MYRON ROBERT ALF FELISE v R [2020] NZCA 60

MYRON ROBERT ALF FELISE v R [2020] NZCA 60 [16 March 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA375/2019[2020] NZCA 60BETWEEN MYRON ROBERT ALF FELISEAppellantAND THE QUEENRespondentHearing: 24 February 2020Court: Miller, Dobson and Moore JJCounsel: E P Priest for AppellantB Dickey and E J Smith for RespondentJudgment: 16 March 2020 at 10.00 amJUDGMENT OF THE COURTA The application for extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Felise appeals the sentence of seven years imprisonment, with a minimumperiod of three years and six months imprisonment, imposed on him for themanslaughter of Eli Holtz.1 He complains that the sentencing judge adopted a startingpoint that was too high, denied him a discount for his post-traumatic stress disorder1 R v Felise [2019] NZHC 341.(PTSD), and overlooked a causal link between the offending and his traumatic anddeprived background.The facts[2] The summary of facts records that Mr Holtz, aged 18, was visiting Aucklandfrom Whangarei with a friend on 27 January 2018. About 3.15am they were drivingdown Wellesley Street in Central Auckland, with Mr Holtz in the front passenger seat.Mr Felise was standing with a group of friends on the side of the road. As the cardrove past Mr Holtz fired a single water pellet from a toy rifle at Mr Felise, hittinghim on his lower back. This foolish act angered Mr Felise, understandably, but it didnot injure him.[3] The car stopped at the traffic lights at the intersection of Wellesley and QueenStreets. Seeing this, Mr Felise walked towards it, brushing aside an associate whotried to dissuade him. On reaching the passenger's side of the car, Mr Felise openedthe door and punched Mr Holtz in the face, connecting at least once. He seized thewater pellet gun and broke it on Mr Holtz, and punched him in the face repeatedly.Mr Holtz was trapped in the car and did not fight back. He lost consciousness duringthe attack, which did not stop until Mr Felise's associate pulled him away from thecar. They left the driver to attend to Mr Holtz, who never regained consciousness anddied in hospital after life support systems were removed.[4] The incident was recorded on a street camera. The footage conveys not onlythe brutality of the attack but also an air of deliberation.[5] Mr Felise was grossly intoxicated at the time. He admitted that he hadconsumed between 10 and 15 shots of spirits and at least 24 bottles of premixed readyto drink beverages, as well as several beers.[6] A guilty plea was entered two weeks before the trial was to begin.Personal circumstances[7] Mr Felise was 31 years old at sentencing. He was raised in Otara in a tight-knitand supportive family in which he appeared to have a healthy and stable upbringingand developed a strong work ethic. He is married, with children, and enjoys strongsupport from friends and family.[8] However, the environment in which he was raised included physical discipline.From the age of 13 he identified as a member of the Bloods Gang. He disclosed thathe has taken part in over 40 incidents of serious violence in a gang context. He hasalso been a binge drinker from an early age.[9] In 2010 Mr Felise, who was intoxicated, held up a liquor store with fiveaccomplices. They committed the offence because they had run out of drink. A manwas killed by one of the co-offenders and Mr Felise was convicted of aggravatedrobbery. On his release he ended his association with gangs and managed to gowithout alcohol for extended periods. He underwent treatment for substance abuse.However, the treatment was not ultimately successful. He resumed using alcohol inlarge quantities.The sentencing[10] After recounting the background, van Bohemen J correctly looked toR v Taueki for guidance.2 He noted a number of aggravating factors of the offending:the violence, although not extreme, was gratuitous, it involved multiple punches to thehead, and the blows continued after Mr Holtz lost consciousness. The injuries inflictedwere very severe, ultimately resulting in death. Mr Holtz was vulnerable because hewas restrained by a seatbelt and confined to the car. There were no mitigatingcircumstances of the offending. The Judge did not accept that there was anyprovocation. Having viewed the footage, he found it clear that Mr Felise never feltunder threat and the attack was unwarranted and disproportionate to Mr Holtz's foolishprank. The Judge adopted a starting point in the middle of Band two in Taueki: eight2 R v Taueki [2005] 3 NZLR 372 (CA).years imprisonment. The starting point was uplifted by 10 per cent for Mr Felise'shistory of violent offending.[11] In mitigation, the Judge made a modest allowance of four months for remorse,which he accepted was genuine. That might have been greater had Mr Felise notdelayed the entry of a guilty plea until just two weeks before trial, in the face of anextremely strong Crown case. The discount for the guilty plea was 10 per cent.[12] Mr Felise sought a discount for severe alcohol disorder and post-traumaticstress disorder as a result of various factors including traumatic loss and his history ofviolent gang involvement. He contended that PTSD played a causal role in theoffending, citing a psychological report which found that:In his heavily intoxicated state, with an impaired capacity for decision making,self-control, judgement and effective behavioural responding, it appears thatMr Felise experienced a PTSD exaggerated startle reflex in response to beingshot, triggering an uncontrolled angry outburst response.[13] The Judge did not accept that there was a causal connection between PTSDand the offending, finding it more likely that gross intoxication fuelled the attack onMr Holtz. The Judge did make an allowance for restrictive bail and for familycircumstances, resulting in an effective sentence of seven years imprisonment.[14] The Judge imposed a 50 per cent minimum period of imprisonment because hefound it necessary to hold Mr Felise accountable for the harm done, to denounce hisconduct, and to deter him and protect the community. He remarked that Mr Felise hadnot learned from his experience the last time, referring to the conviction and sentencefor aggravated robbery, and urged him to reform this time.