Hughes v R - [2022] NZHC 2835

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000388

[2023] NZHC 2835

BETWEEN
ALEKSA MITIC

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 October 2023

Appearances:

P J Syddall for the Appellant

R van Boheemen for the Crown

Judgment:

17 October 2022

JUDGMENT OF ANDERSON J

This judgment was delivered by me on17 October 2023 at 3:00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors: Crown Solicitor, Auckland

MITIC v POLICE [2023] NZHC 2835 [17 October 2022]

Introduction

[1] Aleksa Mitic appeals against the sentence of two years and six months’ imprisonment imposed by Judge K G Davenport KC in the District Court at Auckland on a charge of aggravated robbery.1

[2]The appellant’s grounds of appeal are that:

(a)further discounts for personal mitigating factors should have been applied; and

(b)a sentence of home detention ought to have been imposed.

[3] The Crown says that the end sentence imposed was not manifestly excessive and the appeal should be dismissed.

[4] This Court must allow the appeal if it is satisfied that there is an error in the sentence and that a different sentence should be imposed.2 The overall question on appeal is whether the sentence was manifestly excessive, the sentence is wrong in principle, or whether there are exceptional circumstances.3

The offending

[5] The aggravated robbery involves Mr Mitic taking a box cutter and a pre-written note demanding cash into the Takapuna Branch of the ASB Bank.

[6] Having entered the bank, he produced the note (“$1,000 ASAP”) to the teller, and pointed the box cutter at her, retracting and extending the blade several times in her direction. He then stood closely behind another teller who was attempting to get cash for him and banged the box cutter (with blade extended) against the money machine several times, telling her to hurry up. Mr Mitic left the bank with $300.

1      Crimes Act 1961, s 235(c): maximum penalty of 14 years’ imprisonment.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

Sentence indication

[7] Mr Mitic has a long history of alcohol addiction. On 6 September 2022 Judge A Fitzgibbon was advised that Mr Mitic wished to apply for admittance to the Alcohol and Other Drug Treatment Court (AODTC). A sentence indication of less than three years is a prerequisite for entry. Judge Fitzgibbon gave an informal sentence indication of “just under three years”, which was accepted. The end ranges appearing in the submissions filed in advance of this indication suggest that a guilty plea discount of 25 per cent was the only discount applied during the sentence indication.4

[8] Mr Mitic was accepted into the AODTC programme on 26 January 2023 but was exited from it on 21 April 2023.

Sentencing decision

[9] Due to an issue with the recording equipment, the sentencing decision in the District Court was not audio recorded and no Judge’s notes were retained. Judge Davenport provided reconstructed…

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.

Continue reading Hughes v R

Details

AGLC: Hughes v R [2023] NZHC 2835
Case: [2022] NZHC 2835
Decision Date: 17 October 2022

CaseChat Overview and Summary

Aleksa Mitic appeals against the two years and six months’ imprisonment sentence imposed by Judge K G Davenport KC in the District Court at Auckland, for aggravated robbery. The appellant argues that further discounts should have been applied for personal mitigating factors and that a sentence of home detention ought to have been imposed. The Crown submits that the sentence was not manifestly excessive and the appeal should be dismissed.

The court considered the grounds of appeal, focusing on the level of discount applied for personal mitigating factors. The appellant's counsel argued for discrete discounts for addiction, adverse personal circumstances, and remorse, while the Crown argued for a combined discount. The court agreed that a combined discount of 20 per cent for all personal factors would have been appropriate, rather than the 10 per cent applied by the District Court. The court also found that some discount should have been given for the appellant's rehabilitative efforts, although it was less than the 30 to 50 per cent range typically applied for electronic monitoring bail.

The court found the sentence of two years and six months’ imprisonment to be manifestly excessive, given the level of discount applied for personal circumstances. Applying a 45 per cent total discount (25 per cent for guilty plea and 20 per cent for personal factors) results in a sentence of 26 months’ imprisonment. The appeal is allowed, the original sentence is quashed, and a new sentence of two years and two months’ imprisonment is imposed.

Orders