R v Fernyhough [2014] NZHC 2298 (22 September 2014)

Last Updated: 23 February 2015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-012-001195 [2014] NZHC 2298

THE QUEEN

v

_{STEPHEN ANTHONY FERNYHOUGH}

Hearing:	22 September 2014
Appearances:	R P Bates for Crown J A Westgate for Defendant
Judgment:	22 September 2014

_{SENTENCING REMARKS OF GENDALL J}

[1] Mr Fernyhough, you appear for sentence having pleaded guilty to an amended charge of manslaughter for which you were convicted in this Court on

30 July 2014. As I have noted, you also face one charge of wilful damage which is still outstanding and I leave that aspect on one side. This sentencing therefore relates only to the charge of manslaughter. The maximum penalty for that offence is life imprisonment.

Background facts

[2] I turn first to the background facts. On 26 April 2014 Mr Fernyhough you were socialising in the Dunedin town centre with some associates. The victim, Mr Court was also in the town centre with some friends and family members. At about 1:30 a.m. on 27 April 2014 you and Mr Court with your respective associates

_{were in the Craft Bar. You went to the male toilet area of the bar and a short time}

R v FERNYHOUGH [2014] NZHC 2298 [22 September 2014]

later Mr Court also entered the toilet and engaged in what was said to be a light- hearted conversation with you.

[3] For some unknown reason the conversation turned aggressive. You and Mr Court became involved in a physical altercation with both of you grabbing at each other’s clothing and struggling with each other. You, Mr Fernyhough, then got behind Mr Court who was on his hands and knees facing the ground, and you applied a choker style hold on him by placing your arm around Mr Court’s throat area. You applied pressure to this hold and Mr Court quickly became unconscious. You continued to apply this hold it is said for between 20 and 40 seconds before releasing the hold. When you released the hold Mr Court fell to the ground.

[4] You then left the toilet area uttering a comment similar to “Don’t mess with the wee man”.

[5] After leaving the Craft Bar with your associates you went to nearby premises, the Brimstone Bar.

[6] Other occupants of the toilet in the meantime went to Mr Court’s assistance and found him in an unconscious state with his face and lips turning a blue colour. He was unresponsive. Attempts were made to apply first aid and to resuscitate him, but these were unsuccessful. A short time later ambulance staff pronounced Mr Court dead. The post-mortem indicated that the cause of death was “sudden death in a 35 year old man following a neck hold”. The post-mortem outlined the findings of the autopsy which included bruising along the left jaw line and in the fatty tissue of the skin over the outer end of the left collar bone and at the attachment of one of the neck muscles to the left collar bone. No injury was seen of the deeper structures of the neck. These findings were consistent with witness statements indicating that you Mr Fernyhough applied a neck hold on Mr Court and after a few seconds he appeared to stop struggling. The post-mortem went on to state that a rapid loss of consciousness and death can be seen with such neck holds.

[7] As to the other wilful damage charge, at the Brimstone Bar, Mr Fernyhough, you became involved in a second altercation with another male. During this

altercation you caused the window at a neighbouring bar, the Isis Bar, to be damaged. Police arrested you for damaging the window at the Isis Bar at which time you refused to make any statement. I leave all those matters on one side however.

[8] The next day, on 28 April 214, when you were interviewed by police in relation to Mr Court’s death, you admitted to being involved in the altercation with Mr Court and placing him in a headlock. You stated however that you did so to protect yourself and that you did not intend to kill the victim.

Victim impact statements

[9] I now turn to the victim impact statements which are before the Court. I have read the four impact statements, one from Mr Court’s father, one from his mother one from a cousin, and one from an uncle. They make tragic reading. Without exception they have been prepared with considerable thought and great care. One thing that comes through in these statements is the huge loss of a loved son and relative in a family which has already suffered considerable misfortune. Without exception they speak from the heart of the loss that this family has suffered as a result of your actions. I have not, and deliberately so, repeated details of the victim impact statements which I have read but I do assure all family members involved that I have read them with some care and I am obliged by the law to reflect in my sentence the plight which the death of this young man has brought to you. And I thank you for what must have been a very difficult job in putting together those victim impact statements for me. These are always a very distressing component of any trial or sentencing. The impact of your actions Mr Fernyhough has affected Mr Court’s family in a very marked and long lasting way.

