R v Fahey

[2015] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-10184 [2015] NZHC 78

THE QUEEN

v

GREVILLE HENARE FAHEY

Hearing:	5 February 2015
Appearances:	D G Johnstone for Crown Mr Fahey in person P E Dacre QC (counsel appointed to assist the Court)
Sentence:	5 February 2015

SENTENCING REMARKS OF LANG J

R v GREVILLE HENARE FAHEY [2015] NZHC 78 [5 February 2015]

[1]      Mr Fahey, you appear for sentence today having been found guilty by a jury of murdering Mr Steven Harris.  As you have heard, and now well know, the only realistic sentence to be imposed in the circumstances of this case is one of life imprisonment.   The real issue is the minimum term of imprisonment that I am required to impose in order to satisfy the legal provisions that apply in this context.

Background

[2]      Your offending occurred late on the evening of 4 September 2013.  It began when you and your friend, Mr Harris, were walking through central Auckland City.  I do not have any detailed knowledge of your previous association with Mr Harris. Clearly, however, he was an associate with whom you spent some time, because during  the  trial  the  Court  heard  evidence  about  an  incident  that  occurred  on

25 August 2013, just over a week before the incident for which you appear for sentence today, in which you and Mr Harris were seen together in the viaduct area of Auckland City.  During that incident, Mr Harris went for a joyride on a boat that was tied up at the waterfront and this led to his subsequent arrest.  So clearly, a week or two before this incident, you were associating in a friendly way with Mr Harris.

[3]      You were roughly the same age, being 48 years in your case at that time, whilst Mr Harris was approximately 54 years.

[4]      On this particular evening, that of 4 September 2013, you and Mr Harris were together at your residence at the Grafton Oaks Hotel.  The receptionist at the hotel gave evidence about hearing an angry verbal altercation between the two of you. She then saw Mr Harris leave the hotel at about 7 pm and you followed.

[5]      There is no evidence as to what you did over the next four hours, but I infer that you must have gone into the central area of Auckland City because CCTV cameras picked up you and Mr Harris in the area of Albert Street at shortly before 11 pm.   CCTV camera footage during the trial show that you and Mr Harris walked down from Albert Street into Victoria Street West.  You then entered Elliott Street, where you went into a pizza parlour and obtained some free pizza.  You shared this

with Mr Harris and the two of you then continued walking down Elliott Street, and then onto Queen Street.  You walked down Queen Street to the area of Aotea Square, where you were seen walking across Aotea Square.  By this stage you were walking apart, with you walking in front and Mr Harris walking behind.

[6]      The film footage then shows the two of you walking down the back of the Town Hall, again with you leading and Mr Harris following.   You then walked through the carpark and under the overpass of Mayoral Drive and thereby entered Myers Park.

[7]      The film footage shows that shortly after you entered Myers Park, an incident occurred after Mr Harris caught up to you near a tree.  Some sort of violent incident occurred there.  I have no means of knowing exactly what it was, but I am satisfied from the blood trail that led from that point to where Mr Harris was ultimately found that you must have stabbed him at least once in that location.   He is then shown retreating back some metres with you following.  There is then an incident in which you lashed out at least once, and probably on several further occasions, to Mr Harris’ left side.  He then fell to the ground and you left the scene.

[8]      The evidence disclosed that after leaving the scene you walked up Airedale Street to Symonds Street. At the corner of Airedale and Symonds Street, you left the knife that had been used at the incident in a garden plot.  You then walked on to an apartment in Symonds Street, where you obviously knew the occupants.  You went into that apartment building and appear to have changed your clothing.  You then went  to  Avondale,  where  you  arrived  some  time  after  midnight  at  an  address occupied by your relatives.  You immediately told them that you had been involved in a serious incident and you gave some explanation as to what had happened.  On the afternoon of 6 September 2013, you accompanied your lawyer to the police station where you made a statement to which I will return shortly.

[9]      The incident in Myers Park was observed by a number of eyewitnesses who gave evidence at trial.   It is clear from their evidence that the incident occurred quickly and was over in a matter of seconds.  They went down to attend to Mr Harris and found that he was in a serious state.  The ambulance was called and arrived a

very short time later, as did the police.   When the ambulance staff checked Mr Harris, they found that he was very ill.   They found pulseless electrical activity, which  means  that  there  was  some  electrical  activity  around  the  heart  but  not sufficient to sustain a pulse.  They immediately took him to hospital, arriving just a few  minutes  later.    He  underwent  immediate  and  very  extensive  surgery in  an endeavour to locate and repair the wounds that you had inflicted.   Unfortunately, however, in spite of the best endeavours of the surgeons, Mr Harris was unable to be saved and he was pronounced dead.

[10]     When  a post-mortem  examination was  carried  out,  the pathologist  found some cuts to Mr Harris’ arm.   The most serious wounds were to his chest.   The pathologist found at least one wound, and possibly two, to the heart and another wound to the lung.   These undoubtedly caused immediate and massive internal bleeding that no amount of surgery was able to stop.

