Mika v Police
[2025] NZHC 2726
•18 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2025-463-99
[2025] NZHC 2726
BETWEEN TUPAEA MIKA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 September 2025 Appearances:
R Adams and M Dunn for Appellant M Tutton-Harris for Respondent
Judgment:
18 September 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 18 September 2025 at 2.30 pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Adams Law, Tauranga
Pollett Legal Ltd, Tauranga
MIKA v NEW ZEALAND POLICE [2025] NZHC 2726 [18 September 2025]
[1] The appellant Mr Tupaea Mika appeals against the sentence imposed by Judge L M Bidois on 31 July 2025.1
[2] Mr Mika was sentenced on two charges under s 62(1)(a) of the Land Transport Act 1998:2
(a)careless driving while under the influence of drink or a drug causing death; and
(b)careless driving while under the influence of drink or a drug causing injury.
[3]The sentence imposed was 14-and-a-half months’ imprisonment.
[4] Mr Mika appeals his sentence on the grounds that the Judge erred by not commuting the sentence to home detention.
Background
[5] Mr Mika was driving on a restricted driver’s license on the morning of 4 October 2024. He had finished working a night shift at around 3 am and drove from Tauranga to Kawerau.
[6] At around 6.30 pm that same day he drove to Ruatoki and went to Kapa Haka held at a marae. There, he drank beer. Mr Mika then drove away from the marae. At about 11.30 pm, he was travelling along State Highway 2. As he approached a sweeping left-hand bend, he crossed the centre line into the path of an oncoming vehicle. The vehicles collided head-on and the impact pushed the victim’s vehicle backwards around 10.5 metres and sideways off the road.
[7] In the oncoming car was Ms Mohi-Roberts (in the passenger seat) and her daughter, who was driving. They had just finished work near Te Puke and were driving
1 Police v Mika [2025] NZDC 17766.
2 Maximum penalty 3 years’ imprisonment or $1,000 fine; and at least 1 year disqualification.
home. Ms Mohi-Roberts took most of the impact and was trapped in the vehicle after the crash. She was flown to Waikato Hospital and died as a result of her injuries.
[8] Ms Mohi-Roberts’s daughter was able to get out of the vehicle and check on her mother and Mr Mika. She sustained a 2 cm cut to her knee which required stitches and hospitalisation, as well as abrasions, tenderness and bruising.
[9] Mr Mika admitted to drinking 8–10 beers at the marae but stated he could not remember why he was driving or where he was heading to.
[10] A blood sample taken from Mr Mika approximately five hours after the crash returned a result of 53 +/-3 mg of alcohol per 100 mL of blood. The legal limit for a driver under the age of 20 years is zero. The likely blood alcohol at the time of the crash would have been between 100–180 mg per 100 mL of blood.
[11] Mr Mika was in breach of his restricted license because he was driving under the influence of alcohol, and outside of the permitted hours.
[12] He has one relevant previous conviction: on 26 March 2023 he was driving with excess breath alcohol. He was sentenced to a fine and disqualification from driving for six months.
The approach on appeal
[13] Sentence appeals proceed by way of rehearing. An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.
[14] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.3 In any other case the appellate court must dismiss the appeal.4 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.5 An appellate
3 Criminal Procedure Act 2011, s 250(2).
4 Section 250(3).
5 Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
decision is focused on the end result rather than the process by which the end sentence was reached.6
[15] When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate, vary the sentence or any part of the sentence or any condition of sentence, or remit the sentence to the court that imposed it.7
[16] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal, that affects the appropriate outcome.8
[17] This Court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.9
The sentencing decision
[18] Judge Bidois noted that the appellant was on a restricted license and set out the facts in accordance with the summary of facts.
[19] The Judge referred to the pre-sentence report which stated that the appellant was 20 years of age at the time of sentencing and 19 at the time of the crash. The report writer said the appellant presented as a relatively thoughtful, honest, decent, young man who was cognisant of the severity of his crime. The appellant was tearful at times and did understand the tragic repercussions of his actions which weighed heavily upon his mind. He accepted full responsibility and appeared genuinely remorseful. He apologised for the pain he had caused and said he was not a bad person. The appellant indicated a willingness to pay reparation.
