R v Nagel - [2023] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-7259

[2023] NZHC 2908

THE KING

v

MARK NAGEL

Hearing: 17 October 2023

Appearances:

M G McClenaghan for Crown T Aickin for Defendant

Judgment:

17 October 2023

SENTENCING NOTES OF DUNNINGHAM J

Introduction

[1] Mr Nagel you have pleaded guilty to the charge of manslaughter and you are here today for sentence.

[2] As the lawyers have explained, I will first consider the starting point for sentence. I will do this having regard to the aggravating features of this offending and with regard to comparable, what we call, “single punch” manslaughter cases. I will then consider aggravating and mitigating features which are personal to you, and I will adjust the starting point to reach the final sentence.

R v NAGEL [2023] NZHC 2908 [17 October 2023]

[3] In doing all that, I have to have regard to the principles of the Sentencing Act. I have to hold you accountable for the harm you have done to the victim and the community by your offending. I have got to promote in you a sense of responsibility for, and acknowledgment of, that harm, and I have got to deter you, and others from committing the same or similar offence. However, I also have to, to the extent that is possible when sentencing you, assist you in your rehabilitation and reintegration. In setting the sentence, I must also do my best to impose a sentence that is consistent with the sentences that have been imposed on similar offenders committing similar offences in similar circumstances.

[4] However, before I start that process, I want to acknowledge the friends and family of the victim, Tony Kelly. In particular, I want to acknowledge those of you who have provided victim impact statements. While I will refer to Tony as the victim when I summarise what happened, that is not to detract from the rounded, complex and decent person that you all knew, and that you have described in your statements.

[5] First, I want to acknowledge Mr Kelly’s children, in particular, Ryan’s victim impact statement. It is quite poignant that Ryan is around the same age as you, Mr Nagel, but his life has taken a very different trajectory. He reflected to me on everything that has been taken from him by your actions. As he says, he will never be able to do the things a son should be able to do with their dad. To have a pint with him in the pub, to have him at his wedding, to see him hold his grandchildren, and to watch him to grow into the man he is trying hard to become. He is, quite rightly, proud to be his father’s son.

[6] I have also read the victim impact statement of Judi Smitheram, Tony Kelly’s partner. She did not want it to be read aloud in Court, but I can say it is a rich and detailed account…

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 Nagel

Details

AGLC: R v Nagel [2023] NZHC 2908
Case: [2023] NZHC 2908
Decision Date: 17 October 2023

CaseChat Overview and Summary

The case of R v Nagel involved the defendant, Mark Nagel, who pleaded guilty to manslaughter. The incident occurred on 18 October 2022, when Nagel and his associates confronted the victim, Tony Kelly, at the Christchurch Bus Exchange. Believing Kelly was taking photos of them, Nagel and his group pursued Kelly, leading to a confrontation outside Ballantynes Department Store. During the altercation, Nagel delivered a martial arts-style kick to Kelly's head, causing him to lose consciousness and subsequently die when life support was withdrawn on 28 October 2022. Nagel was sentenced on 17 October 2023, following a hearing where both the Crown and defence presented their arguments.

The primary legal issues the court had to address included determining the appropriate starting point for sentencing, considering both the aggravating and mitigating factors specific to Nagel's case, and finally deciding on the appropriate sentence. The court had to balance holding Nagel accountable for his actions while also considering his background, remorse, and potential for rehabilitation. The court also needed to ensure consistency with sentences imposed in similar cases.

The court began by acknowledging the profound impact of Nagel's actions on Kelly's family and friends, highlighting the loss and pain experienced. In determining the starting point for sentencing, the court considered cases involving single punch manslaughter, where serious injury was not intended, and those where it was. The Crown argued for a higher starting point due to the deliberate and forceful nature of the attack on Kelly's head, while the defence contended for a lower starting point based on cases where serious injury was not intended. The court ultimately settled on a starting point of four years and six months' imprisonment, considering both the Taueki factors and analogous cases.

In assessing mitigating factors, the court took into account Nagel's background, including his adoption, positive early life, and subsequent involvement with a problematic peer group. The court also considered reports indicating Nagel's potential for rehabilitation, his remorse, and his early guilty plea. While the Crown and defence differed on the extent of the discounts, the court awarded a 25% discount for the guilty plea, a 20% discount for youth, and additional smaller discounts for remorse and rehabilitative potential. These discounts reduced the starting point to two years' imprisonment, which could be served as home detention.

In conclusion, Nagel was sentenced to two years' imprisonment with the option to apply for home detention. The court emphasized the gravity of Nagel's actions and the importance of using the support available to him for rehabilitation and reintegration into society.

Orders