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R v Felise

R v Felise

Case [2019] NZHC 341 28 February 2019

Aggravated & Exemplary Damages

Res Judicata

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-004-000832

[2019] NZHC 341

THE QUEEN

v

MYRON FELISE

Hearing: 28 February 2019

Appearances:

B Dickey & E Smith for Crown M Pecotic for Defendant

Judgment:

28 February 2019

SENTENCING NOTES OF JUSTICE VAN BOHEMEN

Solicitors/Counsel:
Meredith Connell, Auckland M Pecotic, Auckland

R v FELISE [2019] NZHC 341 [28 February 2019]

[1] Myron Robert Alf Felise, you appear for sentencing in this court on a single charge, having pleaded guilty to the manslaughter of Eli Francis Holtz on 14 November 2018.1 The maximum sentence for manslaughter is life imprisonment.2 I have previously given you a first strike warning as required by law.

[2] Before I begin the formal part of my sentencing remarks, I acknowledge the presence here today of the Holtz family and Loraini Ramage, Eli’s birth mother. We have already heard the Victim Impact Statements from the members of the Holtz family. We have also heard the statement from Mrs Felise. I pay tribute to all of you and your families for the dignified way you have dealt with this tragedy.

[3] Everyone at the back of the Court has been through a terrible time over the last year. None of you could have imagined being in this situation. Sadly – a word I will use a lot today – we are here, and we have to deal with the consequences of those tragic events that took place on the streets of downtown Auckland just over a year ago.

The facts

[4] Mr Felise, I begin by recalling the factual basis upon which I am sentencing you today.

[5] The events in question took place in the early hours of the morning on 27 January 2018. Mr Felise, you had been visiting Auckland for your mother’s birthday and had gone out drinking in Central Auckland with a number of friends. Mr Holtz, was also out in Central Auckland that night, in the front passenger seat of a car driven by a friend.

[6] Your paths crossed at around 3am. You were standing with an associate at the driver’s side window of a car parked on the side of Wellesley Street West, just up from the intersection with Queen Street. Mr Holtz’s car drew alongside you as it approached the intersection. Mr Holtz – foolishly no doubt - fired a single water pellet at you from a toy rifle. The pellet hit you in the lower back, angering you, but not causing you any injury.

1 Crimes Act 1961, ss 160(2)(a), 171.
2 Crimes Act 1961, s 177(1).

[7] Mr Holtz’s car stopped for the traffic lights at the intersection just down the road from you. You started towards it, brushing off the efforts of a friend to restrain you. You opened the door and began to attack Mr Holtz. You first struck him in the head using your fist and then struck his body with the pellet gun, breaking…

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 Felise

Details

AGLC: R v Felise [2019] NZHC 341
Case: [2019] NZHC 341
Decision Date: 28 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Felise was heard for sentencing on a charge of manslaughter. The defendant, Myron Robert Alf Felise, had pleaded guilty to the manslaughter of Eli Francis Holtz on 14 November 2018. The legal issues the court was required to decide included the appropriate starting point for sentencing, the consideration of aggravating and mitigating factors, and the imposition of a minimum period of imprisonment. The court's reasoning involved a detailed analysis of the circumstances of the offence, the defendant's history of violence and alcohol misuse, and the impact of the offence on the victim's family. The outcome was a sentence of seven years' imprisonment, with a minimum period of imprisonment of three and a half years. The court emphasised the need for accountability, denunciation, responsibility, and deterrence in its sentencing decision. The final orders included the sentence of imprisonment and the minimum period of imprisonment.

Orders