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 Nemkin back inside the house.

[9]    About five minutes later, Mr Nemkin returned to the garage and fell asleep on Ms Rogers’ bed. Ms Rogers asked one of the other people from the address to help her move Mr Nemkin off her bed in case her partner came around to the house.

[10]   At that stage, while Mr Nemkin was still asleep, you went over to him and started striking him  with your fist  and elbow.  You  also  kicked  and  jumped on   Mr Nemkin while wearing steel-capped work boots. You delivered approximately six blows to his face, one of which was consistent with you stomping on his face with your boot, due to the presence of a shoe imprint on his face. You also delivered around three blows to his neck, one to his chest, one to his thighs and at least four to his abdomen. The summary of facts records that the blows to his abdomen are consistent with you kicking and jumping on Mr Nemkin multiple times.

[11]   The summary of facts records that Mr Nemkin was comatose at the time, likely due to the amount of alcohol he had consumed. He would never wake up again.

[12]   After you stopped attacking Mr Nemkin, you sat down on the couch in the garage. Ms Rogers and the others did not realise how badly Mr Nemkin was hurt and laid him down on the ground outside the garage. After realising he was unresponsive one of the people at the address called an ambulance. Upon arrival the ambulance staff confirmed Mr Nemkin was dead.

[13]   The summary of facts records that Mr Nemkin’s injuries were consistent with significant force to his stomach and abdominal area. Hs injuries included the following:

(a)a split liver;

(b)a split bowel, which was almost completely torn in some places, and tearing of the blood vessels leading to the bowel;

(c)bruising to his diaphragm and thighs;

(d)abrasions to his hips;

(e)bruising to his neck and face, including a bruise on his forehead consistent with a shoe imprint; and

(f)bruising to his scalp and nerve damage to the brain.

[14]   The injuries caused Mr Nemkin to bleed out internally, ultimately causing his death.

Victim impact statement

[15]   The Court has  received  a  victim  impact  statement  from  Leo  Nemkin,  Mr Nemkin’s 28 year old twin brother. He read his statement to the Court this morning. What follows is but a summary of the effects on Mr Nemkin’s twin, their parents, and an older brother. The statement is articulate and the pain felt by the family members is palpable.

[16]   Leo Nemkin describes his brother as “the most gentle person you could ever meet”. He was generous, thoughtful, and anxious to fit in, something he had struggled with, in part due to being on the autism spectrum. This made him susceptible to being taken advantage of, and his brother believes this is what took him to the house in Ranui on the night of his death.

[17]   Mr Nemkin was taken away, his brother  says,  for no fathomable reason.  Leo Nemkin describes the pain, despair, anxiety and deep sorrow he and the other members of his family have suffered since finding out about his brother’s death. He says they have all suffered in different ways. It has manifested in weight loss, sleep issues, substance use, panic attacks, days spent crying and friends distancing themselves. He describes being plunged into a well of pain that you could not possibly

comprehend before this happened. Watching his parents and seeing their pain has been one of the most painful parts of all. He describes celebrating his birthday without his brother and, for the first time, growing older than his twin.

Approach to sentencing

[18]   Sentencing is a two-stage process.2 First, I must determine a starting point for your sentence. In doing so, I will take into account the aggravating and mitigating features of your offending. Then, I will consider factors personal to you that may operate so as to adjust the starting point, such as your personal background, your conviction history, your guilty plea and the information in the Provision of Advice to Courts (PAC) report.

[19]   I remind myself of the purposes which the Court may take into account3 and principles which the Court must take into account4 during sentencing. In sentencing you I will hold you  accountable for the  immeasurable  harm  and loss  caused to  Mr Nemkin, his brother, and his family.

[20]   In your case, as well, the sentence I impose will denounce your conduct; deter you and others from committing similar offending; but also assist in your rehabilitation and reintegration.

[21]   I am required to take into account the gravity of your offending; the general desirability of consistency with sentencings in similar cases; any victim impact statements; your personal circumstances and background; and I must impose the least restrictive outcome that is appropriate in the circumstances.

