Flavell v The King - [2024] NZCA 317

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA50/2024
[2024] NZCA 317

BETWEEN	PETER DAVID FLAVELL Appellant
AND	THE KING Respondent

Hearing:	25 June 2024
Court:	Palmer, Brewer and Downs JJ
Counsel:	R B Keam and R B C Ismail for Appellant M J R Blaschke for Respondent
Judgment:	15 July 2024 at 11am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

The appeal

Peter Flavell pleaded guilty shortly before trial to five charges of dealing with the Class A controlled drug, methamphetamine.[1] He was sentenced to five years and nine months’ imprisonment.[2] Mr Flavell appeals his sentence on the grounds the starting point was too high and an inadequate discount was given for his guilty pleas.
[1]Four charges of possession for supply, and one charge of supply, contrary to the Misuse of Drugs Act 1975, s 6(1) and (2).
[2]R v Flavell [2023] NZDC 28744 [Judgment under appeal].
We must allow the appeals if there is an error in the sentence and a different sentence should be imposed,[3] or in short, if the sentence is manifestly excessive.[4]

Background

[3]Criminal Procedure Act 2011, s 250.

[4]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

Mr Flavell is or was a member of the Mongrel Mob.[5] In 2020, Mr Flavell became involved with a network of dealers connected to Paul Cassidy, a Killer Beez gang member, who led the distribution of methamphetamine throughout the Bay of Plenty.
[5]The cultural report says Mr Flavell relinquished his gang patch after the offending.
Between 12 February and 17 April 2020, Mr Flavell purchased 826 grams of methamphetamine from Mr Cassidy in ounce and half-ounce quantities. Sometimes, Mr Flavell made multiple purchases from Mr Cassidy on the same day. Mr Flavell on‑sold the drug to purchasers in his own network.[6] Covid-19 restrictions were then in force, which Mr Flavell bemoaned for making things “too hot”.
[6]The agreed summary of facts referred to Mr Flavell supplying methamphetamine in relation to this charge, which was framed as a representative charge of possession for supply. Sentencing proceeded on this basis. No issue is taken with this on appeal, presumably because: (a) the underlying evidence established actual supplies of the drug; (b) Mr Flavell agreed with the summary of facts; and (c) the same penalty applies.
Mr Flavell bought a further 42 grams of methamphetamine from Mr Cassidy, which he also supplied to purchasers within his own network.
Charges were laid on 1 April 2021. On 20, 25, and 29 July 2022, hence while on bail, Mr Flavell possessed methamphetamine for supply totalling three grams.
On 21 February 2023, Mr Flavell pleaded guilty to the original charges and those arising on bail. Trial was then three weeks away. Mr Flavell had, earlier that year, unsuccessfully contested the admissibility of much of the evidence against him.[7]
[7]R v Flavell [2023] NZDC 715.
Judge G C Hollister-Jones…

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 The King

Details

AGLC: Flavell v The King [2024] NZCA 317
Case: [2024] NZCA 317
Decision Date: 15 July 2024 at 11am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Peter David Flavell appealed against his sentence for drug-related charges, contending that the starting point was too high and that the discount for his guilty pleas was inadequate. The court dismissed the appeal, finding that the sentence was not manifestly excessive. Flavell had pleaded guilty to five charges of dealing with methamphetamine, which included purchasing and supplying a total of 868 grams of the drug over a period of several weeks. He was sentenced to five years and nine months' imprisonment. The court found that the starting point of 11 years was appropriate, as the amount of methamphetamine involved and the duration of the offending aligned with previous cases. The court also determined that the 10% discount for Flavell's guilty pleas was appropriate, given that the pleas were entered only three weeks before the trial.

Flavell argued that the starting point should have been nine and a half years, citing a previous case where a similar starting point was adopted. However, the court found that the circumstances in Flavell's case were more severe, with a higher quantity of drugs and a longer offending period. Furthermore, Flavell's history of drug-related offending and his membership in a criminal gang were considered in setting the starting point. The court also rejected Flavell's argument that the discount for his guilty pleas should have been higher. The court noted that Flavell's pleas were not entered at the first reasonable opportunity, as he had delayed pleading guilty while challenging the admissibility of the evidence against him. The court found that the discount for the guilty pleas was appropriate, given the late stage at which they were entered. Finally, the court concluded that the sentence was not manifestly excessive, considering the severity of Flavell's offending and his history of drug-related crimes.

Orders