Flavell v The Queen
[2021] NZHC 2148
•18 August 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-86
[2021] NZHC 2148
BETWEEN RAYMOND FLAVELL
Appellant
AND
THE QUEEN
Respondent
Hearing: 17 August 2021
(Heard at HAMILTON)
Appearances:
F Wood for Appellant
S J Bird for Respondent
Judgment:
18 August 2021
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 18 August 2021 at 10 am.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
FLAVELL v R [2021] NZHC 2148 [18 August 2021]
[1] Mr Flavell pleaded guilty in the District Court to charges of assault with a weapon, assault with intent to injure and wounding with intent to injure. On 4 June 2021 Judge M A MacKenzie sentenced him to three years one month and two weeks imprisonment.1 Mr Flavell appeals against sentence on the basis that errors in the Judge’s sentencing approach led to a sentence that was manifestly excessive.
Background
[2] The charges related to two separate incidents, one occurring in May 2017 and the other occurring on 10 February 2020.
[3] On 24 May 2017 Mr Flavell and the complainant, his partner, were at home. Mr Flavell’s partner was asleep on a bed in the lounge with their son, who was three years of age at the time. Mr Flavell came into the lounge and demanded his dinner. His partner told him it was in the microwave. Mr Flavell then grabbed the plate of food, returned to the lounge and stood over his partner. For no apparent reason he slammed the plate of food into her forehead with sufficient force to cause a gash.
[4] Mr Flavell’s partner immediately left the address with their son and took refuge at a neighbour’s address down the road. The ambulance attended the scene and advised her to go to hospital to have the wound stitched or glued back together. She also suffered bruising around the gash.
[5] When the police spoke to Mr Flavell he said that he did not know how his partner had received the injury in 2017 as he was not present at the time. This incident gave rise to the charge of assault with a weapon.
[6] The second incident occurred on the evening of 10 February 2020. On this occasion Mr Flavell was driving towards Tauranga accompanied by his partner and their son, who by this stage was five years of age. During the journey Mr Flavell parked the vehicle in a cemetery in a remote location and began accusing his partner of being unfaithful to him. He forced her from the vehicle and began punching her about the head and body with his fist. This caused his partner to fall to the ground.
1 R v Flavell [2021] NZDC 10956.
Mr Flavell then began kicking her about the body. This occurred four or five times and gave rise to the charge of assault with intent to injure.
[7] Mr Flavell then returned to the vehicle and removed a wheel brace from the boot. He then began to strike his partner on the head, body and legs with the wheel brace. Whilst doing so he continued to kick her about the body. This caused his partner to lose consciousness.
[8] A person in a neighbouring address heard Mr Flavell’s partner screaming and called the police at 2.18 am. The neighbour heard the screaming continue until
2.27 am, when it abruptly ceased. This occurred when Mr Flavell dragged his partner back to the vehicle in an unconscious state. Whilst she was being dragged to the vehicle his partner regained consciousness. Mr Flavell then placed her on the back seat of the vehicle. He was driving away from the scene when the police arrived and apprehended him. This offending caused Mr Flavell’s partner to have a laceration to the top left side of her skull. She also suffered bruising and grazes over her face, head and body, as well as extensive bruising and swelling to her legs.
[9] A victim impact statement prepared immediately after the incident in February 2020 stated that Mr Flavell’s partner was extremely frightened and fearful. She believed she was going to die during the incident and was frightened not just for herself but for her young son. She was clearly badly affected by the incident.
The sentence
[10] The Judge took the lead charge as being that of wounding with intent to injure. This related to the incident that occurred in February 2020. This had several aggravating factors. It involved the use of a weapon in the form of a wheel brace. It also involved attacks to the head that occurred during a prolonged incident of violence. The attack caused physical injuries to the victim, although not necessarily life threatening or long-lasting, and also significant emotional harm.
[11] A further aggravating feature was that the attack occurred in the presence of the parties’ child, who at five years of age witnessed his father attacking his mother. This created the risk that the child would suffer psychological harm in years to come.
[12] Finally, Mr Flavell’s partner was vulnerable in the sense that she was attacked by her partner when she ought to have been safe in his presence. The assault also took place in a remote location where she had little opportunity to escape and, once she had been knocked to the ground, she was in no position to defend herself. Having regard to those factors the Judge considered that the offending fell within the bottom of band 3 identified by the Court of Appeal in Nuku v R.2 She selected a global starting point for the two charges relating to the February 2020 incident of three years three months imprisonment.
