Mika v R - [2013] NZCA 648

IN THE COURT OF APPEAL OF NEW ZEALAND

CA688/2013
[2013] NZCA 648

BETWEEN	FABIAN JESSIE MIKA Appellant
AND	THE QUEEN Respondent

Hearing:	20 November 2013
Court:	Harrison, Simon France and Dobson JJ
Counsel:	J R Rapley for Appellant J M Jelas for Respondent
Judgment:	12 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Fabian Mika pleaded guilty in the High Court at Christchurch to charges of manslaughter, being an unlicensed driver who failed to comply with a prohibition, failing to stop or ascertain injury or death after a crash and failing to stop when followed by red and blue flashing lights. He was sentenced by David Gendall J to a term of six years and nine months imprisonment.[1]
[1]R v Mika [2013] NZHC 2357.
Mr Mika appeals the sentence on the ground that it is manifestly excessive because of the Judge’s failure to discount the sentence by 10 per cent from its otherwise appropriate starting point to reflect his Māori heritage and its associated social disadvantages.

Facts

During the evening on 21 February 2013 Mr Mika consumed a considerable amount of alcohol and smoked cannabis at a Christchurch property. Just after midnight he drove a stolen motor vehicle for the purpose of collecting extra alcohol supplies. He had three passengers. One was a 15 year old boy, Ethan
Takitimu-McKenzie.
Mr Mika was observed by a traffic officer to be driving the vehicle along New Brighton Road at an excessive speed. The officer attempted to attract Mr Mika’s attention by activating his vehicle’s flashing lights and siren. Mr Mika drove away at speeds of up to 90 kph in a speed zone of 50 kph, reduced in parts to 30 kph due to poor roading surface. He accelerated through a busy intersection at speeds of up to 100 kph on the wrong side of the carriageway. The police abandoned their chase.
Mr Mika ignored his passengers’ requests to stop and allow them to leave the vehicle. When entering roadworks at speeds of about 105 kph his vehicle struck barriers causing it to roll and slide for some distance on its roof. Ethan
Takitimu-McKenzie was thrown from the vehicle and killed. Mr Mika ran away without checking whether anybody was injured.

Appeal

Mr Rapley for Mr Mika asserts that David Gendall J erred in failing to allow a fixed 10 per cent reduction against the sentence starting point of nine years imprisonment to reflect the fact that Mr Mika was of Māori heritage and thus socially disadvantaged. He made the same submission unsuccessfully on sentencing in the High Court. He relies upon authorities in other jurisdictions, particularly in Australia[2] and in Canada.[3] He submits that David Gendall J should have taken into account the unique systemic or background factors leading to the appearance of a Māori offender in court; the types of sentencing procedures and sanctions which may be appropriate in the circumstances…

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 Mika v R

Details

AGLC: Mika v R [2013] NZCA 648
Case: [2013] NZCA 648
Decision Date: 12 December 2013 at 3.00 pm

CaseChat Overview and Summary

Fabian Jessie Mika appealed against his sentence in the New Zealand Court of Appeal, arguing that it was manifestly excessive due to the sentencing judge's failure to discount the sentence by 10 per cent to reflect his Māori heritage and associated social disadvantages. Mika was sentenced to six years and nine months imprisonment for charges including manslaughter, unlicensed driving, and failing to stop or ascertain injury or death after a crash. The central legal issue was whether the sentencing judge should have applied a fixed 10 per cent discount solely due to Mika's Māori heritage, despite the absence of such a requirement in the Sentencing Act 2002.

The Court of Appeal, in a judgment by Harrison J, found that the Sentencing Act 2002 provided comprehensive guidelines for sentencing purposes and principles, including the consideration of an offender's personal and cultural background. However, ethnicity was not listed as a mandatory principle in the Act, and no absolute requirement for a fixed discount based solely on ethnicity existed. The Court emphasized that a judicial evaluation of an offender's culpability was essential, and ethnicity did not mitigate the aggravating factors in Mika's case. The Court concluded that the sentencing judge properly applied the statutory purposes and principles, and Mika's appeal was dismissed.

Orders