A Dunedin man already had 76 criminal convictions, including assault and robbery, when he choked a local man unconscious and left him lying on the toilet floor at an inner-city bar, a High Court judge said in Dunedin yesterday.
Stephen Anthony Fernyhough (26), a demolition worker, abused drugs and alcohol, displayed recidivist patterns of offending, and had a capacity for violence.
He was assessed as highly likely to reoffend and cause harm to others, Justice David Gendall said when sentencing the accused to five years' jail for the manslaughter of Ryan Court.
Fernyhough was originally charged with murdering 35-year-old Mr Court, who died after being put in a choker-style hold following an initially light-hearted verbal exchange in the men's toilet area of the Craft Bar about 1.30am on April 27.
Although Mr Court was quickly unconscious, Fernyhough continued to apply the hold for between 20 and 40 seconds before letting go.
He left the toilet with the comment ''Don't mess with the wee man'' and went with his friends to another bar where a disorderly incident resulted in a window being broken.
Other Craft Bar patrons tried to help Mr Court, who lay unconscious on the floor, his face and lips turning blue. But he could not be revived and was pronounced dead soon afterwards.
A postmortem examination found his sudden death was due to the effects of the neck hold. The carotid arteries were compressed, causing impaired blood flow to the brain and carotid sinus stimulation, which resulted in the slowing or stopping of the heart.
No other injuries contributing to Mr Court's death were identified and the murder charge was subsequently amended to manslaughter.
Fernyhough pleaded guilty on July 30. At sentencing in front of a packed and, at times, vocal public gallery in the High Court, Crown counsel Robin Bates asked for an end sentence of five and a-half to six years' jail.
The court could find the death involved extreme violence, given the prolonged time of the neck hold, Mr Bates said. And there could be said to be premeditation, given the defendant's decision to apply the hold and continue to apply it after Mr Court was unconscious.
The hold could also be viewed as an attack to the head. Fernyhough had convictions for assault in 2006 and 2007, for robbery with violence in 2008 and he was on remand for a disorderly offence at the time he caused Mr Court's death.
The particular case should be considered more serious than cases where there was one punch, involving no significant premeditation but rather a quick reaction, Mr Bates said.
The fact Fernyhough applied a neck hold and continued it for about 30 seconds after Mr Court was incapacitated showed an ongoing intention. And he offered no assistance, instead making a gloating remark, before leaving the bar.
Defence counsel John Westgate said Fernyhough had written a letter of apology to Mr Court's family.
He was deeply remorseful and wanted to say how sorry he was. He had never wanted to cause death. From his point of view, there was no particular reason for becoming involved in the altercation in the toilet.
As Fernyhough saw it, he was fighting to get away from Mr Court, who was 50kg heavier than him. He put Mr Court in the restraint hold to stop the altercation going any further.
That submission brought an outburst from several people in the public gallery, provoking Fernyhough to shout at them to ''Shut up'', that they knew nothing as they were not there.
While the defendant had been criticised for not helping Mr Court, he had not realised the jeopardy he was in, Mr Westgate said.
''Nobody was more upset and shocked than him when he found out he [Mr Court] had died.''
He had expressed his remorse and had offered to go through the restorative justice process, but that was not accepted.
Mr Westgate suggested the situation was not worse than a ''king hit'', that Fernyhough had applied a restraint hold and it had ''a bad outcome''. Justice Gendall described victim impact statements from Mr Court's parents, his uncle and a cousin as ''tragic reading''.
They spoke from the heart about the huge loss of a loved son in a family which had already suffered ''considerable misfortune''. The judge said Fernyhough had intended to cause serious harm when he applied the choke hold.
He deliberately maintained it after Mr Court was unconscious then walked away without checking whether he was injured.
But the fact there had been a struggle, with both men grabbing at each other's clothing, amounted to some provocation, which mitigated Fernyhough's culpability ''to some extent'', the judge said. While there were some similarities to the ''one punch'' type of case, the judge found the defendant's offending was ''significantly more serious''.
The force had been sustained, the hold was deliberately applied and maintained for 20 to 30 seconds after unconsciousness and it must have been at least intended Mr Court would be significantly incapacitated, as the defendant was heard saying words to the effect of ''Don't mess with me'', before he walked out without helping the unconscious man.
Taking a six-year starting point to reflect the seriousness of the offending, and adding nine months to reflect the defendant's 76 previous convictions, including about 18 from the Youth Court, Justice Gendall made a 25% discount for the guilty plea and ''some remorse'' and sentenced Fernyhough to five years' jail.
