R v Chapman - [2024] NZHC 466

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [69].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-090-2051

[2024] NZHC 466

THE KING

v

PAUL ANTHONY CHAPMAN

Hearing: 6 March 2024

Appearances:

H Steele and P NcNabb for the Crown

N Chisnall KC and L Elborough for the Defendant

Judgment:

6 March 2024

(REDACTED) SENTENCING NOTES OF GORDON J

Solicitors/Counsel:
Meredith Connell, Auckland N Chisnall KC, Auckland

R v CHAPMAN [2024] NZHC 466 [6 March 2024]

Introduction

[1] Mr Chapman, you appear before me for sentencing having pleaded guilty to the manslaughter of Lev Yurivich Nemkin. The offence of manslaughter carries a maximum sentence of life imprisonment.1

[2] Before I begin my sentencing decision I acknowledge the members of Mr Nemkin’s family: his mother, father and two brothers who are present in Court.

The offending

[3] In entering your guilty plea, you accepted the contents of the summary of facts. Although you are familiar with the summary of facts it is necessary for me to summarise those facts in this decision.

[4] In the early evening of Sunday 19 June 2022, you went to a house in Ranui, Auckland. You visited this address frequently as you knew the head tenant.

[5] At around 5.30 pm you were sitting in the lounge with Nicola Rogers, an occupant of the house, when Mr Nemkin walked in. You had never met Mr Nemkin before that night. In fact, he did not know the occupants of the address. He had been in Auckland city during the afternoon and had struck up a conversation with a male he had not previously met. That male invited Mr Nemkin to come with him to visit an associate at the Ranui address. The two of them arrived at around 4.30 pm.

[6] At about 5 pm the two of them left the house to get some food from a nearby takeaway store, returning about 30 minutes later. By that time you had arrived at the address. You, Mr Nemkin, and the four other occupants of the house were all drinking alcohol together inside the main house.

[7] Later that evening, you went to the garage where Ms Rogers was living and kicked open the door. You saw Ms Rogers and Mr Nemkin kissing on Ms Rogers’ bed. You became angry and started threatening Mr Nemkin. Ms Rogers and Mr Nemkin left the garage and went back into the main house.

1 Crimes Act 1961, s 177.

[8] You stayed in the garage and started drinking with others present there. Ms Rogers came back into the garage and was drinking with you. Mr Nemkin then returned to the garage. You saw Mr Nemkin put a hand on Ms Rogers’ leg. In response, you started making growling and hissing noises at Mr Nemkin and said: “shall I hit you in the face”? Two of those present took Mr…

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 R v Chapman

Details

AGLC: R v Chapman [2024] NZHC 466
Case: [2024] NZHC 466
Decision Date: 6 March 2024

CaseChat Overview and Summary

The case of R v Chapman involved the sentencing of Mr Chapman for the manslaughter of Lev Yurivich Nemkin. The incident occurred on 19 June 2022, at a house in Ranui, Auckland, where Mr Chapman and others were drinking alcohol. Mr Nemkin, who did not know the occupants, was invited to the house by a male he had met earlier in the day. Upon arrival, Mr Nemkin and another male left to get food, returning around 30 minutes later. At approximately 5 pm, Mr Chapman arrived, and tensions escalated after he saw Mr Nemkin kissing Nicola Rogers in the garage where she resided. Mr Chapman threatened Mr Nemkin and later attacked him while he was asleep, inflicting fatal injuries. Mr Nemkin was pronounced dead upon the arrival of an ambulance.

The legal issues the court needed to decide included determining an appropriate starting point for the sentence, considering the aggravating and mitigating factors of the offence, and deciding on any minimum period of imprisonment (MPI). The Crown argued for a starting point of eight and a half to nine years' imprisonment, citing six aggravating factors: the seriousness of the violence, premeditation, the extent of the harm, attacking the head, the victim's vulnerability, and the impact on the victim's family. The defence argued for a starting point of seven years, acknowledging the high extent of violence and vulnerability but contending that the death was unintended.

The court found that the violence was particularly serious, with Mr Chapman delivering at least 15 blows to Mr Nemkin, including stomping on his face with steel-capped boots. There was a degree of premeditation, as Mr Chapman's behaviour towards Mr Nemkin escalated over the evening. The court also noted the serious injury and the attack on the head, as well as the significant impact on Mr Nemkin's family. After considering these factors, the court determined an appropriate starting point of eight years' imprisonment.

Personal factors considered included Mr Chapman's history of violence, a guilty plea, and remorse. The court accepted a 20% discount for the guilty plea, a 5% discount for remorse, and a 15% discount for personal factors, resulting in a total discount of 40%. This discount was applied against the starting point before adding the uplift for prior offending, resulting in a final sentence of five years and two months' imprisonment. The court decided not to impose an MPI, leaving the determination of the non-parole period to the Parole Board.

In conclusion, Mr Chapman was sentenced to imprisonment for five years and two months for the manslaughter of Lev Yurivich Nemkin.

Orders