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 able to attract the attention of the driver of a passing school bus who called the police and an ambulance.  On admission to hospital, Mr George was found to be suffering from a back wound which was three inches deep and an associated gash to his right kidney.  Medical evidence given at trial was to the effect that the injury could have been life threatening if it had been a few millimetres to the left or right and that the injury was “absolutely consistent” with Mr George having been attacked from behind while running away.  The doctor also noted that the cleaving off of a piece of bone indicated that substantial force must have been used. 

[9]       After the stabbing Mr Flighty returned to Mr George’s house and attacked his car.  The second intentional damage count arises from that attack. 

[10]     At trial Mr Flighty advanced the defence of self-defence.  Not surprisingly it was rejected by the jury who found him guilty on all counts. 

The appellant

[11]     When he was sentenced, Mr Flighty was 44 years of age.  The probation officer reported that Mr Flighty’s former employer had no problems with him and that he was regarded by his employer as “trustworthy and reliable”.  However, given his previous record the probation officer considered that there was a high risk of Mr Flighty re-offending. 

[12]     Violence features extensively in Mr Flighty’s lengthy criminal history.  Of the convictions for violence, the 1990 conviction for manslaughter is the most serious.  Mr Flighty had been charged with murder and the jury had returned a verdict of manslaughter.  We have the benefit of the sentencing remarks of Gallen J, who sentenced Mr Flighty to four years seven months’ imprisonment, and a transcript of Mr Flighty’s evidence at trial.  The offending arose out of a dispute between Mr Flighty and the victim which led to a physical fight following which the victim was fatally stabbed by Mr Flighty with a small sword. 

[13]     Apart from that conviction, Mr Flighty has numerous previous convictions for other violence:  common assault (1);  assaulting police (2);  male assaults female (3);  assaulting a child (1);  assault with a weapon (1).  All but two of those offences post-dated the manslaughter conviction.  He was also convicted twice in 2005 for behaving in a threatening manner. 

Health assessors’ reports 

[14]     Pursuant to s 88(1)(b) of the Sentencing Act 2002, reports were provided by a psychologist and a psychiatrist. 

[15]     Ieva Cechaviciute, a registered psychologist, reported that Mr Flighty presented a:

... moderate-high to high risk of serious, and possibly violent, reoffending.  If untreated this risk is likely to remain for at least 5 years and will require reassessment as he progresses through his sentence.  Given Mr Flighty’s lack of responsivity to the rehabilitative efforts in the past and his current lack of motivation, there is little confidence that his risk to the community can be significantly altered through short-term intervention at the present time.  Furthermore, Mr Flighty appears to be relatively non-compliant with various sanctions imposed over the course of his criminal history and these do not appear to have affected his rate of violent offending.  For the risk to be reduced, Mr Flighty will first need to meaningfully engage in rehabilitative efforts, such as learning to manage his anxiety, and attending violence prevention and substance abuse programmes, and to maintain the therapeutic changes over an extended period of time prior to being considered for release. 

[16]     The other report was from Dr Shailesh Kumar, a consultant psychiatrist.  Having indicated that he was unable to provide an expert opinion regarding the likelihood of Mr Flight’s re-offending upon release because psychiatric predictions so far into the future are unreliable, he reported:

The risk factors, in the case of Mr Flighty, that are known to be associated with an increased likelihood of committing a violent act include:  history of previous violence, young age at the first violent incident, unstable relationships, history of substance misuse and prior supervision failure.  It is noteworthy that Mr Flighty has re-offended while on preventative detention (sic) and has not complied with supervision conditions.  Though alcohol and drugs have often been associated with Mr Flighty’s offending behaviour, he does not see his alcohol and drug use as significant problems.  This lack of insight can be seen as increasing his risk of re-offending further.  Finally, Mr Flighty has a history of early mal-adjustment and a large number of arrests as an adult which are also reported as poor prognostic factors regarding risk of committing violent acts in the international scientific literature.

Mr Flighty also presents with certain factors that are associated with reduced risk of committing violent acts which include absence of features suggestive of anti-social personality disorder, and he says that he values his children and family seriously.  Mr Flighty explains his actions around the index offence as his duty to protect his daughter and ex-partner.  It may be possible to use his attitude to his family in a therapeutic context and to motivate him to make changes in his life, although the outcome of such therapeutic interventions remains to be seen. 

[17]     Dr Kumar concluded that Mr Flighty would be placed in the group of offenders with a moderate risk of re-offending. 

Sentencing in the High Court 

[18]     Lang J began by considering the finite term that would be appropriate.  He concluded that the offending fell within band three of R v Taueki [2005] 3 NZLR 372 and that the appropriate starting point for a finite sentence would be ten years’ imprisonment. This reflected a number of aggravating features: very serious violence; premeditation; serious injury to the victim; use of a knife; and home invasion.

[19]     This starting point of ten years was then lifted to twelve years to reflect the previous conviction for manslaughter.  To the extent that both that offending and the current offending involved an attack on the victim who was in the process of leaving the property, Lang J considered that there were similarities between the two events.  He commented that, as a result of the 1990 offending, Mr Flighty must have known the very serious consequences that could follow the stabbing of another person, yet he took a knife with him on this occasion and used it. 

[20]     No mitigating features were identified.  Thus Lang J proceeded on the basis that any finite sentence that would ordinarily be imposed would be for a period of 12 years. 