Submissions

[22]   Mr Steele, appearing for the Crown, submits that a starting point in the range of eight and a half to nine years’ imprisonment is appropriate. Given that there is no guideline judgment for sentencing in manslaughter cases, the Crown first relies on

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

3      Sentencing Act 2002, s 7.

4      Sentencing Act, s 8.

Taueki.5 Mr Steele submits that the number and degree of the aggravating factors present place your offending at the top of band two (a starting point of five to 10 years’ imprisonment) or the bottom of band three (a starting point of nine to 14 years’ imprisonment).

[23]   The Crown has identified six aggravating factors for your offending: the violence was particularly serious; premeditation; the extent of the harm which involved serious injury; attacking the head; vulnerability of the victim; and the impact on Mr Nemkin’s family.

[24]   For your personal factors, Mr Steele submits there should be an uplift of six months’ imprisonment for your relevant prior convictions and a discount of no more than 20 per cent for your guilty plea.

[25]   Mr Steele addressed the Court orally on the matters arising from your s 27 report and psychological report (as those reports were not available to the Crown at the time the Crown’s written submissions were filed). He submits a discount of no more than 10 per cent should be applied having regard to the contents of those two reports.

[26]   Finally, Mr Steele submits that your lack of accountability, history of violence and the nature of your offending against Mr Nemkin indicate that you will pose a real risk to the community. Accordingly, he submits that a minimum period of imprisonment (MPI) of 60 per cent of the final sentence is appropriate.

[27]   Your counsel, Mr Chisnall KC, submits that seven years’ imprisonment is an appropriate starting point (with the appropriate range being six and a half to seven and a half years). Mr Chisnall contends that the offending was not premeditated. However, he agrees with the Crown that the aggravating factors present in your offending include: the high extent of violence; attacking the head; and Mr Nemkin’s vulnerability. Mr Chisnall further acknowledges that the injury (death) is of the highest seriousness but he submits that it is not a primary aggravating factor because it was unintended.

5      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

[28]   Mr Chisnall accepts that an uplift is available for your prior convictions but submits that a proportionate uplift should be no more than five per cent (or four months’ imprisonment).

[29]   He submits that a 25 per cent discount should be given for your guilty plea as it was entered as soon as the original charge of murder was amended to manslaughter.

[30]   Mr Chisnall also relies on a report prepared under s 27 of the Sentencing Act 2002 and a psychological report, both filed together with his submissions. He submits that a discount of 25 per cent is reasonable having regard to the contents of those reports.

[31]   He also submits that a five per cent discount for remorse would be appropriate. With the uplifts and discounts for personal factors netted off against each other, the total discount from the starting point would be 50 per cent. That would result in an end sentence of three years and six months’ imprisonment.

[32]   Finally, Mr Chisnall contends that you are a prime candidate for rehabilitative intervention. Accordingly, he submits an MPI is not necessary.

Approach to setting a starting point

[33]   There is no guideline case for sentencing for manslaughter. The sentencing court can either utilise the Court of Appeal judgment in Taueki6 in which the Court set out sentencing bands for the charge of causing grievous bodily harm with intent to cause grievous bodily harm. Or the Court can compare the case before it with sentences in similar manslaughter cases. Or the Court may follow both approaches, each providing a check on the other.7

[34]   On either approach it is necessary for the Court to identify the aggravating factors of your offending and also the seriousness of each factor. As well, the Court must identify any mitigating factors of your offending.

6      R v Taueki, above n 5.

7      R v Tai [2010] NZCA 598 at [12].

Aggravating factors of offending

[35]I consider the following aggravating factors were present.

(a)Extent of violence

[36]   I consider the violence involved in your offending is particularly serious. Although you did not use a weapon, you subjected Mr Nemkin to a brutal and gratuitous beating. You delivered in total at least 15 blows, including stomping on his face hard enough to leave a boot print.

(b)Premeditation

[37]   The Crown accepts that yours was not a highly planned attack, but Mr Steele says neither was it spontaneous. Mr Chisnall submits your offending is better viewed as opportunistic offending at a time when Mr Nemkin was vulnerable.

[38]   I consider there was a degree of premeditation.   Your  behaviour towards   Mr Nemkin got worse over the evening and culminated in the attack on him that I have described. The behaviour started with you threatening Mr Nemkin after seeing him kissing Ms Rogers. Later you made growling and hissing noises at him and threatened to hit him in the face. I accept Mr Steele’s submission that it is evident from your earlier behaviour towards Mr Nemkin that you anticipated a degree of violence towards him and the fact that you waited until Mr Nemkin was defenceless indicates a degree of premeditation.