Pre-sentence report

[10] Turning to the pre-sentence report, I have read that report provided to the Court. This shows Mr Fernyhough that you are now 26 years of age. It is evident that you had a difficult upbringing and that you were placed with Child Youth & Family at a young age for care and protection. In 2005 you incurred multiple convictions in the youth jurisdiction and since that time you have 58 convictions for offences including burglary, dishonesty, aggression, disorder, violence, drink driving

and non-compliance with community based sentences. The probation officer identifies as factors contributing to your offending alcohol and drug abuse, a capacity for violence, lifestyle choice, and an attitude that supports offending to meet your personal requirements and impulsiveness. It is suggested that there is a need to address these factors through psychological intervention and departmental programmes to address your alcohol and substance abuse, and your management and problem solving deficiencies. The probation officer states that based on the pattern of your convictions your likelihood of further offending is assessed as high, you have a recidivist pattern of offending and you have a high risk of harm to others.

[11] To your credit, however, the pre-sentence report does note that you have said you feel very sorry for what Mr Court’s family are going through, you have written letters of apology to the family and you maintain you would do anything to make up for what you have done.

Starting point

[12] As to a starting point, in sentencing you today Mr Fernyhough the Sentencing Act requires that I keep in mind a number of purposes and principles. In particular the sentence I am to impose on you needs to hold you to account for the harm you have caused. The sentence needs to denounce your actions which have resulted in the taking of a life and provide deterrence both to you and generally. I am also mindful of the need to provide for your rehabilitation while being cognisant of the seriousness of the offence you have committed.

[13] In doing this I am required to determine what is called a starting point in terms of the sentence that should be imposed. As I have already noted manslaughter carries a maximum sentence of life imprisonment. Imprisonment as you will appreciate is inevitable. The question for me is the length of that sentence having regard to the particular circumstances of both the offence and your personal situation. Mr Bates for the Crown contends that I should adopt a starting point of between seven to seven and a half years’ imprisonment with a final sentence imposed of between five and a half to six years’ imprisonment. But your counsel Mr Fernyhough, Mr Westgate, seeks a starting point of no more than five years’

imprisonment and a final sentence of no more than three years, seven months’

imprisonment.

[14] Circumstances in which the crime of manslaughter is committed vary widely. For this reason there is no sentencing tariff. Each case must be considered on its own facts. What all cases have in common however is that death has been an unintended consequence of an unlawful act. In sentencing this Court must take into account Mr Fernyhough that you did not intend to cause death while recognising that

a life has been lost.¹ The extent of the harm resulting from the offence however must

be taken into account in terms of s 9(d) of the Sentencing Act.

[15] In any case involving serious violence, issues of deterrence and denunciation are to the forefront. The Courts must ensure that offenders who commit these types of crimes receive a sentence that properly deters and denounces their conduct.

[16] At the same time, however, it is necessary to select a sentence that is broadly consistent with those imposed in other similar cases. It is also necessary for me to impose a sentence that provides, so far as is possible, for your rehabilitation and reintegration into the community, Mr Fernyhough.

[17] In manslaughter cases, similar to this one, the Court of Appeal has said that referring to the methodology in a case called R v Taueki² may be an appropriate reference point before cross-checking the starting point against sentences to be imposed.³

[18] Although the Court of Appeal has warned that a cautious approach is always required in deciding the applicability of Taueki in any given case, the situation in this case is one in which, in my view, reference to the Taueki guidelines is justified.⁴

[19] I am satisfied that reference to those Taueki guidelines is justified because you Mr Fernyhough applied a choker hold to Mr Court for some 20 to 40 seconds

¹ _{R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008 at [25].}

² _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.}

³ _{R v Tai [2010] NZCA 598 at [11].}

⁴ R v Ioata [2013] NZCA 235 at [25].

after Mr Court had fallen unconscious within the first few seconds of your applying that choker hold. Your actions in my view clearly involved serious violence.

[20] There is a Taueki factor also present in this case. That factor is the serious injury suffered by Mr Court, which of course was death. Mr Fernyhough you applied a choker hold for an extended period of time. You intended to cause serious harm to Mr Court when you applied that choker hold.⁵ And after the event you simply walked away without any thought or check on Mr Court to see how seriously he was injured.

[21] There is also however a possible mitigating factor in terms of the Taueki guidelines that is relevant to your offending here. The summary of facts states that there was a struggle between you Mr Fernyhough and Mr Court, as both of you grabbed at each other’s clothes and were unsteady on your feet. Therefore I find that there was either some element of provocative conduct or excessive self-defence in your actions Mr Fernyhough, which mitigates your culpability to an extent.

[22] Although a sole aggravating factor would normally attract a starting point under Taueki within band one, I find the Court of Appeal’s assessment that band one is not an appropriate band for offences of extreme violence or violence which is actually life threatening applicable in the present case.⁶ Mr Fernyhough, as I have said, you applied a choker hold for an extended period of time, which caused Mr Court’s death. This feature of the offending is enough to attract a starting point

within band two, which is five to ten years.

