R v Nagel

[2023] NZHC 3677

ORDER PROHIBITING PUBLICATION OF THE ADDRESS AT WHICH HOME DETENTION IS TO BE SERVED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-7259

[2023] NZHC 3677

THE KING

v

MARK NAGEL

Hearing:	13 December 2023
Appearances:	M G McClenaghan for Crown T Aickin for Defendant
Judgment:	13 December 2023

JUDGMENT OF DUNNINGHAM J

[1]    On 17 October 2023, I sentenced Mr Nagel to two years’ imprisonment on a charge of the manslaughter of Tony Kelly. I also granted him leave to apply for home detention, noting his youth, his remorse and his rehabilitative potential. At issue today, is whether I should allow Mr Nagel to serve the balance of his sentence on home detention, noting that he has already served seven months in prison, before this application is being heard.

R v NAGEL [2023] NZHC 3677 [13 December 2023]

[2]    Ms Aickin, counsel for Mr Nagel, proposes an address for home detention. In support of the application, she points out that Mr Nagel served several months of EM bail at an address with the same occupants and complied with his bail conditions at all times. He has also demonstrated his willingness to engage in rehabilitation in the community in the event he is granted home detention, as he has engaged in, and completed, a range of courses and training while in custody at Christchurch Men’s Prison. These include courses aimed at personal development and courses aimed at giving Mr Nagel vocational skills.

[3]    Ms Aickin points out that under s 80A of the Sentencing Act, there are a number of matters the Court must be satisfied of before sentencing an applicant to home detention. In this case, she says the requirements have been met, with both the proposed address, and the applicant, having been assessed as suitable for such a sentence.

[4]    I am also in receipt of a report from a probation officer as to the appropriateness of Mr Nagel’s sentence now being converted to one of home detention. That report confirms that Mr Nagel would be well supported at the home detention address, that he is currently completing counselling while in custody, and he is deemed suitable to serve a sentence of home detention.

[5]    The only condition which the probation officer would specifically seek to have imposed is a prohibition on entering the central city if Mr Nagel was permitted to leave the home detention address. This is to reflect that the offending was committed in the vicinity of the Bus Exchange in the central city. Further conditions which are proposed are that he not possess or consume alcohol and drugs, that he engage in all recommended programmes, including counselling, that he not contact the victims of his offending and that he abide by a deportation notice as directed by Immigration New Zealand. I also consider it important that he not have any contact with the youths who were with him when he offended noting that his associates were identified as a factor contributing to his offending and I would see that as a further condition on such a sentence.

[6]    Mr McClenaghan, for the Crown, opposes the sentence being converted to one of home detention, saying the Crown maintains its position that the only appropriate sentence is one of imprisonment. In support of this, the Crown refers to the decision in R v Palmer, where a one-punch manslaughter was committed by a young offender, but where Davidson J arrived at a sentence of 22 months’ imprisonment but did not grant home detention.1

[7]    I have read that decision, and I accept that in many ways it is a parallel case, although the defendant in that case  had  also  breached  his  bail  conditions  on  three occasions.  However, that was the decision made at the initial sentencing of   Mr Palmer. Here, I have sentenced Mr Nagel to a prison sentence which he has now served seven months of. There is a considerable element of denunciation and deterrence in having served that part of the sentence. I also note that Mr Nagel’s circumstances are different in that he is faces a further significant penalty as a consequence of his offending in that he is facing a deportation notice from Immigration New Zealand.

[8]    Today, I am simply considering whether the balance of the sentence should now be converted to home detention pursuant to the leave granted. In my view, nothing has happened between sentencing and now, which would warrant declining that application. To the contrary, Mr Nagel has shown a commitment while in prison to his rehabilitation by applying himself to a range of courses and completing them, reinforcing my initial view of his rehabilitative prospects.

[9]    Accordingly, I am satisfied that the application to substitute a sentence of home detention should be granted. As Mr Nagel has served seven months of his prison sentence having pleaded guilty on 12 May 2023, he would be eligible for release in five months, I grant the application and substitute the balance of his sentence with a sentence of five months’ home detention.

[10]   It will be served on the conditions set out in the pre-sentence report, but with the additional condition that he not associate with or contact any of the young people who were present with him when he offended.

1      R v Palmer [2016] NZHC 1962.

[11]   I also make an order prohibiting publication of the address at which home detention is to be served.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
T Aickin, Barrister, Christchurch