Hughes v R
[2022] NZHC 2835
•17 October 2022
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 notes of the sentencing which both parties referred to in submissions. These reconstructed notes state:5
[2] …Mr Mitic had an extensive criminal history and my instructions were that when he committed the crime he [had] just been released from prison, had no money or no food and so went to the bank to try and get some.
…
[4]The statement of facts and summary of previous offending were agreed. The PAC report set out Mr Mitic’s offending from his return from Serbia in 2019 and his significant alcohol addiction. It also assessed Mr Mitic as being of a high risk of offending and that he had a propensity to proffer threats of violence. It reported that Mr Mitic was keen to try the Bridge programme in the future. His parents had been paying for a psychiatrist to assist him in the community. Mr Mitic came from a loving and supportive family and his mother and aunt were in Court on the day of sentence.
4 The Defence and Crown submissions had the same broad starting point of three-and-a-half to four years’ imprisonment, both had an uplift of two months’ imprisonment for the aggravating factors, and both set the guilty plea discount at 25 per cent. The end range for the defence was two years and seven months’ to two years and 11 months’ imprisonment. The end range for the Crown was two years and nine months’ to three years and one month’s imprisonment.
5 Police v Mitic [2023] NZDC 16298.
[5]The Crown sentencing submission suggested a starting point of 3½ to 4 years imprisonment. The Defence submissions were essentially in agreement. The guilty plea discount was agreed at 25%. The parties agreed that there should be an uplift of 2 months for the aggravating factors. The Crown considered that the addiction issues were causative of the offending and a discount for this was appropriate. The Crown noted that the issues set out in the s 27 report largely overlapped with the addiction issues.
[6]The Defence were mostly in agreement with Crown – but submitted that the Court should give Mr Mitic a discount of 20% for the s 27 and addiction issues and his expressed remorse. I reached the conclusion that 10% was appropriate for all these matters as it was addiction which was causative of the offending. This was outlined in his s 27 report. He had attempted rehabilitation in prison and had a certificate of achievement from the Alcohol and Other Drug pre- support workbook in prison dated 31 August 2022. This gave Mr Mitic a total discount of 35%. I assessed the appropriate starting point to be 46 [m]onths (three years and 8 months plus the 2 months for the aggravating factors). The 35% discount brought the total imprisonment time to 30 months. This is 2 years and 6 months. In the round I considered this an appropriate sentence.
[10] At the time of sentencing, Mr Mitic had been exited from AODTC by Judge Partridge. He had spent 47 days in Odyssey House before he was exited from that facility.
Grounds of appeal
[11] As a first appeal point, Mr Syddall for the appellant submitted that when accepting the sentence indication Mr Mitic had a reasonable belief that further discounts would be available to him. However, Mr Mitic was advised of a sentence indication of under three years and that is what he received. Further, Mr Mitic did receive additional discounts in the form of the 10 per cent given by the Judge. This appeal point was not developed in oral argument and I do not consider it further.
[12] As a second appeal point, the appellant contends that the Judge erred in allowing for only a 10 per cent discount to reflect Mr Mitic’s addiction, adverse personal circumstances, and remorse. The appellant submitted that there should be discrete discounts for addiction (15 per cent), adverse personal circumstances (10 per cent) and remorse (in this case a particular discount was not proposed).
[13] In respect to personal circumstances identified in the s 27 report, Mr Syddall refers to Mr Mitic’s ADHD and long-standing mental health issues, engagement with psychological counselling and chronic addiction issues. Mr Syddall referred me to the statement of the Court of Appeal in Zhang v R that:6
Addiction shown to be causative of the offending is a mitigating consideration. It may in its own terms justify a sentence discount of up to 30 per cent, although that is not to be treated as an absolute limit. Addiction will often combine with mental health issues, and the two may need to be considered in combination, although without the doubling-up of an otherwise appropriate discount. Addiction also calls for consideration of a rehabilitative response as part of sentencing.
[14] Mr Syddall further submits there should have been a discrete discount for remorse. Mr Mitic had written an apology letter to the Court which also referred to his embarrassment about the offending.