[15] We turn to the grounds of appeal.Starting point[16] Ms Priest submitted that the starting point of eight years was too high,suggesting that the Judge double-counted Taueki aggravating factors by referringtwice to violence done to Mr Holtz's head, and pointing to lower starting points formore serious violence in other cases.3[17] We do not think the Judge double-counted aggravating factors, and we agreewith his assessment of the seriousness of the offending. We have watched the CCTVfootage. It conveys serious and measured violence, grossly disproportionate toMr Holtz's prank. In our view the most comparable cases are R v Tai,4 R v Edmonds,5and Te Pana v R.6 It is true that lower starting points have been adopted in some ofthe authorities cited by counsel, but each is readily distinguished. By way ofillustration, in R v Harrington the violence was similar but the defendant hadattempted to perform CPR and he handed himself in to police a short time afterward.We are not persuaded that the starting point was too high.Mental illness and the starting point[18] Ms Priest submitted that Mr Felise's PTSD reduced his culpability, referringto the psychological report. She noted that Mr Felise scored in the highest ranges onseveral criteria for PTSD and his symptoms in the months prior to the sentencing weresevere. His history of trauma included violent victimisation since childhood, his ownuse of violence, a vehicle accident at aged 14, witnessing a suicide, and recent familylosses including a miscarriage. She cited the psychologist's opinion that Mr Felisemay have experienced a "PTSD exaggerated startle reflex response".[19] An allowance can be made for mental illness at the first stage of the sentencinganalysis if it has a causal connection to the offending.7 Van Bohemen J did not acceptthat it did, and we agree. The psychologist's report is speculative and overlooks thecausal effect of intoxication when expressing an opinion about causation. As notedearlier, the camera footage conveys measured action rather than a reflex response, andit shows that Mr Felise had adequate opportunity to reflect on his actions. He brushed3 R v Harrington [2017] NZHC 170; R v Edmonds [2015] NZHC 3254; R v Rangi [2015] NZHC1879; and R v Evans-Whatarangi HC Hamilton CRI-2008-068-609, 3 December 2009.4 R v Tai [2010] NZCA 598.5 R v Edmonds, above n 3.6 Te Pana v R [2014] NZCA 55; and R v Tepana [2013] NZHC 1592.7 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[70].aside an associate who tried to stop him. He was under no threat when he attackedMr Holtz.Personal mitigating factors[20] Ms Priest next argued that the Judge was wrong to deny Mr Felise a discountfor mental illness as a personal mitigating factor under s 8(h) of the Sentencing Act2002, and for his personal, cultural and familial background. She invited us toconsider the psychological report as a s 27 report, and we have done so.[21] As we understand it, counsel sought to identify a linkage between Mr Felise'spersonal, family and cultural background and his PTSD, so demonstrating that hisbackground "related to the commission of the offence".8 This argument attributesoffending to a specific condition, PTSD, and so requires some evidence of a causalconnection between them.9 We observe that that may distinguish this case from othersin which offenders plead their backgrounds in mitigation.10[22] There may be more than one cause, and the weight attributed to each is a matterof fact and degree. In this case, as explained above, there is nothing in the record toshow that PTSD contributed at all to the offending. On the facts, we agree with theJudge that gross intoxication was the likely trigger. The legislation precludes adiscount for that, on the premise that the offender must take responsibility for theantecedent decision to drink.11 The upshot is that Mr Felise cannot attribute theoffence to anything other than his willed action.[23] We record for completeness that the record does not identify a familial orcultural cause of the offending either. On the material before us, Mr Felise had a stableupbringing in a supportive family.[24] In these circumstances, we prefer Ms Smith's submission for the Crown thatthe discounts given for personal factors were adequate in this case. A further discount8 Sentencing Act 2002, s 27.9 As a mitigating fact, the onus is on the offender: Sentencing Act, s 24(2)(d).10 See for example Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; and Arona vR [2018] NZCA 427.11 Sentencing Act, s 9(3).might have been allowed for rehabilitative potential, but for reasons given below wewould not disturb the modest allowance the Judge made for that. A discount mightalso have been given if the otherwise appropriate sentence would bedisproportionately harsh, but that is not easily established and the evidence does notestablish it here.12Minimum period of imprisonment[25] Ms Priest submitted that the minimum period of imprisonment was notwarranted in this case. She emphasised that Mr Felise has severed his gangconnections and submitted that he has prospects of rehabilitation once treated forPTSD.[26] We accept Mr Felise would likely benefit from treatment for PTSD and furthertreatment for substance abuse. We have noted his strong family support, and we acceptthat he has potential for rehabilitation. We commend his decision to sever gangconnections. Although he admitted to a long history of violence, he has only one pastconviction for it.[27] But we are not persuaded that the Judge was wrong to impose a minimumperiod of 50 per cent in this case. Mr Felise had fallen back into old patterns ofbehaviour only three years after being released from prison for a very serious violentoffence in which he was fuelled by drink. He failed to absorb and apply the lessonsof that experience and the treatment he received for substance abuse.These considerations supply the necessary additional need for accountability,denunciation and deterrence.Decision[28] Mr Felise filed his appeal four months out of time. His application for anextension of time to appeal is granted.12 Sentencing Act, s 8(h). See R v Verschaffelt [2002] 3 NZLR 772 (CA) at [22]–[23]. See alsoCandy v R [2014] NZCA 288 at [12]; and Nixon v R [2016] NZCA 589 at [41]–[48].[29] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent