Mr Flavell had spent on electronically monitored e-bail (e-bail). He argued that, when considered against sentences given in manslaughter cases, the present sentence was manifestly excessive.
[3] R v Taueki [2005] 3 NZLR 372 (CA).
Before addressing those points, we will briefly set out the factual background and the Judge’s sentencing approach.
Facts
The incident in which the offences occurred happened within a period of about two minutes just before 11 pm on 18 March 2009 at a service station in Whangarei. Mr Flavell was the front seat passenger in a motor vehicle which was driven into the service station. There were four occupants in the motor vehicle. The victim was also at the service station. The victim’s brother and uncle were with him.
The first count arose from Mr Flavell stabbing the victim with a broken bottle. After the motor vehicle in which he was a passenger had been driven into the service station, Mr Flavell had gone into the service station shop. It appears the other occupants of the motor vehicle started yelling something at the victim, and this made the victim angry. The victim approached the motor vehicle and an argument began. One of the other occupants of the motor vehicle, an associate of Mr Flavell, got out of the motor vehicle. He was holding a beer bottle. As he moved towards the victim’s brother, the victim karate-kicked him in the stomach. The victim and Mr Flavell’s associate then started punching each other. By this stage Mr Flavell had returned to the car and grabbed a beer bottle. He said that he was scared for his associate. He broke the beer bottle and he and his associate, who had also broken his beer bottle, approached the victim. The victim was stabbed in the resulting scuffle and received cuts to his back which required stapling in hospital, but did not cause any permanent functional injury.
The victim then went back to his car and retrieved a large diving knife. The victim’s uncle tried to restrain him from returning to the fray without success. In the meantime Mr Flavell and his associate retrieved baseball bats from the boot of their car. The victim’s uncle tried to prevent a confrontation between the victim and Mr Flavell and his associate, again without success. In the fracas that followed the victim’s uncle was hit on the hand by a baseball bat. This gave rise to the charge of assault with a weapon, of which Mr Flavell was acquitted. In addition, the victim was hit on the head twice with a baseball bat, and at least one of these blows was delivered by Mr Flavell. This gave rise to the charge of injuring with intent to injure.
Mr Flavell and his associate then went back to their car and left the service station. His associate was not identified and therefore not charged.
Mr Flavell’s defence was defence of another. The Judge commented about that:
[28] I accept what Mr Muston says in terms of the issue of self defence or more probably, defence of another. People are entitled to not only defend themselves in the circumstances as they see them, but also to come to the defence of others, and you appeared certainly to me as an observer at the trial, to be coming to the assistance of your [associate]. Again, things become convoluted and blurred as the result of the speed at which they happened. I believe the jury clearly saw that as an element, but quite properly rejected self [defence] or rejected defence of another, for the obvious reason that it went too far.
[29] You are entitled to use reasonable force to defend another. You are not entitled to break a bottle and stab somebody with it, and you are not entitled to hit people with baseball bats, because the obvious gravity of those actions speaks for themselves.
[30] The jury in my view quite properly found you to be guilty, because your actions were not reasonable, and the force used was totally unreasonable, in all the circumstances that were presented at trial. Certainly, there was that element, and I think it is proper to take it into account. It was not the case when [the victim] had clean hands. He was acting violently and at one point of course he had a knife. But I am mindful also that he was in fact retreating when you made your attack. I am sure that was another factor the jury bore in mind in reaching the verdict they reached.
District Court sentencing
Judge Callander referred to this Court’s decision in R v Taueki, and noted that the sentencing bands were band one, three – six years, band two, five – ten years and band three, nine – fourteen years.
He approached the issue of which band the offending fell into by looking at both offences on a totality basis.
He then considered a number of the factors identified in R v Taueki as features that would be seen to contribute to the seriousness of the conduct in criminality involved in offending under s 188 or s 189.[4] He considered the following factors:
(a)Serious injury: The Judge said that he did not believe that the injury suffered by the victim got to the point where they could be considered to be serious injuries, and that he therefore did not take this into account as an aggravating factor in the offending.
(b)Extreme violence: The Judge noted that there was disagreement between counsel as to whether the violence involved was extreme violence. He noted the difficulty in piecing together everything that happened and the sequence of events generally, but concluded that he was satisfied that what Mr Flavell had done amounted to extreme violence. However he said that it was not in the gravest of categories when one compared the present offending with other events of a similar type.
(c)Use of weapons: The Judge noted that it was accepted that the use of a broken bottle and of a baseball bat added to the seriousness of the offending.
(d)Attacking the head: The Judge said there was no real argument that the victim had suffered injuries to his head. He said he was satisfied that Mr Flavell did deliver one significant blow to the victim’s head, but he considered that other injuries to the victim’s head may have been inflicted by others (presumably Mr Flavell’s associate).
[4] R v Taueki, at [31].
The Judge concluded that the offending fitted into band two of R v Taueki, because three of the features outlined in R v Taueki as matters contributing to the seriousness of the offending were present in this case. These were extreme violence, use of weapons and attacking the head. He rejected the submission that the offending fitted into band one.