6 Kumar v R [2015] NZCA 460 at [81].
7 Criminal Procedure Act, s 251.
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
9 Tutakangahau v R, above n 5, at [36].
[20] The Judge identified the key factors of the offending as youth, alcohol abuse, criminal associates, a disregard for the law and poor decision-making. The Judge noted that the appellant was assessed as at a low risk of further offending. The Judge recognised that an innocent member of the public has lost their life. The pre-sentence report recommended imprisonment although home detention was an alternative option.
[21] The Judge said the appellant’s father described the appellant as a very caring and loving person, who grew up in a family with strong morals and values. The appellant’s partner described the appellant as a good person who is both respectful and fun to be with. The Judge noted that the appellant was employed as a machine operator. The appellant started drinking when he was 16 and rarely used drugs.
[22] The Judge then said that he must have regard to relevant sentencing principles and purposes including holding the appellant accountable for the offending, promoting a sense of responsibility in him, deterrence and denunciation when dealing with offenders who drive, and cause accidents and people get hurt or killed. The Judge also said that he had to have regard to the effect of his offending on the victims and take into account the appellant’s personal circumstances.
[23] The Judge recorded the police position which was that the lead charge of careless driving under the influence causing death should attract a starting point of 26 months, with a 10-month uplift for the second offence, 25 per cent reduction for guilty plea and a one-month uplift for previous offending. The mitigating factors were accepted.
[24] The Judge identified as aggravating the manner of driving, the level of carelessness in failing to negotiate a sweeping left-hand bend; and the harm caused to the car, and the victims. The Judge also noted the appellant’s prior conviction for drink driving in 2023.
[25] The Judge said that the appellant was driving outside the conditions of his license. He consumed alcohol and, while that is an inherent part of the charge, the amount of alcohol consumed was aggravating. This was not half a stubby or a glass
of wine; he had 8–10 bottles of beer and the reading was well in excess of what he should have been driving with. In addition, the appellant had a previous conviction for driving under the influence of alcohol.
[26] The Judge acknowledged the strong mitigating factors including the immediate guilty plea and the fact that the appellant accepted full responsibility. The Judge acknowledged the letter of remorse and accepted that the appellant’s apology and remorse were genuine.
[27] The Judge also acknowledged the appellant’s youth and referred to Churchward v R.10 He acknowledged the appellant’s positive prosocial history including that he was previously involved in Manu Kōrero, kapa haka and the First XV at school. The Judge traversed the glowing testimonials.
[28] The Judge referred to McGregor v Police where a starting point of 24 months was not disturbed on appeal in respect of a charge of causing death while carelessly driving with excess blood concentration of methamphetamine and THC (cannabis).11 The Judge had been referred to other cases which he had regard to.
[29] The Judge noted the comprehensive submissions filed by the appellant’s counsel and the submission by counsel that the appropriate starting point was 18 months’ imprisonment, and the least restrictive outcome one of home detention.
[30] The Judge referred to the appellant’s good driving record, single previous relevant conviction, timely plea of guilty, genuine shock and remorse, the appellant’s age the fact that he also suffered serious injuries. The Judge said that the important factors were that the appellant acknowledged his offending and pleaded guilty. The appellant was described as “pretty much” a first offender, 19 years of age and the Judge acknowledged that many 19-year-olds do “dumb things”.12
10 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
11 McGregor v Police [2025] NZHC 871.
12 Police v Mika, above n 1, at [17].
[31] The Judge referred to the fact there were two victims and the effect the offending had on the victims. The Judge referred to the victim impact statement from the surviving victim.
