Mita v Police - [2017] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE

CRI-2017-441-29 [2017] NZHC 2573

BETWEEN KEEGAN KENDRIX MITA Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 October 2017

Appearances: S Jefferson for the Appellant
C Stuart for the Respondent

Judgment: 20 October 2017

JUDGMENT OF CULL J

[1] Mr Mita pleaded guilty and was sentenced on 9 August 2017 in relation to two charges of male assaults female1 and one charge of attempting to pervert the course of justice.2 Judge Rea sentenced Mr Mita to two years and five months’ imprisonment.3

[2] Mr Mita appeals his sentence on the basis that it breaches the totality principle under the Sentencing Act 2002 (the Act) and is manifestly excessive.

[3] The Crown opposes the appeal on the grounds that the end sentence reflects the totality principle and is within the available range.

1      Crimes Act 1961, s 194(b). Maximum penalty is two years’ imprisonment.
2      Section 117(e). Maximum penalty is seven years’ imprisonment.
3      R v Mita [2017] NZDC 17661.

MITA v NEW ZEALAND POLICE [2017] NZHC 2573 [20 October 2017]

Factual background

[4] Mr Mita was in a relationship with the complainant from late 2015. On or about 26 May 2016, Mr Mita had a verbal argument with the complainant. Mr Mita wanted the complainant to leave with him and told her to get in the car. She was reluctant to comply with his wishes and initially refused but then got into the car as Mr Mita was being insistent. Once they left, Mr Mita punched the complainant repeatedly to her body. The complainant was 17 weeks pregnant at the time and described suffering a lot of pain because of the attack. This incident is the subject of the first male assaults female charge.

[5] Once they got to Mr Mita’s house, Mr Mita took the complainant’s cell phone and insisted she remain in his bedroom and if she wanted to use the bathroom she had to ask his permission and leave the door open while in the bathroom.

[6] The next day, Mr Mita and the complainant left the house. The complainant managed to escape from Mr Mita and, after contacting her family, was taken to Hawke’s Bay Hospital where she was admitted for treatment. While a patient at the Hospital, Mr Mita visited and was observed holding her in a bear hug from behind. Mr Mita held his hands between the complainant’s neck and chest. She was repeatedly yelling “Let me go, let me go”. The complainant indicated she wanted to use a phone in private and she wanted to go to the bathroom alone. Despite these requests, Mr Mita would not release her. Hospital staff intervened and Mr Mita reluctantly let the complainant go. This incident is the subject of the second male assaults female charge.

[7] The complainant remained in hospital for five nights and was discharged on

2 June 2016. She had extensive bruising to her body, especially to her…

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 Mita v Police

Details

AGLC: Mita v Police [2017] NZHC 2573
Case: [2017] NZHC 2573
Decision Date: 20 October 2017

CaseChat Overview and Summary

Mr Mita appeals his sentence on the basis that it breaches the totality principle under the Sentencing Act 2002 and is manifestly excessive. The Crown opposes the appeal on the grounds that the end sentence reflects the totality principle and is within the available range. The High Court found that the sentence imposed was within the available range and did not breach the totality principle. The Court held that the District Court Judge adopted a global approach to the sentencing exercise and had the totality of the offending at the forefront of his mind. The Court found that the Judge was not in error in adopting the starting point of 18 months for the assault charges, and the 18 month uplift for the charge of attempting to pervert the course of justice was also appropriate. The Court found that the total period of imprisonment was in proportion to the gravity of the overall offending, and the 25 per cent discount for guilty plea was appropriate. The appeal was dismissed.

This case is a reminder that the approach to sentencing is a matter of individual discretion and assessment, and the Court will not be swayed by a particular way in which total sentences must be put together in respect of multiple offending. The Court will consider the totality of the offending and the gravity of the overall offending when determining the appropriate sentence. The Court will also consider the offender’s previous convictions and the discount for a guilty plea. This case also highlights the importance of considering the totality principle when determining the appropriate sentence. The Court found that the Judge had the totality of the offending at the forefront of his mind when determining the sentence, and the sentence imposed was within the available range and did not breach the totality principle.

Orders