(c)Serious injury (extent of harm)

[39]   Mr Chisnall acknowledges that the fact of death is an additional aggravating factor. But he cautions against placing too much weight on this unintended consequence when setting the starting point. Mr Chisnall also refers to the evidence of the pathologist who conducted the post-mortem examination, who concluded that Mr Nemkin’s high post-mortem alcohol level may have contributed to death through either respiratory depression or vasodilation of blood vessels.

[40]   Mr Steele says that while the Crown accepts that Mr Nemkin’s high blood alcohol level could have contributed to his death, this does not negate the seriousness of the harm caused. I accept Mr Steele’s submission. On a legal analysis your conduct caused Mr Nemkin’s death, in other words, the injuries from your conduct were a substantial and operative cause of Mr Nemkin’s death.

(d)Attack to the head

[41]   Mr Chisnall notes that the primary cause of death was from a split liver, which he says is not an area of the body one would ordinarily associate with a likely or foreseeable result in death, whether or not a weapon is involved.

[42]   Mr Steele acknowledges that it is not in dispute that the cause of death did not arise from any blow to the head. Nevertheless, you struck Mr Nemkin in the face six times. At least one of those blows was the result of you stomping on Mr Nemkin’s head with a steel-capped boot. In addition, as Mr Steele points out, at least three blows were delivered to Mr Nemkin’s neck. These are all highly sensitive parts of the body.

(e)Vulnerability of the victim

[43]   Mr Nemkin was completely defenceless and totally vulnerable at the time you attacked him. He was lying down on a bed and was comatose at the time, likely due to the amount of alcohol he had consumed. He was obviously totally unaware of what you were about to do to him.

(f)Impact on the victims

[44]   It is apparent from the victim impact statement that I have already referred to from Mr Nemkin’s twin brother that there has been, and will continue to be, a heavy emotional toll on Mr Nemkin’s family.

[45]   The presence of all those aggravating factors (but with premeditation only to a limited degree) puts your offending within band three of Taueki. That is a starting point of nine to 14 years’ imprisonment.

[46]   However, when I carry out a cross check with sentencing decisions in other similar manslaughter cases, I consider a starting point even at the lower end of band three is too high. The Court of Appeal has said:8

… one punch manslaughter cases typically attract starting points of five to six years’ imprisonment and … starting points of seven to eight years’ imprisonment have been imposed for sustained assaults to the head causing an unintended death.

(footnotes omitted)

[47]This is clearly not a “one punch manslaughter case”.

[48]   Having reviewed the cases referred to by the Crown9 and the additional cases referred to by the defence10 I consider a starting point of eight years’ imprisonment is appropriate.

[49]There are no mitigating features of your offending.

[50]   I now turn to consider factors personal to you which may operate to adjust that starting point.

Personal aggravating factors

[51]   Mr Steele submits that an uplift of six months’ imprisonment should be applied in recognition of your relevant previous convictions. Mr Chisnall submits that an uplift of no more than five per cent which, based on the starting point of seven years’ imprisonment which he promotes, would be four months.

[52]   You have a large number of previous convictions for violence between 1991 and 2019. These include convictions for common assault, aggravated assault, wounding with intent to injure, male assaults female, assaulting Police, resisting Police, threatening behaviour and wilful damage.

8      R v Blackler [2019] NZCA 232 at [27].

9      R v Tai, above n 7; Te Pana v R [2014] NZCA 55 and Blackler v R, above n 8.

10     R v Evans-Whatarangi HC Hamilton CRI-2008-068-609, 3 December 2009; and Cooper v R

[2014] NZCA 275.

[53]   I accept Mr Chisnall’s submission that while you have a chequered history, as he puts it, this manslaughter is contextually different from your past offending. Much of that history involves domestic violence in relation to your partner or offences involving your parents or Police officers. Mr Chisnall, nevertheless, properly acknowledges that an uplift is available.

[54]   Having regard to the starting point I have adopted, I will make an uplift of five months’ imprisonment for your conviction history.

Personal mitigating factors

[55]I address each of the factors identified by Mr Chisnall in turn.

