Mark Nagel, 19, was jailed today but offered the possibility of home detention after earlier pleading guilty to the manslaughter of Anthony Kelly.
The 61-year-old died after being kicked in the face on October 18 last year.
In court, Kelly’s son, who is in his early 20s, said he would never be able to do the things a son should be able to do with his father.
In a victim impact statement, he said his father would never be able to have a pint with him at the pub, watch him get married or watch his grandchildren grow up. Most importantly, he would never be able to hug him or tell him he loves him.
Kelly’s son said that, at 21, people should be out with their friends having a laugh. Instead, he was sitting at his father’s hospital bed, praying he would wake up after the attack.
He said he suffered flashbacks almost every night of watching his father pass away. For months afterwards, he did nothing but get home from work, sit in his car and cry before going inside to hug his mother.
“A part of me will be broken for the rest of my life,” he said during the sentencing in the High Court at Christchurch.
“In my opinion, whatever you do with your life will never come close to the pain and suffering you caused. My father was a good man who loved life and had fun. I am proud to be his son.”
Kelly’s brother had his statement read by the prosecutor, while he stared directly at Nagel in the dock.
“What you did will be with you for the rest of your life. You will never escape it.”
He said he had waited a long time for this moment to face the man who killed his brother.
The family had to make the “heart-wrenching” decision to turn off Kelly’s life support, stating he fought to live up until the very end.
He expressed sympathy for Nagel’s parents, who now must live knowing that their son took away the life of an innocent man.
He said the family spoke to Kelly while he was in a coma, not knowing if he could hear any of them. Now, he said, he would never be able to speak to his brother again.
A third victim impact statement, written by Kelly’s former partner, said she was heartbroken as she would never have the opportunity to reconcile with him. She said he died thinking she hated him when in reality she loved him.
She said Nagel wanted to be a “big man and a hero” by attacking Kelly, to look cool in front of his peers. “How dare you do this to any person for your own gain.”
The fatal kick
According to the summary of facts, Kelly was at the Christchurch Central Bus Exchange, where he was asked by security staff to leave about 6.15pm on October 18 last year.
Kelly walked north on Colombo St before walking into Cashel Mall. Nagel and his associates followed as they believed Kelly had been taking photos of them on his phone.
About 6.20pm, Nagel and his associates began to engage with Kelly outside Ballantynes department store.
Kelly tried to walk away but one of the group approached him, causing Kelly to swing a punch in self-defence. The person then kicked Kelly in the shin.
Nagel walked through the group, approached Kelly and kicked him in the face with his right foot, using a martial arts-style kick.
Kelly immediately lost consciousness and fell to the ground, where his head hit the pavement.
Nagel and his group fled back towards the bus exchange. As they ran, Nagel high-fived his associate who had kicked Kelly in the shin, before the pair left on separate buses.
Members of the public attempted CPR on Kelly until emergency services arrived and took him to hospital, where he was put in an induced coma.
Ten days later, at 11.04am, Kelly died from his injuries.
When questioned by police, Nagel admitted kicking Kelly in the face because he wanted him to delete the photos on his phone. Police found no evidence that Kelly was taking photos of the group.
A ‘split-second decision’
Crown prosecutor Mitch McLenaghan said audio from the attack, which was filmed, was “utterly chilling” and Kelly was significantly outnumbered.
Nagel must have known serious injury would occur and was intended as he kicked Kelly with force to the head. He said prison was the only suitable outcome.
Nagel’s lawyer, Trudi Aickin, addressed Kelly’s family, saying her client wished to apologise truly to them for the harm he had caused and wanted to face them in a restorative justice meeting.
Nagel would have to live with what he did for the rest of his life and was focused on changing himself, she said.
Nagel was supported in court by his father but his mother felt she could not be there.
Aickin said Nagel had written a letter of apology to Kelly’s family but it had not been passed on.
When she broke the news to Nagel that Kelly had died, he “broke down” and was incredibly distressed and “psychologically very fragile”, she said.
She described the attack as a “split-second decision” and said Nagel was “caught up in the moment” but had “matured” as a result of his actions.
She asked the judge to give Nagel discounts for his youth, remorse and rehabilitation prospects, saying he was doing everything he could in his current position to move forward and not end up back before the courts when he is released.
‘A man with a zest for life’
Justice Rachel Dunningham acknowledged Kelly’s friends and family and said it was clear he was very loved after reading through the victim impact statements.
“I have a picture of a man with a zest for life who gave to others.”
She said Nagel “clearly had potential” as he had completed his NCEA credits and held down part-time jobs but things derailed for him when he became involved with the wrong crowd after spending time at the bus exchange.
The court heard Nagel was born in South Africa and was adopted before emigrating to New Zealand with his adoptive parents when he was 8.
Justice Dunningham said that, as the attack was filmed, it was not spontaneous. Kelly “could not outrun you and he was surrounded”.
She allowed Nagel a total discount of 55 per cent for his youth, guilty pleas, personal background, remorse and rehabilitation potential. This took the sentence to one of two years, which could be converted to home detention.
As the judge began to discuss the possibility of home detention, Kelly’s son walked out of court, followed by others.
Justice Dunningham sentenced Nagel to two years’ imprisonment and granted him leave to apply for home detention.
- By Emily Moorhouse
Open Justice multimedia journalist, Christchurch