[13] Aggravating features in relation to the incident that occurred in May 2017 included an attack to the head, albeit impulsive, the resulting injury and the fact that Mr Flavell’s partner ought to have been entitled to feel safe in her own home. In addition, the parties’ son was again present during this offending and observed his father attacking his mother. At that stage the child was three years of age.
[14] The Judge placed this offending towards the bottom of band 2 identified in Nuku. She considered that, on a standalone basis, the charge of assault with a weapon justified a starting point of between 12 and 16 months imprisonment. Having regard to totality principles, however, she applied an uplift of nine months to reflect the 2017 incident. This resulted in a sentence of four years imprisonment before taking into account aggravating and mitigating factors personal to Mr Flavell.
[15] Mr Flavell has several previous convictions for offending involving violence, one of which related to violence against his partner. The Judge increased the sentence by two months to reflect this factor.
[16] In terms of mitigating factors, the Judge noted that the issue of remorse was not easy to assess. The pre-sentence report and a report prepared under s 27 of the Sentencing Act 2002 both stated that Mr Flavell was remorseful. He had also written the Judge a letter expressing remorse and saying he was prepared to work on the factors that triggered his offending. In addition, Mr Flavell had also indicated a willingness to attend a restorative justice conference. The Judge also noted, however, that there were suggestions Mr Flavell had attempted to minimise his role in relation
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
to the incident that occurred in 2020. Notwithstanding this reservation the Judge considered that credit was available to Mr Flavell for the remorse he had shown.
[17] The Judge also accepted that there were prospects that Mr Flavell could be rehabilitated. These were addressed both in the pre-sentence report and the s 27 report. The Judge considered Mr Flavell was entitled to credit to reflect the fact that he expressed a clear desire to rehabilitate himself.
[18] The Judge then set out in some detail the factors identified in the s 27 report. She was concerned, however, that it relied largely on Mr Flavell’s version of events with the only cross-check being discussions the report writer held with his mother. The Judge did not know, however, the extent to which the report writer had discussed Mr Flavell’s narrative with his mother by way of cross-check.
[19] The Judge ultimately concluded there was no nexus between the present offending and the factors identified in the s 27 report. Mr Flavell had candidly told the report writer that the use of methamphetamine and his lifestyle issues had led to the offending. He had also acknowledged to the writer of the pre-sentence report that he had consumed both methamphetamine and alcohol during the period leading up to the assault. The Judge considered the immediate causative factors in the offending were likely to be the consumption of both methamphetamine and alcohol.
[20] On a global basis the Judge considered that a credit of ten per cent was available to Mr Flavell to reflect the factors identified in the two reports relating to difficulties in Mr Flavell’s upbringing, together with the remorse he had shown and his prospects of rehabilitation.
[21] Mr Flavell had entered his guilty pleas on the morning his trial was due to commence. The Judge said this would normally result in a discount of no more than ten per cent. In the present case, however, the Judge acknowledged that Mr Flavell’s partner was saved the indignity of having to give evidence. In addition, the Crown had significantly reduced the seriousness of the lead charge. She therefore applied a discount of 15 per cent to reflect guilty pleas. The sentence of four years two months imprisonment was therefore reduced by 12 and a half months to reflect the mitigating
factors the Judge identified. This resulted in the end sentence of three years one month and two weeks imprisonment.
Grounds of appeal
[22] On Mr Flavell’s behalf Mr Wood advances two grounds of appeal. First, he contends the Judge failed to provide Mr Flavell with a discrete discount for his genuine remorse. Mr Wood says a discount of at least five per cent ought to have been applied to reflect Mr Flavell’s remorse and rehabilitative efforts. Secondly, he contends the Judge failed to recognise, and give an appropriate discount for, the causal nexus between the present offending and the factors identified in the s 27 report.
Decision
Remorse
[23] It is clear from the Judge’s sentencing remarks that she intended to provide Mr Flavell with a discount for remorse. It is not possible to determine the level of discount she applied, however, because it was included in the ten per cent global discount to reflect mitigating factors other than the guilty pleas.
[24] The extent to which a discount is given for remorse is very much a matter of discretion for the sentencing Judge. In the present case Mr Flavell faced an initial difficulty in that he told the writer of the pre-sentence report the offending with the wheel brace had occurred after his partner had taken the wheel brace from the car and struck him with it. He said he then removed the wheel brace from her and struck her with it. This was obviously contrary to the description of events contained in the agreed summary of facts and the Judge rightly put it to one side. This issue is largely irrelevant in the present context, however, because Mr Wood accepts that a discount of around five per cent was appropriate to reflect both remorse and rehabilitative efforts. I accept this submission.
