R v Blackler

[2018] NZHC 830

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2016-012-002732

[2018] NZHC 830

THE QUEEN

v

JASON KARL BLACKLER

Hearing:	27 April 2018
Appearances:	R P Bates and R D Smith for the Crown M A Stevens for the Defendant
Judgment:	27 April 2018

SENTENCING NOTES OF DUNNINGHAM J

[1]                  Jason Karl Blackler you are here for sentence today, having been found guilty by a jury of the manslaughter of Alan Fahey.

[2]                  The events which gave rise to this charge occurred in October 2016. At the time you were 47, and you had moved into Mr Fahey’s home in 174 Brockville Road, Dunedin, as a flatmate, although you also spent time in the home of your fiancée.

[3]                  During the afternoon of Tuesday 25 October 2016, you and Mr Fahey began drinking together in the lounge of his home. The drinking continued on into the evening, and involved quantities of beer and virtually an entire one litre bottle of a strong spirit, known as Jägermeister.

R v BLACKLER [2018] NZHC 830 [27 April 2018]

[4]                  At some point in the evening Mr Fahey angered you when he made sexual and disparaging comments about your terminally ill sister. You then attacked Mr Fahey in the lounge and struck him multiple times to the head and neck area with your fists.

[5]                  I am satisfied that the evidence of blood spattering indicates that at least one, if not more of these blows was delivered while Mr Fahey was lying on the ground.

[6]                  I note that the Crown raises the possibility that you subdued the victim by strangling him with a singlet. The evidence to support this is that the singlet was found stretched out on the ground underneath the position of Mr Fahey’s neck, and he had a fractured hyoid bone in his throat. However, as Mrs Stevens points out, the medical evidence did not support the suggestion that the singlet had been used as a ligature as there was no sign of petechial haemorrhaging on Mr Fahey nor any visible bruising on his neck. I have therefore not assumed that an attempt at strangulation comprises part of the facts for sentencing.

[7]                  In addition to the fractured hyoid bone, the victim suffered numerous facial injuries. These were of sufficient severity to render Mr Fahey almost unrecognisable, something you yourself said about his injuries to your fiancée on the phone that night. As the jury found, it was as a result of this attack, in combination with the victim’s pre-existing poor coronary health, that the victim died.

[8]                  After the attack, you made some attempt to clean the blood off yourself and then you rang your fiancée disclosing what you believed you had done. At that stage your concern was to cover your tracks and avoid detection. For example, you suggested burning the house down.

[9]                  Your fiancée’s teenage daughter arranged a taxi to collect you and take you back to her place. The following morning, you asked your fiancée and an associate of yours to go to the victim’s house to confirm that he was dead, which they did. Once they got back to the house, they called an ambulance and your associate suggested you hand yourself in and that he would drive you to the Police station.

[10]              However, once in the car with him you did not go straight there, you asked your associate to drive you to various points including your lawyer, your probation officer, a Credit Union and a tobacconist. During this time your associate was in contact via text with the probation officer, informing them where you were and eventually the Police located the two of you at Moray Place where you did accompany the police to the station and agreed to be interviewed.

Pre-sentence report

[11]              The pre-sentence report I have notes that you consider you have lost a “father figure”, in Mr Fahey and you say you are hoping to meet the victim’s family via a restorative justice meeting. However, you also made it clear that you do not accept the jury’s guilty decision and you are of the view that his death was entirely as a result of his underlying medical issues.

[12]              The report also points to you having a lengthy criminal history which includes offending of a violent nature. The writer assesses you as having a high likelihood of reoffending and considers you pose a very high risk of harm to others. He identifies that your alcohol use is a factor in your offending. He also says that you suffered a head injury several years ago which is noted as having an effect on your mood management. You told the report writer that you can lash out angrily and then you return to a normal range of behaviour within a very short period of time.

Victim Impact Statements

[13]I have read the victim impact statements of the friends and family of Mr Fahey.

[14]              It has obviously had a devastating effect on them to lose Alan and to learn just how he died. It has also been hard for them to sit through the trial earlier this year.

[15]              It is clear that Mr Fahey was well loved by all of them and it was consistent with his generosity of spirit that he took you under his wing and allowed you to move into his house and take over much of his personal space with your property.

[16]              Much of your response to the events of that night have focused on its impact on you. You see yourself as a victim. I can only hope that hearing from the other people affected by your actions gives you some insight into the consequences of your actions that night.

Sentencing principles

[17]              In sentencing you today I have to have regard to the purposes and principles of the Sentencing Act.

