Flavell v R [2024] NZCA 317 (15 July 2024)

Last Updated: 22 July 2024

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

• [1] 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.
• [2] 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] 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.
• [4] 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”.
• [5] Mr Flavell bought a further 42 grams of methamphetamine from Mr Cassidy, which he also supplied to purchasers within his own network.
• [6] 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.
• [7] 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]
• [8] Judge G C Hollister-Jones adopted an 11-year starting point.^[8] The Judge added four months for the offending on bail and Mr Flavell’s history of drugs offending; in 2008, Mr Flavell received a three-year prison sentence for possessing methamphetamine and amphetamine.^[9] The Judge deducted 10 per cent for Mr Flavell’s guilty pleas and a further 35 per cent for personal circumstances, including Mr Flavell’s methamphetamine-use and rehabilitative progress.^[10] A reduction of three months was given to recognise time spent on EM bail.^[11]
• [9] As observed, the resulting sentence was five years and nine months’ imprisonment.^[12]

Was the starting point too high?

• [10] The offending fell within band 4 of this Court’s guideline judgment of Zhang v R.^[13] Band 4, which concerns methamphetamine dealings between 500 grams and two kilograms, attracts a range from eight to 16 years’ imprisonment.^[14]
• [11] On behalf of Mr Flavell, Mr Ismail argues the starting point should have been nine and a half years’ imprisonment, not 11 years’ imprisonment. Mr Ismail says the offending is not more serious than that in Clark v R, in which a nine and a half-year starting point was adopted.^[15] Mr Ismail notes Clark also involved the on-supply of methamphetamine initially purchased from a higher-level dealer.
• [12] We do not consider Clark a useful comparator. Clark involved: less methamphetamine (720 grams against 868 grams); a shorter offence period (five days against several weeks); and fewer supplies of the drug down the chain (five against multiple supplies). Conversely, the 11-year starting point adopted by the Judge is consistent with the examples cited by Mr Blaschke on behalf of the Crown, including Miller v R, in which an offender “not at the top of the chain” dealt 905 grams of methamphetamine.^[16] In that case, an 11-year starting point was upheld by this Court.
• [13] Mr Ismail also argues the starting point is too severe as Mr Flavell’s offending reflected his dependence on methamphetamine, and others exploited that vulnerability. Mr Ismail says Mr Flavell’s cultural report provides support for this view.
• [14] We are not persuaded Mr Flavell’s offending reflects these influences, at least to any appreciable degree. We note the cultural report does not suggest Mr Flavell was exploited by others. Nor does any other report before us, save perhaps for an oblique passage in the Pūwhakamua report expressed at a level of generality. We note Mr Flavell had his own distribution network, which he utilised for profit. We consider this feature important, for reasons that are self-evident. Furthermore, Mr Flavell committed the offending in his 50s, while a member of the Mongrel Mob, against a backdrop of earlier drug-dealing for which Mr Flavell was imprisoned. We, therefore, consider the offending largely reflects agency.
• [15] It follows the starting point is unimpeachable.

Was the guilty plea discount inadequate?

• [16] Mr Ismail contends this discount should have been 20 per cent, not 10 per cent. In determining the level of discount for a guilty plea, which is capped at 25 per cent, whether the defendant pleads guilty “at the first reasonable opportunity” is an important consideration.^[17]
• [17] Mr Ismail argues the situation is analogous to E (CA689/2010) v R, in which this Court afforded the defendant a full 25 per cent discount for her offer to plead guilty to manslaughter, of which she was ultimately found guilty in relation to her infant son.^[18] Mr Ismail says the delay in relation to Mr Flavell’s guilty pleas, including his admissibility challenge to the incriminating evidence, is akin to the delay in E (CA689/2010) v R arising from the defendant’s exploration of infanticide, and his pleas were, therefore, entered at the first reasonable opportunity.
• [18] We respectfully disagree. The defendant in E (CA689/2010) v R suffered significant mental difficulties. She attempted suicide the day after the offending. Consideration of infanticide, which required the assistance of an expert, was necessary to ensure the defendant did not plead guilty to the wrong charge. In other words, E (CA689/2010) v R was a special case.
• [19] More analogous is Cooper v R, which, very properly, Mr Ismail also cited.^[19] Cooper also involved guilty pleas to drug charges. As with Mr Flavell, the defendant hoped the incriminating evidence would be excluded following an admissibility challenge. The sentencing Judge in Cooper also gave a 10 per cent discount for the defendant’s pleas. This Court said:^[20]

[30 We see no basis for altering the discount for mitigating features. The guilty plea was entered very late, shortly prior to trial. We agree with Ms Markham’s submission that a plea delayed for tactical reasons, however reasonable those tactics may be from a defendant’s perspective, is still a delayed plea. ...

• [20] In light of the chronology at [6]–[7], we are unable to accept Mr Flavell’s pleas were entered at the first reasonable opportunity. To conclude otherwise would distort that concept, in turn encouraging late pleas. We reiterate the circumstances are removed from E (CA689/2010) v R and akin to those in Cooper, and that the pleas came only three weeks before trial.

A manifestly excessive sentence?

• [21] The overarching question in a sentence appeal is whether the sentence is manifestly excessive. As will be apparent, we are satisfied the sentence is not. Mr Flavell dealt in a large amount of methamphetamine and committed further drug offending on bail. Mr Flavell was not atop the hierarchy, but he did have his own network of purchasers. His sentence of five years and nine months’ imprisonment is, we consider, unremarkable.

Result

• [22] The appeal is dismissed.

Solicitors:
Keam Law, Auckland for Appellant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[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].

^[3] Criminal Procedure Act 2011, s 250.

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

^[5] The cultural report says Mr Flavell relinquished his gang patch after the offending.

^[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.

^[7] R v Flavell [2023] NZDC 715.

^[8] Judgment under appeal, above n 2, at [21].

^[9] At [23].

^[10] At [24]–[30].

^[11] At [31].

^[12] At [32].

^[13] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[14] At [125].

^[15] Clark v R [2020] NZCA 641.

^[16] Miller v R [2020] NZCA 131; and Hobson v R CA617/2018 heard and determined in Zhang v R, above n 13.

^[17] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

^[18] E (CA689/2010) v R [2011] NZCA 13.

^[19] Cooper v R [2013] NZCA 551.

^[20] Footnote omitted.