The Queen v Flighty - [2009] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND
CA457/2008
[2009] NZCA 173
THE QUEEN
v
MARK ROBERT FLIGHTY
Hearing:29 April 2009

Court:Robertson, Chisholm and Gendall JJ
Counsel:R A B Barnsdale for Appellant

F E Guy Kidd for Crown

Judgment:7 May 2009 at 9.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Following trial in the District Court at Hamilton Mr Flighty was convicted of intimidation, assault with a weapon, wounding with intent to cause grievous bodily harm, and two counts of intentional damage. Given that Mr Flighty had a previous conviction for manslaughter, the District Court referred sentencing to the High Court. On 25 June 2008 Lang J sentenced Mr Flighty to preventive detention and ordered him to serve a minimum of six years’ imprisonment.
[2]       Although Mr Flighty originally appealed against both conviction and sentence, he subsequently abandoned the appeal against conviction. He appeals against sentence on the grounds that the sentence of preventive detention was wrong in principle and inappropriate. There is no appeal against the minimum non-parole period.
Background
[3]       On 14 March 2007 there was an intimidating telephone call from Mr Flighty to Alan George. Mr Flighty had worked with Mr George’s son, Adam, who had been in a relationship with Mr Flighty’s former partner. From the telephone call it was apparent to Mr George that Mr Flighty was upset about something that Adam had done. During the call Mr Flighty said that he was going to come and smash windows, kill Alan George’s dog and assault his partner. The charge of intimidation arises from this telephone call.
[4]       Alan George told his son about the call.
[5]       The following day Adam George was at his home when he heard banging outside and a voice, which he recognised as Mr Flighty’s, saying “Get outside motherfucker”. Then he heard Mr Flighty trying to kick in his front door. One of the charges of intentional damage arises from the damage to the front door.
[6]       Adam George armed himself with a cane stick approximately one and a half metres long and went outside. He saw Mr Flighty standing in the middle of the driveway. According to Mr George’s evidence at trial, Mr Flighty pulled out, and opened, a flick knife which had a blade about six inches long, saying “Come on boy, come on”. Mr George then embarked on a pre-emptive strike, hitting Mr Flighty twice on the head and once on the hand with the stick. These events gave rise to the charge of assault with a weapon.
[7]       Because he thought he was going to be stabbed by Mr Flighty, Mr George then ran up the driveway and on to the road. He was pursued by Mr Flighty who caught him after about 20 metres and stabbed him in the back. The charge of wounding with intent to cause grievous bodily harm arises from the stabbing.
[8]       Following the stabbing Mr George was…

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 The Queen v Flighty

Details

AGLC: The Queen v Flighty [2009] NZCA 173
Case: [2009] NZCA 173
Decision Date: 7 May 2009

CaseChat Overview and Summary

The appeal in The Queen v Flighty involved the appellant, Mark Robert Flighty, who was convicted of multiple charges including intimidation, assault with a weapon, wounding with intent to cause grievous bodily harm, and intentional damage. The District Court had referred sentencing to the High Court due to Mr Flighty's previous conviction for manslaughter. The appeal was against the sentence of preventive detention imposed by Lang J, which mandated a minimum of six years' imprisonment. Mr Flighty argued that the preventive detention was inappropriate and that a finite sentence of 12 years would have been more suitable. The court considered whether the preventive detention was wrong in principle and whether a finite sentence would provide adequate protection for society.

The court found that Lang J had appropriately assessed the mandatory considerations under s 87(4) of the Sentencing Act 2002, including the principle that a lengthy determinate sentence is preferable. The court concluded that preventive detention was necessary to ensure Mr Flighty's rehabilitation and to protect the public, as he had a history of violent offending and lacked insight into the causes of his behavior. The appeal was dismissed, and the sentence of preventive detention was upheld.

The court determined that a finite sentence would not provide sufficient motivation for Mr Flighty to engage in therapeutic treatment. The court also rejected the argument that an Extended Supervision Order could address the deficiencies of a finite sentence, as such orders are not applicable to offenses of this nature. The court held that the sentencing notes from the previous manslaughter conviction did not alter the current sentencing approach. The appeal against the sentence was dismissed, and the original sentence of preventive detention was upheld.

Orders