[32] The Judge said that he had to assess the overall seriousness of the offending, saying:
[36] … 4 October is a night that impacted significantly on two families. In one car was you, a young man full of potential, been at a kapa haka, had a couple of beers, then decided to drive. In another car was a mother and a daughter who had worked together, returning home. You travelled down the same road but in different directions. You failed to stay within your lane around a bend, crossed the centreline and there was a head on collision which obviously left the passenger dead and the driver injured. You yourself suffered serious injuries. I have seen photographs of the vehicles. It was not a pretty sight.
[37] A life was taken. The lives of the daughter and no doubt the extended family have been damaged as a result of this forever. For you, you must live with this, the consequences and now you are to be held accountable in terms of the law. Sentencing for judges where a death has occurred is probably one of the hardest types of sentencings that we do. It is not about retribution. We are often hamstrung by precedent. We are guided by sentencing principles and purposes which we need to weigh up, both the interests of a defendant and also the victim.
[33] The Judge said he went through the appellant’s references in some detail because he wanted to victim’s family to know that at heart the appellant is a good boy. He had a minimal criminal history; he was working and culturally connected. It was clear to the Judge that the appellant has taken this matter seriously and it has affected him and his wider family. The Judge said that the appellant was not a “hoon” or someone who just does not care about what occurred.13
[34] The Judge acknowledged that the impact of his actions has been felt deeply. The Judge said that the tragedy was entirely avoidable. The appellant should not have been driving in the first place because he was on a restricted license. He should not have been drinking because he was on a zero-alcohol limit and the collision was avoidable.
13 At [39].
[35] The overall starting point was fixed at 27 months’ imprisonment. The Judge applied credits totalling 50 per cent14 but uplifted by one month for the appellant’s previous conviction, arriving at 14-and-a-half-months’ imprisonment. The Judge then turned to consider home detention.
[36] The Judge said that balancing the principles of deterrence and denouncement depends upon whose perspective the Court considers. The Judge said that from the appellant’s perspective, home detention would meet those deterrent and denunciation principles because it is a difficult sentence being a loss of liberty over an extended period of time and is a hard sentence for a young person. From the victim’s perspective though, home detention would not meet the principles and purposes of sentencing: one person was lost, and another, injured.
[37] The Judge said that in the end he did not choose whether to look at it from the appellant’s perspective or a victim’s perspective. He took into account that the appellant was young and took into account his prospects of rehabilitation and his future. But the Judge said he went back to an adage that he said is commonly understood within the community: “You drink and drive, you kill someone, you go to jail.”15 The Judge said on that basis he was not prepared to grant home detention.
Discussion
[38] The appellant accepts that the starting point of 27 months’ imprisonment was within the available range although says it was stern. There is no issue taken with the level of credit given for mitigating factors.
[39] The appellant says however that the Judge should have commuted the end sentence of 14-and-a-half months’ imprisonment to home detention.
14 Comprised of 25 per cent guilty plea, 10 per cent youth, 10 per cent apology, remorse, and offer of restorative justice; and five per cent to acknowledge whānau support and prospects of rehabilitation.
15 At [47].
[40] The appellant submits that the Judge failed to engage with the mandatory considerations in s 16 of the Sentencing Act and as a result failed to impose the least restrictive outcome as required by s 8(g).
[41] The appellant says that the Judge’s reasoning on the issue of home detention is contained to only three paragraphs of the decision, and that the Judge failed to carefully consider whether or not to imprison the appellant. The appellant contends correctly there is no presumption in law that cases of drink driving causing death result in imprisonment rather than home detention.
[42] Section 16 of the Sentencing Act provides that, when considering the imposition of a sentence of imprisonment, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. The court must not impose a sentence of imprisonment unless satisfied that the sentence is being imposed for one of the purposes identified namely to hold the offender accountable for the harm done; promote in the offender a sense of responsibility and acknowledgment of harm; provide for the interests of the victim; denounce and deter the conduct; and protect the community from the offender.
[43] The court must also be satisfied that those purposes cannot be achieved by a sentence other than imprisonment, and no other sentence would be consistent with the application of the principles in s 8 to the particular case.