Comparable cases

[23] Similar cases to the present case are what are said to be “one-punch” manslaughter cases where the punch itself can be identified as the single cause of death.⁷ The reasons for this analogy are:⁸

_{(a) The intoxicated state of both you Mr Fernyhough and Mr Court;}

⁵ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [31(c)].}

⁶ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [36].}

⁷ _{R v Cooper [2014] NZCA 275.}

⁸ R v Carmichael HC Tauranga CRI-2007-070-2603, 6 September 2007 at [33]-[34].

(b) The street-type altercation that occurred here involving the use of your personal strength (but not weapons); and

(c) An accidental death resulting generally from the force of the blow.

[24] This analogy has been drawn before to “one-punch” cases by Mallon J in a case R v King involving a defendant’s dangerous hold around the deceased’s neck and shoving the deceased who fell onto the ground and hit his head.⁹

[25] The appropriate starting point for “one-punch” cases is usually between three and a half to four years’ imprisonment.¹⁰

[26] However the Court of Appeal has held that a starting point may need to be increased significantly where culpability is higher as a result of an intention to cause really serious harm, the nature of the serious harm actually caused and the fact that death had resulted.¹¹

[27] I find your offending in this case Mr Fernyhough to be significantly more serious for the following reasons:¹²

(a) The force you applied was sustained and exceeded that of one punch.

The choker hold you applied was deliberate and you maintained that hold for between 20 and 40 seconds after Mr Court appeared to fall unconscious.

(b) The choker hold was clearly a very powerful hold, which was sufficient to render Mr Court unconscious after a few seconds. The post mortem identifies the choker hold as the cause of death.

(c) With the choker hold you targeted Mr Court’s head and neck areas

_{directly and you ought to have appreciated that if you rendered}

⁹ _{R v King HC Blenheim CRI-2009-009-17816, 9 February 2011.}

¹⁰ _{R v Carmichael, above n 3, at [34].}

¹¹ R v Cooper, above n 3, at [13]; citing R v Murray [2013] NZCA 177 at [21], referring to R v Tai

_{[2010] NZCA 598 at [14]- [15].}

¹² Based on the analysis by the Court of Appeal in Murray v R [2013] NZCA 177.

Mr Court unconscious, he could suffer serious injury to his body as a result.

(d) You must at least have intended that Mr Court would be significantly incapacitated, as you were heard to be saying “Don’t mess with the wee man” when you left the bar.

(e) You then left Mr Court on the ground and proceeded to go to another bar with your associates. You made no attempt to ascertain the extent of his injuries. In fact, you became involved in another physical altercation at Brimstone Bar.

[28] Therefore I would adopt a starting point of six years’ imprisonment to reflect the overall seriousness of the offending.

Personal aggravating factors

[29] I turn now to personal aggravating factors. A sentencing Judge may increase the starting point to take into account the number, seriousness, date, relevance and nature of any previous convictions.¹³

[30] Mr Fernyhough, you have 76 previous convictions, including about 18 from the Youth Court. You have committed a range of offences involving some sort of physical altercation with another person spanning from 2006 until 2014. All this reveals a pattern of intimidating and disorderly behaviour towards other persons.

[31] Although the Courts must be conscious of not punishing you Mr Fernyhough twice for previous offending, the amount of convictions you have accumulated at the age of 26 is of serious concern. The aggregate of the uplift must bear some reasonable relationship or proportionality to the starting point which is the otherwise

_{appropriate sentence for the circumstances of this offending.}¹⁴

¹³ _{Sentencing Act 2002, s 9(j).}

¹⁴ Taylor v R [2012] NZCA 332 at [46].

[32] In my assessment an uplift of nine months is justified in the circumstances of this case. This would bring the adjusted starting point to one of six years, nine months’ imprisonment.

Mitigating factors

[33] Mr Fernyhough, you entered the guilty plea once the charge was amended from murder to one of manslaughter, but only when that occurred. This has spared Mr Court’s family further Court appearances. In your earlier interview with the police, you admitted that you had applied the choker hold to Mr Court’s neck. In these circumstances it is my opinion that you should receive a discount of 20% for your guilty plea.

[34] As to other mitigating factors, you have shown some remorse. A letter of apology has been written and you have offered to attend a restorative justice conference for which in my view you should receive a further 5% discount.

Conclusion

[35] With a total discount of 25% this brings the end sentence to one of five years’ imprisonment. On the charge of manslaughter of Mr Court, Mr Fernyhough you are sentenced to five years’ imprisonment. There is to be no minimum period of imprisonment imposed.

...................................................

Gendall J

Solicitors:

J A Westgate, Dunedin

Wilkinson Adams Lawyers, Dunedin