R v McFarland - [2014] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-004-012244 [2014] NZHC 1106

THE QUEEN

v

GRENVILLE DAVID McFARLAND

Hearing: 23 May 2014

Appearances:

W Cathcart for Crown
RM Mansfield and H Stuart for Defendant

Judgment:

23 May 2014

SENTENCING NOTES OF ANDREWS J

R v McFARLAND [2014] NZHC 1106 [23 May 2014]

Charges

[1] Mr McFarland you appear for sentencing today having pleaded guilty to a charge of manslaughter. You will have been advised that the maximum penalty provided by law on conviction for manslaughter is life imprisonment.

Relevant Facts

[2] In the early hours of 2 November 2013, following a night out drinking with a friend, you went to a takeaway restaurant with a group of people whom you had just met. While you were waiting for your meal the victim, Mr Asthana and his flatmate, arrived at the restaurant and also ordered. They, too, had been out drinking for the night.

[3] Shortly after you had ordered, one of the people in your group dropped a drink. Mr Asthana began slow clapping, but then came over to you and shook hands with you. Mr Asthana then blew a piece of a drink straw wrapping into the face of one of your female companions. He said to her that she was just, in his words, “standing there looking good … if it had been anybody else I wouldn’t have done it.” Later, while you were eating, Mr Asthana came and talked to the same woman, and complained about the service at the restaurant. Your female companion and her friend responded that they had only just ordered, and they then ignored Mr Asthana.

[4] You then went outside to wait for a bus. Your female companion also came outside, to smoke. While she was standing there Mr Asthana walked out of the restaurant heading for a taxi and, on his way past this woman, slapped her hard on her buttocks causing her to swear at him and tell him not to touch her. Mr Asthana, however, simply continued towards his taxi.

[5] At this point you placed your food on the ground and approached Mr Asthana. Then, although Mr Asthana had not taken any action towards you, you punched him once in the face with your right hand. The punch was delivered with significant force. Mr Asthana fell backwards without attempting to break his own fall. His head struck the ground heavily.

[6] You and your associate then left together. You made no attempt to help Mr Asthana or to get anybody else to take care of him. Mr Asthana was bleeding from his nose and mouth and fell unconscious. He was taken to Auckland Hospital by ambulance where he was placed on life support. Sadly he was pronounced brain dead and his life support was turned off some three days later.

[7] You pleaded guilty in this Court on 19 February 2014. Your sentencing has been adjourned awaiting the outcome of two restorative justice conferences. Those conferences…

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 McFarland

Details

AGLC: R v McFarland [2014] NZHC 1106
Case: [2014] NZHC 1106
Decision Date: 23 May 2014

CaseChat Overview and Summary

Grenville David McFarland appeared in the High Court of New Zealand, Auckland Registry for sentencing after pleading guilty to a charge of manslaughter. The court heard that McFarland had punched the victim, Mr Asthana, in the face with significant force, resulting in Mr Asthana falling backwards, striking his head on the ground, and subsequently being pronounced brain dead. The court considered various factors, including the nature of the violence, the lack of assistance provided to the victim, and McFarland's remorse and participation in restorative justice processes. The Crown argued for a starting point of four years' imprisonment, while defence counsel submitted for a starting point of three years and six months, citing mitigating factors such as the absence of prior convictions, the effect of the offence on McFarland's career, and his genuine remorse. After considering the arguments and relevant case law, the court determined that the appropriate starting point was four years' imprisonment. However, the court reduced the sentence by ten months for the mitigating factors, and a further ten months for McFarland's guilty plea, resulting in a final sentence of two years and four months' imprisonment.

The court emphasised the need for a firm response to violence, taking into account the loss of Mr Asthana's life and the circumstances surrounding the offence. The court recommended that a copy of the psychologist's report be provided to prison authorities to enable the continuation of the recommended psychotherapy.

Orders