Guilty plea

[56]   Mr Steele notes that you were charged on 23 June 2022 and resolution discussions were only initiated by defence counsel in July 2023. Mr Steele, nevertheless, acknowledges that as a result of those discussions the charge was amended to manslaughter. He submits a discount of 20 per cent should be allowed.

[57]   Mr Chisnall submits the Court should give the full allowable discount of     25 per cent. He says disclosure was ongoing. He also says the pathologist’s report was not immediately to hand and he instructed a medical expert to review the injuries and cause of death.

[58]   Notwithstanding the steps that I accept defence counsel needed to take after the charge was laid, resolution discussions were not initiated until over a year after you were charged. In the circumstances I consider that a discount of 20 per cent for your guilty plea is appropriate.

Remorse

[59]The writer of the PAC report says:

Mr Chapman offered no explanation or insight into his offending, indicating a reluctance to accept  any  responsibility  for  his  actions.  It  is  assessed Mr Chapman has shown a high sense of self entitlement while committing an

unprovoked, violent attack on a defenceless victim, to which he has not expressed any authentic remorse.

[60]The writer further said:

Although he stated he feels remorse about the situation, given he has not taken responsibility for his offending, it is assessed Mr Chapman is not remorseful for his actions.

[61]   Mr Steele submits there should be no discount for remorse. He refers to the parts of the PAC report I have just quoted and also to the report of the psychologist you rely on in which the psychologist records that you attempted to attribute some blame to the victim.

[62]   However, I take into account that you felt a degree of reluctance about speaking to the writer of the PAC report. The Court is also told by Mr Chisnall that your video interview with the report writer ended prematurely when the connection was cut off and it did not recommence.

[63]   You were much more forthcoming when you later spoke to the writers of the two reports tendered on your behalf. They were also able to speak to you for a more extended period than the length of time available for your interview with the writer of the PAC report. Ms Oakley (the writer of the s 27 report) referred to what you said about remorse in the following way:

I can’t get away from it…I think about it all the time ... every day ... all day… that I took someone’s life. I didn’t mean to .. I really didn’t.. but that is what I did. I am so sorry for what I did. I have full 100 per cent remorse for the family and my actions 100 per cent remorse. I'm not just saying that, I really mean that I didn’t plan on taking someone’s life and in return my life should be taken for the grief the family is going through.. all I can do is make sure that this is never going to happen again. I'm 100 per cent remorseful for my actions. I cannot turn the time back if I could then I would. I know that I have hurt my family too. I know my children need me and I’m not there.

[64]   A court may give a discount for remorse separately from the discount for a guilty plea. I accept your remorse is genuine and give you a modest discount of five per cent.

Section 27 report and psychologist’s report

[65]   I acknowledge that each report raises separate issues but there is also a high degree of commonality between the two reports. Accordingly, I address them both together. Mr Chisnall submits that the Court should make a reduction of 25 per cent to reflect the way in which your background causally contributed to your offending. Mr Steele submits a discount of perhaps 10 per cent would be available.

[66]   You were intoxicated at the time you committed the offence. In sentencing, a court must not take into account by way of mitigation the fact that an offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol.11

[67]   However, the Court may take into account the cause of what both report writers identify as an “alcohol overuse disorder”. In other words, the Court may consider events in your life, particularly in your early life, that caused or contributed in large part to your alcohol addiction, and as a consequence, to your offending.

[68]   In your case I accept there is a causative contribution from your background to your offending.12

[69]   I am now going to mention [redacted] in your childhood. I make an order, on the application of Mr Chisnall, that references to the fact that you suffered [redacted] are prohibited from publication.

[70]   From the age of seven until you were around 11 years old, [redacted]. You did not tell your parents about that until you were in your late thirties when you finally spoke to your mother about what had happened to you. [Redacted] lead to you misbehaving as a child. With your parents both working full time your behaviours became too much for your parents to handle. You were sent to live with one of your mother’s brothers, who was the President of the Mongrel Mob in the area where he lived. Your uncle, however, counselled you against joining a gang.

11     Sentencing Act, s 9(3).

12     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

[71]As regards [redacted], Ms Oakley, the writer of the s 27 report, has this to say:

24.Whilst there is evidence of other childhood trauma in Mr Chapman’s life, it is [redacted] that has the most impact on him. He never told anyone and therefore never received any treatment, counselling or medication to help him deal with it. Mr Chapman used alcohol and cannabis throughout his life to quell his emotions enough to be able to live his life.