[15] Last, Mr Syddall submits that Mr Mitic should be given credit for the 47-day period he was in Odyssey House, which involved 24-hour curfew. He relies on R v Walker-Haturini, where Powell J held that restrictive EM bail prior to sentence should receive the same credit for pre-sentence detention calculations as post- sentence, unless good reasons existed for not doing so.7 This is on the basis that the same restrictions on the liberty of the defendant are involved.8 Mr Syddall submits that the same approach should apply to Mr Mitic’s time in the residential programme at Odyssey House.
[16] In conclusion, Mr Syddall says that the Judge’s end sentence of two years and six months’ imprisonment was manifestly excessive in light of the information available after the pre-sentencing indication (the s 27 and pre-sentence reports). With available discounts applied, he submits that the end sentence should have been in the region of 21–23 months’ imprisonment. This would have made Mr Mitic eligible for home detention at his mother’s home, an address still available to him.
6 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10](k).
7 R v Walker-Haturini [2021] NZHC 1208 at [24].
8 At [24].
[17] The question of home detention is moot in any event. I was advised that if a sentence of less than 24 months’ imprisonment was reached on appeal, Mr Mitic is at time served. He is already eligible for parole.
Available discounts
[18] A discount for the causative contribution Mr Mitic’s addiction and mental illness made to his offending was appropriate.9 The question is its level. Mental health issues and addiction may operate in combination. They clearly do in Mr Mitic’s case, as the Judge found. Mr Mitic’s adverse personal circumstances were also all tied up with his addiction issues. I accept the Crown’s submission that the Court needs to be cautious in avoiding doubling-up on discounts.10 However, a discount of 10 per cent reflecting all mitigating factors (addiction plus personal circumstances including remorse) was low.
[19] A discrete discount for remorse was open to the Court in view of Mr Mitic’s letter but was not necessary, had the combined discount been at an appropriate level. The Crown refers to the fact that a full 25 per cent discount for guilty plea had been applied and that this can be seen as including a discount for remorse.11 It is necessary therefore to set out the circumstances in which Mr Mitic pleaded guilty. Following his apprehension at the time of the offending in March, Mr Mitic appeared in Court the next day. He then pleaded not guilty on 7 April 2022 and was remanded to a case review on 15 June 2022. Mr Mitic then sought a sentence indication at that point but pleaded guilty only after receiving it on 6 September 2022. I agree with the Crown’s submission that in these circumstances the full 25 per cent discount for a guilty plea was generous. However, I prefer not to re-characterise the discount given as including recognition for remorse given that does not appear to be the way the Judge was viewing it. Instead I will return to the net result when I consider whether the overall sentence was manifestly excessive.
9 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
10 Zhang v R, above n 6, at [152].
11 cf Mo’Unga v R [2023] NZHC 1967 at [82]-[89]
[20] As to the two-month period Mr Mitic spent in residential rehabilitation, Mr Syddall suggested a credit of three-and-a-half months. Plainly that would not be justified on any basis.
[21] Time spent on EM bail is a mandatory consideration in sentencing. However, whether there is a discount and the level of the discount is an evaluative exercise.12 Non-compliance with bail restrictions may mean no discount is given.13 Although Powell J took the view that EM bail should receive a one for one credit, the Court of Appeal recently noted that discounts for time spent on EM bail are generally in the 30 to 50 per cent range albeit there is no upper limit.14 If this was EM bail, I would exercise my discretion to give credit for a period appreciably less than two months and would likely take into account that Mr Mitic absconded from the facility.
[22] However, this is not EM bail. EM bail should be considered separately from efforts taken to rehabilitate under the AODTC programme. That programme requires participants to undertake residential rehabilitation programmes with a view to supervising the participants through rehabilitation over a period of years. Upon successful graduation from the specialist Court, the sentencing hearing proceeds in light of the successful progress made by the defendant, often resulting in a sentence of less than imprisonment. I accept the Crown submission that time spent in residential rehabilitation, particularly when part of the AODTC programme, is best taken into account by way of discount for efforts at rehabilitation rather than viewed as equivalent to time spent on EM bail.