[18]              The purposes which I think are particularly engaged today are to hold you accountable for the harm done, to promote in you a sense of responsibility for that harm, to provide for the interests of the victims of your offence, to protect the community and to denounce and deter that conduct.

[19]              In applying the relevant sentencing principles, I have to work out how serious the offending is and how culpable or blameworthy you are, and then try to sentence so that I achieve consistency with the sentences given in respect of similar offenders committing similar offences in similar circumstances.

[20]              In this case, as you know, the maximum penalty for manslaughter is life imprisonment. But there is no guideline sentencing decision for manslaughter as it encompasses such a wide range of situations.1 So, the sentence has to ultimately reflect your level of culpability.

[21]              The Court of Appeal has held that in sentencing for manslaughter, the focus should be on the conduct of the offender that was intentional and which created the risk of serious harm, rather than the unintended consequence of death.2 In the Court of Appeal manslaughter case, in R v Tai,3 which counsel have referred to me and which involves serious violence, the Court suggested two approaches could be used. A Judge could refer to the guideline case which you have heard about today of R v Taueki,4 but

1      R v Leuta [2002] 1 NZLR 215 (CA).

2 At [63].

3      R v Tai [2010] NZCA 598.

4      R v Taueki [2005] 3 NZLR 372 (CA).

make an appropriate adjustment for the fact that the consequence of the violence was not just serious injury, but death itself. Alternatively, a Judge could assess culpability by reference to similar manslaughter sentencings. The Court there suggests that it would be appropriate to use both approaches providing a check on each other, and that is how I intend to proceed.

[22]              Using the criteria in Taueki, the Crown submits that there are five aggravating features of your offending:

(a)there was extreme violence to a moderate degree, with numerous blows and at least one delivered to the victim while he was on the ground;

(b)there were attacks to the head to a high degree, as the vast majority of the blows were to the victim’s head;

(c)there was serious injury to a high degree, as the assault was an operative and substantial cause of death, which is the most serious injury;

(d)there was vulnerability to a high degree, as your victim was 66, 5’3”, 76 kilograms, making him older than you and smaller than you. He was also vulnerable at the point when he was knocked to the ground and your assault continued;

(e)the Crown says there was also an abuse of trust to a moderate degree, as the attack was within the victim’s home and perpetrated by a friend and flatmate.

[23]              In terms of mitigating factors, the Crown submits that to the extent the offending was provoked, the provocation, being the disparaging comments he made about your sister, was not of a high level. It also notes that intoxication is not a mitigating factor.

[24]              The Crown therefore submits that your offending would fall within the upper end of band 2 or the lower end of band 3 in Taueki, suggesting a starting point of eight to 10 years’ imprisonment.

[25]              Your lawyer does not comment on this assessment except to note that the Court of Appeal has observed that Taueki would not always be relevant in manslaughter sentencing.5 In her view, it is more useful to look at similar manslaughter cases.

[26]              While I agree with the Crown as to the identified aggravating features of this offending, I would assess the degree of vulnerability as only moderate and, the abuse of trust as less than suggested. This would suggest a starting point in the five to 10 year band as appropriate.

[27]              However, I am somewhat wary of using Taueki in this case, as it assumes a direct connection between the level of violence and the level of injury. Here it is clear that these injuries would not have resulted in the death of a victim who did not have the undisclosed health issues that Mr Fahey had.

[28]              If I turn to consider comparable manslaughter cases, the Crown referred me to a number which involved a degree of violence but unintended death,6 and says that these suggest an appropriate starting point as seven to eight years’ imprisonment.

[29]              Your lawyer, too, referred me to a number of such cases,7 and she said the starting point should be three and a half years. In saying that, she acknowledges that the attacks to the victim’s head are an aggravating factor but in mitigation she says that the victim provoked the attack and the level of intoxication for both of you goes some way to understanding your response. She notes there was no weapon used and she describes the attack as brief and unpremeditated.

[30]              I consider the cases that I have been referred to, which involve a single punch or push, such as R v Paku, R v Tutahi and R v Faletolu, are all less serious than this. This is a case where there were multiple blows causing severe disfigurement to the victim’s face. However, the cases such as R v Ruru and R v Kengike, where the

5      R v Tai, above n 3 at [11].

6      R  v  Tai,  above  n 3;  R v Ruru  CA 371/01, 12  February 2002; R  v Hetherington  CA 28/02,  20 June 2002; R v Kengike [2008] NZCA 32; Turi v R [2014] NZCA 254; R v Taunga [2017] NZHC 1680 and R v Faletolu [2014] NZHC 2218.