[44] I agree that the decision whether to commute a short sentence of imprisonment to home detention where a young person is facing a first sentence of imprisonment requires careful analysis of the s 16 factors. The considerations in s 16 are mandatory. It is best practice to refer to s 16, but a failure to specifically refer to the section does not mean that the Judge failed to have regard to the mandatory considerations in the Sentencing Act. It is necessary to look at the sentencing decision as a whole.
[45] I do not accept that the Judge’s analysis relevant to home detention was confined to three paragraphs.16 It seems to me that the Judge throughout the
16 Police v Mika, above n 1, at [45]–[47].
sentencing was weighing up the competing principles of denunciation, deterrence and rehabilitation. A sentence of imprisonment does carry a higher level of denunciation and it does carry a higher deterrent effect. The Judge also referenced the need to consider the interests of the victims. All of the purposes and principles in ss 7 and 8 relevant to the s 16 considerations were referred to.
[46] The Judge carefully went through the matters which increased the culpability of the offending including the fact that the appellant was not only careless, but was under the influence of alcohol and he was driving outside the conditions of his restricted license. The Judge analysed the degree of carelessness involved.
[47] I also do not accept that the Judge did not consider the need for rehabilitation. Running throughout the judgment is a concern for the appellant’s situation and acknowledgment of his prosocial characteristics.
[48] This offending was the second time in 18 months that the appellant at only 19-years-old had been charged with an offence involving drink driving, and only 12 months had passed since the disqualification from his previous sentence expired. I think the Judge was correct to take the level of intoxication into account. This appellant was a repeat drink driver on a restricted licence driving late at night who killed and injured other road users through carelessness.
[49] That combination of factors led the Judge to the view that the offending required a significant level of denunciation and deterrence. Sentencing is not a science; it is a discretionary exercise. I consider that the Judge was entitled to reach that view as an exercise of his discretion.
[50] I do not read the Judge’s reference to an adage as importing a presumption of imprisonment in cases of careless driving causing death. Rather, it seems to me it was a shorthand way of the Judge saying that the denunciation which the community would rightfully expect in this particular case was the imposition of a sentence of imprisonment.
[51] I do not find any material error in the decision not to commute the sentence to home detention. That was an assessment for the Judge to make and I consider that he did take into account all relevant matters. He did not consider any irrelevant matters and he clearly undertook a careful balancing exercise. That balancing exercise would have ideally referenced s 16 but I can see from the Judge’s earlier reasoning what the outcome of the analysis would have been, and I do not disagree with the reasons for the end sentence which are apparent from the decision as a whole.
[52] The relative weight to be given to the principles and purposes of the Sentencing Act is determined by the sentencing Judge having regard to the circumstances of the case. It has been said that the closer the dividing line between imprisonment and home detention, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.17
[53] The sentence imposed was open to the sentencing Judge and was not inappropriate given the combination of factors and the competing interests which had to be balanced. The need for deterrence in cases of careless driving causing death where alcohol is involved is strong and can be focused on general deterrence rather than the particular appellant. Nothing can change what happened in this case, but a sentence of imprisonment does send a stronger message of denunciation. Such a sentence is also intended to deter others and prevent future similar tragedies.
[54] Criminal law is never just focused on the defendant and complainant. Those parties are central to the events but, as set out in the Sentencing Act, the community interest in denunciation and deterrence sits alongside the interest in rehabilitation of defendants. That is the balancing exercise that must be undertaken. It is why the least restrictive sentence necessary to deter a particular defendant from future offending may not be the least restrictive sentence actually required in the circumstances of the case to meet the purposes and principles of sentencing which are wider than the interests and needs of the defendant.
17 R v D (CA 253/2008) [2008] NZCA 254 at [66]; and Arthur v Police [2018] NZHC 279.
[55] In this case the sentencing notes reveal that the Judge was concerned to balance the need for rehabilitation and reintegration with the need for denunciation and deterrence. The outcome was a stern one for this appellant, but it was open to the Judge, and I cannot say that it was an inappropriate or erroneous outcome.
Result
[56]The appeal is dismissed.
Wilkinson-Smith J
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