[23] No discrete discount was given for Mr Mitic’s efforts at rehabilitation. In light of the above, I consider Mr Mitic was entitled to some discount to recognise this factor. In assessing the discount available, Mr Mitic’s rehabilitative efforts can be compared with Berkland where the Supreme Court said that Mr Berkland’s “genuinely exceptional” efforts at rehabilitation warranted an additional 10 per cent discount.15 In considering Mr Mitic’s efforts, the alcohol and drug report provided initially to the
12 Sentencing Act 2002, s 9(3A). See also Mathew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA9.28B].
13 Downs, above n 12, at [SA9.28B]. See for a recent example, Grey v Police [2023] NZHC 2065.
14 C (CA388/2022) v R [2023] NZCA 99 at [41].
15 Berkland v R, above n 9, at [160] and [162].
Court outlined Mr Mitic’s eagerness and motivation to receive treatment. However, the Odyssey House discharge summary reported a lack of motivation and unhelpful behaviours. The Crown refers to the fact that Mr Mitic was discharged from that facility due to “lack of effort”. Although Mr Mitic did not complete the programme, his counsel referred me to the statement of the Court of Appeal in Zhang that:16
… we note the point that even if an offender does not complete the programme, valuable progress may still have been made and we agree with counsel that this should be carefully considered and acknowledged or rewarded as appropriate.
[24]In all the circumstances I consider some level of discount was appropriate here.
[25] In summary, in my view, the 10 per cent discount to reflect all personal factors was too light. A discount in the vicinity of 20 per cent would have been appropriate. This would adequately reflect Mr Mitic’s attempt at rehabilitation, remorse and the factors raised in the s 27 report including the impacts of Mr Mitic’s ADHD in combination with his alcohol addiction.
Manifestly excessive?
[26] The Crown submitted that the overall sentence was not manifestly excessive taking into account the totality of the offending. This submission was primarily founded on the proposition that the tariff judgment17 and further authorities18 demonstrated that a starting point significantly higher than that adopted by the Judge was available. The Crown submitted that the lower starting point recognised that Mr Mitic’s culpability was mitigated in some material respects by his addiction issues.
[27] In terms of the overall culpability of the offending, Mr Mitic had been released from prison the day before with nowhere to stay. There was some degree of planning although I accept it was more spontaneous than pre-meditated offending. Mr Mitic acted alone, was not disguised, had no transport and no intimidatory adornments. He did however present the box cutter he was carrying in a menacing way, extending the
16 Zhang v R, above n 6, at [185].
17 R v Mako [2000] 2 NZLR 170 (CA).
18 R v Peri [2015] NZHC 3221; R v Tuia CA312/02, 27 November 2002; and Fitikefu v R [2014] NZCA 99.
retracting blade several times and subsequently banging the box cutter on the money machine. A sum of $300 was taken. There were two immediate victims affected, being the staff members immediately threatened, although there was no actual violence. The offending was in commercial premises where members of the public can be expected to be present.
[28] A robust approach to the sentencing methodology might have potentially identified a higher starting point, however in my view the starting point was within range given the overall circumstances of the offending.
[29] The Judge assessed the starting point as 46 months (44 months plus two months for aggravating factors). This produced an end sentence of two years and six months’ imprisonment, having applied a 35 per cent discount (25 per cent for guilty plea and 10 per cent for personal circumstances). Notwithstanding that the discount for guilty plea was somewhat generous, I consider the end sentence to have been manifestly excessive given that the level of discount applied for personal circumstances was too low.
[30] As noted above, a discount of 20 per cent to reflect all mitigating factors was justified. Applying a total discount of 45 per cent (25 per cent discount for guilty plea and 20 per cent for all personal factors)19 gives a sentence of just above 25 months. In my view a sentence of 26 months’ imprisonment is appropriate.
Result
[31]The appeal is allowed.
[32] The sentence of two years and six months’ imprisonment is quashed and a new sentence is imposed of two years and two months’ imprisonment.
Anderson J
19 Applying the same methodology as the Judge.
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