The Judge took a starting point of six years imprisonment. From that he made a deduction of six months to reflect the time that Mr Flavell had spent on
e-bail. He noted that Mr Flavell had spent 11 months on e-bail, though there had been some breaches and difficulties.The Judge also made a further deduction for nine months to reflect Mr Flavell’s youth and his reasonable prior behaviour, though he noted that Mr Flavell had not been “squeaky clean” in terms of offending. The reference to reasonable prior behaviour was presumably a reference to the very positive references which were presented to the Judge at sentencing referring to Mr Flavell’s work record and his sporting prowess. This included a letter from the director of a sports management company which indicated that Mr Flavell’s talent in rugby and rugby league was such that the management company had taken him onto their books and had been optimistic that he had the potential to achieve great things in the Australian professional rugby league competition, the NRL.
Mr Flavell was 17 at the time of the offending. The Judge noted the material which had been placed before him pointing out that young people at the age of 16 or 17 do not think as sensibly or clearly as adults. The Judge said he accepted the fact that Mr Flavell was a man of great potential. The nine months deduction also included some credit for what the Judge accepted was Mr Flavell’s genuine remorse.
Thus the outcome was a starting point of six years imprisonment, a deduction of six months for time spent on e-bail and a further deduction of nine months to reflect the mitigating factors referred to above. This gave an end sentence of four years nine months.
Starting point
As noted earlier, the Judge took a starting point of six years, being a point near the bottom of band 2 of R v Taueki. In R v Taueki, it was stated that this band was appropriate for grievous bodily harm offending featuring two or three of the aggravating factors referred to in that decision. In the present case the Judge thought there were three factors present: extreme violence, use of weapons and attacking the head.
In our view the offending in this case should not have been described as extreme violence. We do not diminish in any way the seriousness of the violence inflicted on the victim, but it must be remembered that the offence itself involved the infliction of a wound and the intention to cause grievous bodily harm. Thus the finding of guilt involves a finding of violence at that level, and the aggravating factor described in R v Taueki[5] is violence above that level of criminality. The Court in Taueki referred to violent conduct that was prolonged and violence that was unprovoked or gratuitous. In the present case the whole incident occurred within two minutes. There was obviously some element of provocation and a misguided effort by Mr Flavell to defend his associate, who had been kicked in the stomach by the victim, who had trained in karate.
[5] At [31](a).
We also consider that it was wrong to count the use of weapons and the attacking of the head as separate aggravating factors. Clearly the use of weapons was a significant aggravating factor in this case, but the description of the factor of attacking the head in R v Taueki[6] refers to a severe beating or kicking causing head injuries being treated similarly to offending involving the use of weapons. In the circumstances of this case we do not consider that the single baseball bat blow to the head of the victim attributed to Mr Flavell was of sufficient gravity to be treated as an independent aggravating factor to the mere fact of the use in the assault of a baseball bat.
[6] At [31](e).
Mr Muston submitted that the sentencing approach of the Judge did not properly recognise the elements of provocation and excessive self defence which were features of the incident. As we have noted earlier, the Judge specifically dealt with the latter and appeared to accept that this was a case of excessive self defence. In R v Taueki, both provocation and excessive self defence were seen as factors which could lead to lower starting points,[7] and we consider that both of these were important factors in the present case. This was a case of a fight that got out of hand, where there was a degree of fault on both sides. In particular, the baseball bat attack happened after the victim retrieved a diving knife from his car and resisted the efforts of his uncle to prevent him from re-engaging in the fight. The original bottle attack happened immediately after Mr Flavell’s associate had been kicked by the victim.
[7] R v Taueki at [32].
In light of all of those factors, we consider that the starting point of six years was higher than was warranted by the circumstances. In our view a starting point no higher than five years was appropriate, putting the offending near the top of band one of R v Taueki.
Personal mitigating factors
We agree with the Judge that an allowance of six months for the time Mr Flavell spent on e-bail was appropriate. Mr Muston argued that the time spent on e-bail was in the region of 11 months, and that an allowance of six months was insufficient. However, given that Mr Flavell was not fully compliant while on e-bail, we do not see any reason to disturb the Judge’s assessment.
The Judge acknowledged that an allowance was properly made for youth (Mr Flavell was 17 at the time of the offending), reasonable prior behaviour and remorse. We agree that the youth factor is significant in this case, and we also agree that there are genuine signs of remorse. We consider that it would have been appropriate to give greater recognition to the efforts at rehabilitation made by Mr Flavell, which were a feature of the letters of support written on his behalf. It is clear that Mr Flavell is an extremely talented sportsman with potential to carve out a worthwhile career. There appears to be genuine signs that this potential could be realised if he is provided with the opportunity to do so. As this Court noted in R v K (CA345/02), the gravity of a young offender’s offending has necessarily to be balanced against the need to consider his or her rehabilitation and reintegration into society.[8]
[8] R v K (CA345/02) (2003) 20 CRNZ 62 at [22].
In the circumstances, we consider that an allowance of approximately 20 per cent for the combination of these factors is appropriate. In round terms that produces a sentence of three years, six months imprisonment.
Result
We allow the appeal, quash the sentence imposed in the District Court and replace it with a sentence of three years, six months on each of the counts, those sentences to be served concurrently.
POSTSCRIPT
Mr Muston cited to us a number of sentences for manslaughter and suggested they indicated that the sentence in this case was too high. We did not find that helpful. In our view, the most effective way to monitor sentencing levels for cases involving grievous bodily harm is to apply the guidance given by this Court in
R v Taueki. That is what we have done in this case.
Solicitors:
Crown Law Office, Wellington for Respondent
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