R v Flavell HC Rot CRI 2006-063-1405

[2008] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-063-1405

THE QUEEN

v

PETER DAVID FLAVELL

Counsel:         A J Gordon for Crown

P G Mabey QC for prisoner

Judgment:      16 May 2008

SENTENCING NOTES OF MACKENZIE J

[1]      Peter David Flavell you appear for sentence on one count of possession of methamphetamine for supply, one  count of possession of a military style semi- automatic weapon and two counts of receiving.  You were found guilty by a jury at your trial.

[2]      The facts are that the police executed a search warrant on your home address. You were located in the garage.  On a bench next to you was a back pack containing your wallet and identification, $3,890 in cash, a set of electronic scales with methamphetamine residue, two methamphetamine pipes, and a container with 20 unused point bags and three further bags containing a total of 17.57 grams of methamphetamine.   Located in the house was a semi-automatic firearm for which you did not hold the appropriate form of licence.  Located in your house was a 26

inch Sony LCD television valued at $2,500, and on the back lawn a covered luggage

R V FLAVELL HC ROT CRI 2006-063-1405  16 May 2008

trailer valued at $7,000.  Efforts to hide the identifying features of the trailer were in process.

[3]      Your explanations in respect of all of these items were not accepted by the jury, as is inherent in their verdict.  As far as the methamphetamine is concerned, the jury did  not  accept  the  evidence  called  at  your  trial  to  the  effect  that  the  bag containing  the  methamphetamine  and  related  items  had  been  left  there  by  an associate.

[4]      As to your personal circumstances you are 40 years of age.  You separated from your wife some five years ago and are now in a new relationship.  Your partner supports you and describes you as a good person and father.  You have strong family and whanau support as is evident from the testimonials which have been produced on your behalf and which I have read, and the level of support is indicated by the comments on your behalf which Mr Crean has made in support of your family this morning.  You have no previous convictions of a serious nature, the only blemishes on your record are minor matters involving, in particular, unlawful hunting.  You are assessed by the probation officer as being of low risk of re-offending.

[5]      I deal first with the count of possession of methamphetamine for supply.  I must first assess where that falls within the guideline judgment of the Court of Appeal in R v Fatu [2006] 2 NZLR 72. That sets out a number of bands for methamphetamine offending. The quantity of methamphetamine found here places you towards the bottom of band 2. Both counsel agree that that is the appropriate band.

[6]      Band 2 carries a range of potential starting points of three to nine years.  In fixing a starting point, I must have regard to where you fall in the band, and also to any aggravating and mitigating features of the offending itself.   As I have said I regard you as falling towards the bottom of band 2.  Counsel for the Crown in her written submissions submits that there a number of aggravating features, but most of those I regard as being inherent in the nature of the offending rather than aggravating features   in   themselves   and   counsel   in   her   submissions   this   morning   has acknowledged that.  I do not consider that there are any mitigating features of the

offending itself, as opposed to personal mitigating factors.  Counsel for the Crown submits that an appropriate starting point would be in the range of four to five years. Your counsel submits that an appropriate starting point would be in the range of three to four years.  The assessment of where, in that range, the starting point will be involves inevitably an element of sentencing discretion as your counsel has acknowledged.   Your counsel has referred to a number of other cases which are comparable and I have taken those into account along with other cases of which I am aware  without  referring  to  those  in  any  detail.    I  consider,  making  the  best assessment that I am able, that the appropriate starting point is three and a half years.

[7]      Before coming to the other offences  I propose to deal with the personal factors which may require an adjustment to that starting point in respect of the methamphetamine offence in itself.  There are no personal aggravating factors.  As to mitigating factors, you are essentially a first offender.   And you are clearly of good character.  You have fallen from grace in this way by the company that you have fallen in with in recent times.   It is clear the family and whanau, and family environment, which you have is such that that can be seen as an aberration on your part.   Your counsel has supplied a number of references which I have taken into account.  Your counsel submits that you are remorseful, and the extent of that may be,  to  some  extent,  questionable  given  the  comments  which  you  made  to  the probation officer.  Whether your remorse relates more particularly to the situation in which you find yourself rather than for the offending itself, and whether you have fully  accepted  responsibility  for  that  may  be  open  to  question.    I  do  however consider that it is appropriate to make some allowance from the starting point to reflect the fact that this is the first time that you have been before the Court for conduct of this kind, and to give you some encouragement to ensure that it is the last. The family support which you have demonstrates that there is a realistic prospect that this sentence will serve the purpose of ensuring that you do not appear again.  I consider that it is appropriate to make some downward adjustment to the starting point for that.  On that account I make a deduction of six months from the starting point that I have identified which leaves a final sentence on the methamphetamine offence of three years.

[8]      I must also fix a sentence for the other offences.  I approach that task on the basis   that   that   offending   is   different   from   and   unconnected   with   the methamphetamine offending.  In making that assessment, I have borne in mind that the  presence  of  firearms  is  an  all  too  common  feature  of  methamphetamine offending, and can be a serious aggravating feature.  The circumstances in which the weapon was located, in a locked gun safe which also contained other firearms for which you were licensed, are such that I do not consider that I should make the connection here.   I also bear in mind that the presence of stolen property in conjunction with methamphetamine offending can often be an indication of dealing in methamphetamine in exchange for stolen property.  In your case, I do not consider that the evidence at trial would justify me in making a direct link between these counts and the methamphetamine offending.   For that reason I consider that a cumulative  approach  to  sentencing  is  appropriate.    Your  counsel  submits  that, viewed on a stand alone basis, these three charges, that is the two receiving counts and the firearm charge, would not involve a custodial sentence and counsel for the Crown acknowledges that.   But here, because of the methamphetamine offending, the only practical option is a sentence of imprisonment cumulative on the methamphetamine sentence, but the addition to that sentence should be small.   I would add a further period of two months to reflect the totality of the charges.

[9]      Would you stand now please.

[10]     Mr Flavell you are sentenced as follows:

[11]     On  the  count  of  possession  of  methamphetamine  for  supply  you  are sentenced to imprisonment for a term of three years.

[12]     On each of the other counts you are sentenced to a term of two months imprisonment.  That is to be served cumulatively on the methamphetamine sentence but concurrently with each other.

[13]     Reparation has been sought in respect of the luggage trailer in the sum of

$3,651.   Given that the sentence for that count must be a custodial one and must

follow your custodial sentence on the methamphetamine offending, I accept that that would be unrealistic and I do not make an order for reparation.

[14]     Forfeiture of all of the drug items and of the cash found, and of the firearm, is also sought and there will be orders for forfeiture of all of those items.

[15]     You may stand down.

“A D MacKenzie J”

Solicitors:           Gordon Pilditch, Crown Office, Rotorua

P G Mabey, QC, Tauranga