25.Mr Chapman’s alcohol use appears to have negatively impacted every facet of his life; the associated negative behaviours have led to multiple incarcerations, and impacted his employment, and his relationship with his whānau, partners and children. Mr Chapman truly believes that his alcohol overuse, in one way or another has led to every single criminal charge on his record.

…

29.Mr Chapman presents as being an alcoholic. He described a craving  that overtakes him as soon as he puts alcohol into his body, and once he begins to drink he cannot stop. …

[72]   Ms Oakley also refers to other factors that contributed to your developing an alcohol use disorder: both your parents overused alcohol and you commenced using alcohol at an early age. By the age of 13 you were allowed to drink with your mother and uncles and report getting drunk most weekends. You also left school at 13 and never returned to education.

[73]Ms Oakley concludes:

36. Most especially, however, it is [redacted] that Mr Chapman suffered from such an early age that appears central to his alcohol abuse and early use of substances. Drug and alcohol addiction is common among [redacted]; self-medication for the pain and suffering is often at the core of their use. This appears the case for Mr Chapman.

(footnote omitted)

[74]   Nick Lascelles, a forensic psychologist who wrote the psychological report that you rely on, concurs with Ms Oakley’s assessment. He says:

52. Despite a number of adverse factors already present in Mr Chapman’s life, becoming subject to [redacted] from age seven to nine is identified as the key factor that created a chain of negative consequences leading to lifelong problems with relationships, aggression, emotional dysregulation and substance abuse.

[75]   Having regard to both reports I consider a discount of 15 per cent for the personal factors I have mentioned is appropriate.

[76]   Accordingly, the total discount for personal factors is 40 per cent (20 per cent for your guilty plea; five per cent for remorse; and 15 per cent for personal factors). That discount is calculated against the starting point of eight years’ imprisonment – in other words, before the uplift for prior offending is added to the starting point.13

[77]   A 40 per cent discount is 38.4 months. Subtracted from the starting point of eight years (ie 96 months), gives a figure of 57.6 months. I round that down in your favour to 57 months. To that figure I add five months for your prior offending, resulting in an end sentence of 62 months. In other words, your sentence will be five years and two months’ imprisonment.

Minimum period of imprisonment

[78]   I finally turn to consider whether the Court should impose a minimum period of imprisonment. I have earlier adopted the abbreviation MPI.

[79]   A court may impose an MPI if the usual non-parole period would be insufficient for all or any of the four purposes in s 86(2) of the Sentencing Act. Those four purposes are:

(a)holding the offender accountable for the harm done to the victim and the community;

(b)denouncing the conduct in which the offender was involved;

(c)deterring the offender or others from similar offending; and

(d)protecting the community from the offender.

13     See for example Gray v R [2020] NZCA 548 at [31], applying the two step methodology in Moses v R, above n 2. See also Stuart v R [2021] NZCA 539 at [14]–[16].

[80]   The minimum period of imprisonment imposed must not (as applicable here) exceed two thirds of the full term of the sentence.14

[81]   In support of an MPI of 60 per cent, Mr Steele refers to the assessment by the writer of the PAC report that you have a moderate risk of reoffending and a high risk of further harm to others. Mr Steele submits that your lack of accountability, your history of violence and the nature of your offending against Mr Nemkin indicate that you pose a real risk to the community. Accordingly, he submits that an MPI of 60 per cent of the final sentence is appropriate.

[82]   On the other hand, Mr Chisnall submits that the s 27 and psychological reports comprehensively establish that you have acknowledged your need for rehabilitation and expressed a desire to engage in treatment. You recognise that you need tailored treatment. Mr Chisnall also adds that your previous violence convictions tend to show that this serious charge is “an outlier,” to use his expression.

[83]   I accept Mr Chisnall’s submissions and do not consider it is necessary to impose an MPI. It will be for the Parole Board after you have served the minimum period required by statute, to determine when you should be released.

Sentence

[84]Mr Chapman would you stand please.

[85]   I sentence you to imprisonment for five years and two months on the charge of manslaughter.

[86]Stand down please.

Gordon J

14     Sentencing Act, s 86(4).