The s 27 report
[25] As will already be evident, the writer of the s 27 report had interviewed both Mr Flavell and his mother. The writer expressed the view that “removal and separation
of generations of cultural systems while being within [Mr Flavell’s] lineage, is reflected in the intergenerational violence and physical abuse, alcohol and drug abuse and sexual abuse voiced in the narratives given by Mr Flavell and his mother”. Ms Mobberley acknowledges that the report does not differentiate between the information given to the writer of the report by Mr Flavell and that given by his mother. She submits, however, that it is appropriate to view the report as the overall opinion of the report writer having spoken to both Mr Flavell and his mother.
[26] The report referred in detail to shortcomings in Mr Flavell’s upbringing. This included long-term poverty and deprivation, alcohol and drug addiction by other members of his family, mental health issues and limited access to health care. In addition, he was exposed to gang life as well as emotional, physical and sexual abuse. Mr Flavell was also rejected by his father, his paternal uncles and paternal cousins and this had a devastating effect on his sense of self, self-worth and identity. This appears to have stemmed from the fact that Mr Flavell was born with a significant physical disability. This confined him to a wheelchair and prevented him from participating in recreational activities. It also made him the target of bullying from an early age by members of both his Māori and Pākehā peer groups. These factors contributed to Mr Flavell beginning to consume alcohol at the age of 13 years. He then used alcohol and drugs as a coping mechanism for the stress and pain he suffered as a result of these factors in his upbringing.
[27] I do not share the Judge’s concerns about the extent to which the report writer had cross-checked Mr Flavell’s narrative against the information his mother could provide. It is clear that the report writer spoke to both Mr Flavell and his mother. If the Judge had concerns about whether the report writer had undertaken an adequate cross-check she could have directed the report writer to provide a supplementary report addressing that concern. Otherwise I accept Mr Woods’ submission that the Judge needed to proceed on the basis that the report reflected the writer’s discussions with both Mr Flavell and his mother.
[28] Reading the report as a whole, I am satisfied that physical and emotional violence was a hallmark of Mr Flavell’s upbringing. The abuse of alcohol and drugs was likewise a factor in his life from a very early age. The physical and psychological
abuse that he suffered as a child at the hands of his father was sufficient to prompt him to run away from home on several occasions. This led to him living on the streets and stealing food to survive. The Judge clearly accepted these as mitigating factors. However, she did not accept the report writer’s conclusion that there was a causal link between the offending and Mr Flavell’s upbringing.
[29] Like the Judge, I acknowledge that the consumption of both methamphetamine and alcohol are likely to have been the immediate drivers of the present offending. However, I do not consider the issues identified in the s 27 report can be wholly divorced from the incidents giving rise to the present charges. I consider the negative aspects of his childhood and adolescence are likely to have shaped the person he has become as an adult. I see no basis on which to differ from the report writer’s conclusion that there is a link between the offending and the factors identified in the report. Part of the explanation for apparently irrational acts of violence by Mr Flavell is likely to lie in the fact that he was exposed to similar conduct by those around him from a very early age.
[30] Mr Bird submitted that in considering whether to apply a further discount I should bear in mind the fact that Mr Flavell was fortunate to receive any discount for remorse and that the discount of 15 per cent to reflect guilty pleas could be regarded as generous. I do not accept this submission because I consider the Judge was entitled to apply these discounts, and for the reasons she gave.
[31] I do not, however, accept Mr Wood’s submission that the factors identified in the s 27 report justify a discount as high as 20 per cent. I consider they should be marked by a deduction of six months, or twelve per cent. This means Mr Flavell is entitled to a discount of seven and a half months (15 per cent) to reflect his guilty pleas, six months (12 per cent) to reflect factors identified in the s 27 report and two and a half months (five per cent) to reflect remorse and rehabilitative efforts.
[32] Applying a total discount of 16 months to the sentence of four years two months imprisonment results in an end sentence of two years ten months imprisonment.
Result
[33] The appeal against sentence is allowed. The sentence imposed on the lead charge of wounding with intent to injure is quashed. In its place I impose a sentence of two years ten months imprisonment. The concurrent sentences imposed on the remaining two charges remain intact.
Lang J
0