[11]     As I have already indicated, you went to the police station on the afternoon of

6 September 2013.  In the presence of your lawyer, you provided the police with a statement in which you described some of the events of the evening.  You couched your comments carefully however. You did not accept that you had taken a knife to the incident.  You said only that you were involved in a fight in which a knife had been used.  To your credit, however, you took the police to the area where you had left the knife.

[12]     You have never, ever, given an explanation to anybody as to how this incident occurred, or why it occurred.  You have exercised your right to silence, as indeed is your fundamental right, throughout.  As a result, I am forced to draw conclusions from the evidence that I have heard as to what occurred.   For present purposes, I only need to reach two conclusions of fact.  The first relates to how and why the incident occurred.  The second relates to the issue of whether or not you took the knife to the scene.

[13]     I accept from all of the evidence that the relationship between you and Mr Harris was at times testy.  That is evident from a number of aspects of the evidence and, in particular, from the evidence of the hotel receptionist who described the

argument at about 7 pm on the evening of 4 September 2013.   Nevertheless, it is clear that the two of you were if not friends, then certainly associates, who spent a degree of time together.   That is also demonstrated by the fact that some of Mr Harris’ belongings were found in the room that you were renting at the hotel.

[14]     You certainly seem to have been getting on amicably as you walked down Elliott Street.  That is demonstrated by the fact that you were prepared to share the pizza that you obtained from the pizza parlour with Mr Harris.  I infer that at some stage after that a verbal altercation must have arisen between the two of you.  I have no way of knowing what that related to.  I infer that it occurred in or about Elliott Street, or the walk up to the underpass, because that is the point at which you began walking ahead of Mr Harris.  Clearly, however, whatever may have occurred was not sufficient to provoke you to immediate action, because you did not strike him or take any aggressive stance towards him until after you were in Myers Park.

[15]     I consider that you must have become angry at whatever had happened by the time you reached Myers Park.  At that point, you resorted to the knife to inflict the wounds that I have described.  As I said, this occurred, in my view, in two places. First, in the area by the tree and then secondly, in the area some metres away back towards the overpass where Mr Harris was ultimately found.  That is the extent to which I can make factual findings regarding what happened during the incident.

[16]     The remaining issue relates to whether or not you brought the knife to the scene.  I have no hesitation in concluding that you did.  First, you have never denied that you took the knife to the scene.  Secondly, the CCTV camera footage does not show any action by Mr Harris consistent with him having produced a knife, or with you disarming him.  Thirdly, as I will shortly detail, you have a history of carrying knives with you.  I am therefore satisfied beyond reasonable doubt that you took the knife to the scene and that you resorted to it when you became angry with Mr Harris.

Minimum term of imprisonment

[17]     As I have already indicated, in any case where a person commits a crime of murder, the Court is required, unless exceptional circumstances exist, to impose a

sentence of life imprisonment.1    That must be the case here.   The Court when it imposes a sentence of life imprisonment is required by s 103 of the Sentencing Act

2002 to impose a minimum term of imprisonment.  It must impose a minimum term of imprisonment of at least ten years.2    It must be the minimum term necessary to reflect four factors.  The first three of these are the need to denounce the conduct in question, the need to hold the offender accountable for it and to deter the offender and other like-minded individuals from engaging from similar conduct in the future. The fourth factor, and the one that the Crown relies on in this case, is the need to

protect the community in the future from the actions of the offender.

[18]   Before going on to deal with the length of minimum term, I need to acknowledge the presence today in Court of Mr Harris’ sister.  She has prepared a thoughtful and restrained victim impact statement that has been read to the Court today.  This demonstrates the enormous impact that your actions have had for not only Mr Harris, but also members of his wider family.  Tragically, Mr Harris’ mother suffered a serious stroke not long after this incident, and Mr Harris’ sister is sure that the incident in which you were involved was a major contributing factor to this.

[19]     In any case involving death in this kind of context, the wider family will be tragically affected, and the present case is no exception.   The sympathies of the Court are extended to Ms Michele Harris and her family.  She also had to undertake the ordeal of sitting through most of your trial and thereby reliving the events that led to her brother’s death.

[20]     The Crown accepts that the first three factors to which I have referred would not on their own justify a minimum term of imprisonment of more than ten years.  I agree with that assessment.   Although this was a senseless and tragic killing, nevertheless it does not have features that are so far out of the ordinary that a minimum term of imprisonment of more than ten years would ordinarily be justified.

[21]     The real issue here is whether I should increase that minimum term to protect the public because of the fact that you now have a number of previous convictions

for violent incidents.  I have found a helpful summary of these in a pre-trial ruling given  by Venning  J,  when  he  determined  an  application  by the  Crown  to  lead propensity evidence at  your trial.3     By way of background,  you  now have 202 previous convictions.   By my reckoning, you have 15 separate convictions for different  acts  of  violence.    You  have  served  many  sentences  of  imprisonment. Indeed, you were only released from serving a sentence in respect of the last of these some six weeks before the present offending.

