Felise v The Queen - [2020] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA375/2019
[2020] NZCA 60

BETWEEN	MYRON ROBERT ALF FELISE Appellant
AND	THE QUEEN Respondent

Hearing:	24 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	E P Priest for Appellant B Dickey and E J Smith for Respondent
Judgment:	16 March 2020 at 10.00 am

JUDGMENT OF THE COURT

AThe application for extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Felise appeals the sentence of seven years imprisonment, with a minimum period of three years and six months imprisonment, imposed on him for the manslaughter of Eli Holtz.[1] He complains that the sentencing judge adopted a starting point that was too high, denied him a discount for his post-traumatic stress disorder (PTSD), and overlooked a causal link between the offending and his traumatic and deprived background.

The facts

[1]R v Felise [2019] NZHC 341.

The summary of facts records that Mr Holtz, aged 18, was visiting Auckland from Whangarei with a friend on 27 January 2018. About 3.15am they were driving down Wellesley Street in Central Auckland, with Mr Holtz in the front passenger seat. Mr Felise was standing with a group of friends on the side of the road. As the car drove past Mr Holtz fired a single water pellet from a toy rifle at Mr Felise, hitting him on his lower back. This foolish act angered Mr Felise, understandably, but it did not injure him.
The car stopped at the traffic lights at the intersection of Wellesley and Queen Streets. Seeing this, Mr Felise walked towards it, brushing aside an associate who tried to dissuade him. On reaching the passenger’s side of the car, Mr Felise opened the door and punched Mr Holtz in the face, connecting at least once. He seized the water pellet gun and broke it on Mr Holtz, and punched him in the face repeatedly. Mr Holtz was trapped in the car and did not fight back. He lost consciousness during the attack, which did not stop until Mr Felise’s associate pulled him away from the car. They left the driver to attend to Mr Holtz, who never regained consciousness and died in hospital after life support systems were removed.
The incident was recorded on a street camera. The footage conveys not only the brutality of the attack but also an air of deliberation.
Mr Felise was grossly intoxicated at the time. He admitted that he had consumed between 10 and 15 shots of spirits and at least 24 bottles of premixed ready to drink beverages, as well as several beers.
A guilty plea was entered two weeks before the trial was to begin.

Personal circumstances

Mr Felise was 31 years old at sentencing. He was raised in Otara in a tight‑knit and supportive family in which he appeared to have a healthy and stable upbringing and developed a strong work ethic. He is…

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 Felise v The Queen

Details

AGLC: Felise v The Queen [2020] NZCA 60
Case: [2020] NZCA 60
Decision Date: 16 March 2020 at 10.00 am

CaseChat Overview and Summary

Myron Robert Alf Felise appeals the sentence of seven years imprisonment, with a minimum of three years and six months, imposed on him for the manslaughter of Eli Holtz. He argues that the sentencing judge erred in setting the starting point too high, failed to discount for his post-traumatic stress disorder (PTSD), and overlooked the causal link between the offending and his deprived and traumatic background. The court considered the appeal, ultimately dismissing it and affirming the sentence.

The legal issues before the court were whether the starting point was too high, whether PTSD warranted a discount, and whether the court overlooked the causal link between the offending and Mr Felise's background. The court examined these arguments, focusing on the gravity of the offence, Mr Felise's history of violence, and his intoxication at the time of the offence.

The court found that the starting point was appropriately set, as the footage showed deliberate and serious violence against a vulnerable victim. The court also determined that PTSD did not play a causal role in the offence, as the footage showed Mr Felise had the capacity to reflect on his actions. The court accepted that Mr Felise had a deprived and traumatic background, but found that it did not relate to the commission of the offence. The court concluded that the sentence was appropriate given Mr Felise's history of violence, his failure to learn from past experiences, and the need for accountability, denunciation, and deterrence.

The court granted the application for extension of time to appeal but dismissed the appeal, affirming the sentence of seven years imprisonment, with a minimum of three years and six months.

Orders