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Home detention made available for young ‘single punch’ offender

8 Mar 2024

| Author: Sonia Pinto

Mark Nagel was charged with the manslaughter of 61-year-old Tony Kelly. Nagel first interacted with Kelly at the Christchurch bus exchange on 18 October 2022. Nagel was under the impression that Kelly had been taking photographs of him and his friends, although there was no evidence to support his claims.

Nagel and his friends followed Kelly out of the bus exchange. When Kelly realised he was being followed, he attempted to walk away from the group but one of Nagel’s friends continued to follow him. Kelly, in an attempt to defend himself, tried to punch the person who had followed him. However, this person adopted a fighting stance and kicked Kelly in the shins. Nagel then walked quickly towards Kelly and kicked him squarely in the face with a martial arts-style kick. Kelly immediately lost consciousness and fell to the ground where his head hit the footpath. Nagel and his associates then fled towards the bus exchange. Before departing on their separate buses, the group of friends slapped hands together in a congratulatory gesture.

Several members of the public tried to perform CPR on Kelly until emergency services arrived. Due to his injuries, he was placed in an induced coma. Kelly died when his life support was withdrawn 10 days after the attack.

Dunningham J commented there were no tariff cases for manslaughter as there was such a wide range of circumstances in which death could occur from an unlawful act. She referred to the Taueki factors, which can be used where serious injury is intended. Her Honour reasoned that there was a deliberate forceful attack to the head made by Nagel. Some premeditation was present, although it wasn’t significant because CCTV footage showed Nagel following the victim with the intention of having it out with him. Moreover, the fact that one of Nagel’s associates also filmed the attack on camera suggested it was not completely spontaneous.

The judge considered the attack to the head, the amplified threat of a large group of people, the fact that the victim did not see Nagel’s attack coming because he was facing another attacker, and the conduct after the attack to be aggravating features.

The starting point in Taueki was 5 years’ imprisonment. However, there were several other cases brought forward by defence counsel and prosecution that were comparable with some different and some similar circumstances. Having regard to some of them, including Murray v R, R v Williams, and R v Faletolu, the court proposed a starting point of 4 years and 6 months.

Dunningham J had a thorough psychologist report on Nagel, a pre-sentence report, and a prison counsellor’s letter. As a young man, Nagel was deemed as someone with potential, having achieved some NCEA level 2 credits and having held down jobs with an offer of employment from his father’s employer. He also had strong family support.

On account of these mitigating factors, his age, his remorse, rehabilitative potential and his early guilty plea, Nagel was entitled to “significant” discounts, defence counsel submitted. While the Crown accepted 20% discounts for his youth and guilty plea, it was “less positive” about the other potential entitlements.

The court permitted a 25% discount for Nagel entering a guilty plea at the first available opportunity and 20% for his youth and lack of previous convictions. What was in contention were the other potential discounts. A discount of “at most” 5% was given for the “rather indirect link” between Nagel’s ADHD, which contributed to his propensity to use aggression to deal with interpersonal confrontation, and his offending.

On Nagel’s remorse, the court accepted his statements that he wanted to stay out of trouble and do everything he could to get out as soon as possible. A discount of 5% was given.

In total, discounts of 55% decreased the starting point to two years’ imprisonment, making a sentence of home detention available. Because of a delay until his sentencing, Nagel had spent several months in prison and Dunningham J understood he didn’t want to return there. The court accepted his rehabilitation would be better served on home detention.

“Mr Nagel, you have got choices. That is not something your victim has. You have taken that away from him. Your parents were right to be concerned about your behaviour and your associates,” Dunningham J said. “I hope you see that now. Use the choices you have, and the support you are being given, to do something worthwhile with your life.”


Applicable principles: sentencing for “single punch” manslaughter cases – whether serious injury is intended – pre-meditation involved – vulnerable victims – application of Taueki sentencing bands – assessment of culpability with reference to comparable cases – aggravating and mitigating factors – multiple attackers – post-attack conduct – rehabilitative potential.


Held: Nagel was sentenced to 2 years’ imprisonment, with leave to apply for home detention.


Note: On 13 December 2023, Dunningham J granted Nagel’s application to substitute the balance of his five-month prison sentence with home detention. The court noted Nagel had shown a commitment to his rehabilitation while in prison, by applying himself to a range of courses and completing them. And nothing had happened in the intervening time to warrant declining the application.


R v Nagel [2023] NZHC 2908.

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