7      R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006; R v Tutahi HC Wellington T4724/01, 26 April 2002; R v Orupe HC Wellington CRI-2009-035-1365, 3 December 2009, and Turi v R, above n 6.

violence occurred in the context of past domestic abuse, they are more serious than this.

[31]              Both lawyers have referred to the decision in R v Turi, and I see that as perhaps the most relevant case. That case involved an attempted stand-over to get drugs and the defendant inflicted a number of blows to the victim’s head and neck. The injuries were not in themselves fatal. However, shortly after the victim collapsed and died. The pathology evidence indicated that the victim had a severely weakened heart and the defendant was sentenced on the basis that the shock of the assault was a substantial and contributing cause of a heart attack from which the victim died. In that case, the Court of Appeal reduced the starting point from seven years three months to five years six months. To reach that, the Court put weight on the Crown’s alternative charge, being injuring with intent to injure, for which the Court found a starting point of about four years would have been appropriate, and uplifted that by 18 months to account for the victim’s unintended death.

[32]              Your lawyer argues that the assault in that case was more forceful than here as the defendant caused three non-life threatening fractures. Furthermore, in that case the beating was intended to intimidate the victim into providing methamphetamine and she says that sets it apart from this case where there was an element of provocation. Your lawyer also says that your concern for the victim in the morning, your willingness to turn yourself in are mitigating features of the offending, which is why she suggests the starting point should be three and a half years’ imprisonment.

Analysis

[33]              I accept that the motivation in your attack was less blameworthy than in Turi, although it was, in my view, still unjustified. However, I do not diminish the seriousness of the beating you inflicted on Mr Fahey. The facial disfigurement you caused and the breaking of the hyoid bone are evidence of that. I also consider his relative vulnerability because of his smaller size and his age increase your culpability. Furthermore, in this case, unlike in Turi, you knocked Mr Fahey to the ground and hit him there. Furthermore, you knew when you left the house that you had killed or probably killed him, which was not the case in Turi, and you did nothing about that.

Here, the alternative charge, like in that case, is wounding with intent to injure and it attracts a maximum penalty of seven years’ imprisonment. I consider that had death not ensued, a starting point of four and a half years’ imprisonment for that charge would have been appropriate. In line with Turi, I would uplift that by 18 months to reflect the fact that the victim died. I therefore consider that a starting point of six years’ imprisonment is open.

[34]              Both lawyers accept, and I agree, that an uplift of 12 months should be imposed to reflect your prior violent history and your offending while subject to release conditions. On my count you have almost 150 convictions as an adult, including a substantial number for violence offences. These include common assault, male assaults female, threatening to kill and ill treating an animal. These are not just historic convictions. Many of them were committed in the last 10 years, at a time in your life when you should have put such offending behind you.

[35]              I do not consider that you are entitled to a discount for remorse or for the offer to attend restorative justice. While I accept that you are upset that Mr Fahey died, and that the grief you expressed when you were interviewed by police was genuine, you still do not seem to accept that your actions contributed to his death. That understandably has upset Mr Fahey’s family and friends. I consider that you lack insight into the degree of your involvement in his death and that counts against you being remorseful for the crime that you have been convicted of. Furthermore, I do not consider your offer to attend restorative justice is meaningful or likely to be productive while you maintain your stance that you are the victim here.

[36]              You are also clearly not entitled to a credit for a guilty plea because none was given.

Minimum period of imprisonment

[37]              The Crown has proposed that a minimum period of imprisonment which is greater than one-third of the overall effect of sentence should be imposed in this case.8 Because you have multiple previous convictions for violence, and you have, in this

8      Pursuant to s 86 Sentencing Act 2002.

case, carried out a violent assault on a man many years your senior, the Crown suggests that a minimum period of half of the overall sentence would be appropriate.

[38]              I agree that in order to meet the purposes of sentencing which I outlined at the start, that is, deterrence, denunciation, holding you accountable for the harm done and protecting the community, a minimum period of imprisonment should be imposed and I consider a minimum period which represents half of your sentence, would be appropriate.

[39]Mr Blackler, would you please stand.

[40]              On the charge of manslaughter, I sentence you to seven years’ imprisonment with a minimum period of imprisonment of three and a half years.

Solicitors:

RPB Law, Dunedin

Anne Stevens, Barrister, Dunedin