[21]     Turning to the five mandatory considerations under s 87(4), Lang J concluded that:

·     there was a “worrying and consistent” use of violence between 1981 and 2005 and similarities between the offending in 1990 and the current offending (para (a));

·     offending of this type causes very serious harm to the community (para (b));

·     having regard to his criminal history and the matters contained in the two assessors’ reports, he was left with no doubt that if Mr Flighty was not successfully treated over a lengthy period of time with his full co-operation “it is virtually inevitable, Mr Flighty, that you will commit a serious violence offence on your release” (para (c));

·     the psychologist had reported that Mr Flighty had no insight into his own responsibility for rehabilitation (para (d)); and

·     the principle that a lengthy determinate sentence is preferable if it provided adequate protection for society spoke for itself (para (e)). 

[22]     This assessment led the Judge to the following conclusions:

[59]     … there is little doubt that you are likely to commit another qualifying violent offence if you are released in five, six, or, even seven years, without proper treatment.  As a result, I need to consider whether members of society can be protected otherwise than through the imposition of a sentence of preventive detention.  In the end, I have little difficulty in concluding that such a sentence is the only realistic way in which the interests of society can properly be protected. 

[60]     I accept, Mr Flighty, that at the moment you are currently motivated to rehabilitate yourself and to seek such treatment as may be needed to ensure that you address the root causes of your offending.  I accept also that you appear, recently anyway, to have achieved some insight into the role that alcohol plays both in your life and in relation to your offending. 

[61]     What I do not see in any of the reports is any realistic insight into the kind of triggers that cause you to act in the way that you do.  Neither do you appear to have developed any mechanisms to prevent yourself from resorting to violence once you have determined that a situation needs to be addressed in a particular way.  It is not necessary for me to reach any conclusion as to how this state of affairs has come about.  I rather suspect, however, that your current attitudes were formed many years ago, perhaps during childhood, and that you have continued to act and respond in certain ingrained ways as the pitfalls of life have beset you over the years. 

[62]     It is obvious to me that you are going to need many years of intensive therapeutic engagement if you are to have any hope of dealing with the kind of issues that you currently face.  The real risk, if I impose a finite sentence of imprisonment, is that you will simply “do your time”, and that you will not meaningfully engage in therapeutic treatment or intervention.

[63]     I consider that the only way in which you will engage in such a process is if you know that such engagement is necessary before you can be released from prison.  Only that, in my view, will provide the necessary motivation to ensure that you co-operate with professionals and that you seek whatever help may be available to you to resolve the very deep issues that you currently face.

[23]     The Judge said that for those reasons he had reached “a clear view” that society could only be properly protected by the imposition of a sentence of preventive detention. 

This appeal 

[24]     Mr Barnsdale argued that the sentence of preventive detention was wrong in principle and inappropriate.  He claimed that the Judge had failed to give proper weight to the principle enshrined in s 87(4)(e) that a finite sentence is preferable.  He submitted that given the “spark” of progress towards rehabilitation and other circumstances of this case the sentencing Judge should have imposed a finite sentence of 12 years.

[25]     It was submitted that many of the Judge’s concerns could have been addressed by an Extended Supervision Order.  This argument was based on the premise that if the appellant had not made sufficient progress by the time he had served the finite term the Department of Corrections could apply for an order which would provide the same assurance for the community as a sentence of preventive detention. 

[26]     In an affidavit sworn in support of the appeal Mr Flighty deposed that although he could not find any factual mistakes in the assessors’ reports, “they did not take account of the positive changes I have made over the years”.  He also expressed concern that, given the emphasis on the manslaughter conviction, the sentencing notes of Gallen J should have been before Lang J and that if they had been he would have been viewed “in a more favourable light”. 

Discussion

[27]     We have not been persuaded that Lang J erred in principle or that the imposition of preventive detention in this case was inappropriate.  The Judge carefully assessed the mandatory considerations under s 87(4), including the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.  His conclusion that a lengthy finite sentence could not achieve the necessary protection was inevitable. 

[28]     Although, as Mr Barnsdale submitted and Lang J accepted, Mr Flighty is motivated towards rehabilitation at the moment, there is a fundamental problem: lack of insight into the causes of his offending or his responsibility to contribute towards his own rehabilitation.  He has a perception that he has been unjustly treated and previous attempts at rehabilitation have been unsuccessful.  Given that Mr Flighty has already been responsible for the death of one person and very nearly caused the death of another, not to mention repeated violent offending between those two events, protection of society was a pivotal consideration. 

[29]     We agree with Lang J that, compared with a finite sentence, a sentence of preventive detention is more likely to persuade Mr Flighty that he has to come to grips with the factors underlying his offending and assist those attempting to promote his rehabilitation.  Whereas preventive detention will provide a protective safety net for the public if he fails to achieve rehabilitation, that would not be the case if a finite sentence was imposed and he failed to rehabilitate by the time he was eligible for release.  To the extent that Mr Barnsdale sought to argue that an extended supervision order could overcome this deficiency of a finite sentence, his argument is fundamentally flawed.  Offending of this nature does not constitute a “relevant offence” for the purposes of an extended supervision order:  see ss 107B, 107C and 107F of the Parole Act 2002.  We might also add that whereas preventive detention provides supervision for life, an extended supervision order cannot exceed ten years. 

[30]     Finally, we do not accept that the sentencing notes of Gallen J would, or should, have made any difference to the approach adopted by Lang J.  Clearly there are similarities between the manslaughter in 1990 and the current offending.  Although Gallen J concluded that the jury must have reached the view that there was an element of provocation when they found the accused not guilty of murder but guilty of manslaughter, that does not alter the reality that this is the second occasion on which Mr Flighty has attacked someone with a sharp instrument when that person was in the process of leaving a property.  Lang J did not place unwarranted weight on the manslaughter conviction. 

Result

[31]     The appeal against sentence is dismissed. 

Solicitors:
Crown Law Office, Wellington