Flavell v R - [2011] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/2011
[2011] NZCA 361

BETWEEN FABIAN REGINALD FLAVELL
Appellant

AND THE QUEEN
Respondent

Hearing: 20 June 2011

Court: O'Regan P, Chambers and Arnold JJ

Counsel: C Muston for Appellant
C L Mander and M H Cooke for Respondent

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flavell v R

Details

AGLC: Flavell v R [2011] NZCA 361
Case: [2011] NZCA 361
Decision Date: 3 August 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Fabian Reginald Flavell appealed against his conviction and sentencing by the District Court. The appeal concerned two counts of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm under the Crimes Act 1961. Flavell argued that the four years and nine months imprisonment sentences imposed by the District Court were manifestly excessive. The central legal issues were whether the trial judge had correctly applied the sentencing guidelines from R v Taueki and adequately considered the mitigating factors, including provocation and self-defence.

The Court of Appeal found that the sentencing judge had misapplied the guidelines from R v Taueki. The Court held that the violence was not extreme as it occurred within two minutes and that the use of weapons and attacking the head should not have been counted as separate aggravating factors. The Court also found that the sentencing judge had not properly recognised the elements of provocation and excessive self-defence. Additionally, the Court found that the judge had failed to adequately recognise Flavell's youth, sporting potential, and efforts at rehabilitation. As a result, the Court reduced the starting point for sentencing and increased the mitigating factors. The Court of Appeal allowed the appeal, quashed the original sentences, and replaced them with sentences of three years and six months on each count, to be served concurrently.

The Court's final orders were that the appeal was allowed, the sentences imposed in the District Court were quashed, and replaced with sentences of imprisonment for three years and six months on each charge, to be served concurrently.

Orders