R v Fernyhough - [2014] NZHC 2298

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2298
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Stephen Anthony Fernyhough was sentenced for manslaughter, following his guilty plea to the amended charge. The legal issues revolved around determining an appropriate starting point and final sentence for the offence, considering the principles of accountability, denunciation, deterrence, and rehabilitation. The court examined the circumstances of the offence, including the nature of the violence and the lack of intent to cause death, and balanced these against Fernyhough's extensive criminal history and the significant impact on the victim's family.

The court found that the offence involved serious violence, as Fernyhough applied a chokehold to the victim for an extended period, leading to his death. The court considered the Taueki guidelines for sentencing, finding that the offence was sufficiently serious to merit a starting point of six years' imprisonment. Given Fernyhough's extensive criminal history, an uplift of nine months was added to the starting point, resulting in an adjusted starting point of six years and nine months. However, a 25% discount was applied for Fernyhough's guilty plea and some demonstrated remorse, leading to a final sentence of five years' imprisonment.

The court's judgment emphasised the need to hold Fernyhough accountable for the harm caused while also considering his potential for rehabilitation. The sentence imposed aims to provide both denunciation and deterrence, while also offering Fernyhough an opportunity for reintegration into society.

Orders