[22]     That offending gives some hint, Mr Fahey, as to your makeup.  I have read both Venning J’s decision, and also the Court of Appeal decision relating to that offending.4     It records that on the afternoon of 31 December 2011, you were in Myers Park, the same park where the present offending occurred.   The two complainants walked towards you.  They had never met you before, and had never had anything to do with you before.  They did not know you at all.  They were of

Asian ethnicity, and you proceeded to racially abuse them.  You then pulled out a rock which was in a sock.  You swung it around your head and threw it at the male complainant.   This struck him in the back of the head, causing him to fall to the ground.  He required hospital treatment as a result of this incident.  As I have said, these people were entirely unknown to you and this incident was completely unprovoked.

[23]     Your offending, however, goes back for many years and in fact to the time when you were just 17 years of age.  Venning J’s judgment records that in 1984, you attacked a person living in the same hostel as you during an argument using a knife. Then, in 1997, you were arrested for breaking into cars. You scuffled with the police and a knife that you were in possession of fell to the ground.  Then, in May 2000, you broke into two vehicles.  When confronted by the owner of one of the vehicles, you lunged at him with a metal glass cutter with a 30 millimetre blade sharpened to a point. When the police later searched your bag, they found a hunting knife inside it.

[24]     On two occasions whilst you were serving terms of imprisonment, you were found with weapons that are described as make-shift knives.  In February 2007, you

went to a service station taking with you a carving knife.  When confronted by the cashier about taking an item from a shelf and eating it without paying for it, you pulled the knife from behind your back and told the victim you were going to kill him.

[25]     I put to one side for present purposes another incident relied on by the Crown at your trial.  This related to an incident that occurred in May 2006, when a police patrol stopped you whilst you were carrying what the police considered to be a home-made knife.  You were later acquitted on a charge relating to that incident on the basis that it may have been an implement used for woodcarving.  I therefore put that particular incident to one side.

[26]     You have also, however, been convicted in relation to an incident involving your mother.  On 10 January 2009, you attacked your 72 year old mother.  You had asked  her  for  money,  and  when  she  refused  to  give  you  any  you  attacked  her violently and threatened to give her a good hiding.  You told the police later that you were angry with her and that you wanted to kill her.

[27]     In my view, it is not the number of previous convictions in this context that are important.   Nor is it the type of punishment to which an offender has already been subject.  Rather, it is the nature of the previous offending that the Court needs to take into account because that gives some degree of insight into what an offender may do in the future.   Your list of previous convictions and the factual basis underlying them tells me several things.  First, you are quick to react.  Secondly, you react under the slightest provocation.  Thirdly, you react in a violent way.  Fourthly, you are prepared to readily resort to weapons and, in particular, knives.  All of those factors tell me, Mr Fahey, that you have a streak of viciousness underlying your usually civil veneer.

[28]     Another  disturbing  feature  of  your  offending  is  that  it  occurs  in  many different situations.  It occurs in a family environment with close relatives.  It occurs, as in the present case, with friends and associates.  It occurs in a prison environment and it also occurs in situations where you do not know your victims at all.  All of these factors tell me that you are a danger to the community, and that in this kind of

situation the Court is justified in exercising its power to increase the minimum term beyond ten years.

[29]     Both counsel have provided me with a number of authorities in which the Court has considered this issue.  Of these, I have to say I have found the authorities provided by Mr Dacre to be the most helpful.  The two cases provided by the Crown, in my view, involve factual situations that are not particularly helpful or apposite in the present context.5

[30]     The authorities that Mr Dacre has given me demonstrate that in situations where an offender has been guilty of previous incidents involving violence, the Court has increased the minimum term of imprisonment beyond ten years to reflect that fact and thereby protect the community.   Generally speaking, however, the

uplifts have been in the order of six months6, 12 months7  and, at the far end of the

spectrum, two years.8

[31]     In our criminal justice system, consistency is important.9    Offenders should not feel that they are dealt with in a manner that is inconsistent with the way in which other offenders are dealt with.  The Crown seeks an increase of three to five years to reflect the danger that you present to the community.  I do not accept that that would be within the bounds shown by present authorities.  I consider, however, that you are at the very upper end of the range because of the aggravating factors that I have identified.  I therefore propose to increase the minimum term of ten years by

two years to reflect that fact.

5      R v Langley [2014] NZHC 3230; R v Baker HC Auckland CRI-2006-044-5276, 15 December

2006.

6      R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011; R v McNaughton HC Nelson CRI-

2009-042-4391, 16 April 2012; R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October

2009.

7      R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2010; R v Boulter [2013] NZHC

2793.

8      R v Prole [2013] NZHC 1267.

9      Sentencing Act 2002, s 8(e).

Sentence

[32]     Mr Fahey, on the charge of murder you are sentenced to life imprisonment. You are ordered to serve a minimum term of 12 years imprisonment before being eligible to apply for parole.

[33]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
P E Dacre QC