Mitai v The Queen - [2021] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-130

[2021] NZHC 3216

BETWEEN
ISMAEL BENJAMIN MITAI

Appellant

AND

THE QUEEN

Respondent

Hearing: 25 November 2021

Appearances:

A Hill for Appellant

L Evans for Respondent

Judgment:

29 November 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 29 November 2021 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

ISMAEL BENJAMIN MITAI v R [2021] NZHC 3216 [29 November 2021]

[1] Mr Mitai pleaded guilty to charges of driving with excess breath alcohol causing death and driving with excess breath alcohol causing injury. On 22 October 2021 Judge G C Hollister-Jones sentenced him to two years four months imprisonment.1

[2] Mr Mitai appeals against sentence on the basis that the Judge failed to reduce the sentence sufficiently to recognise mitigating factors for which he was entitled to credit.

The charges

[3] Both charges were laid as a result of an incident that occurred late on the evening of 31 October 2020. On that evening Mr Mitai had gone to a hotel at the southern end of the Tokoroa township with several associates. He had volunteered to be the designated driver for the group but unfortunately consumed several alcoholic drinks during the evening.

[4] At about 11.30 pm Mr Mitai and his associates left the hotel to drive home. Mr Mitai then drove the vehicle in a northerly direction towards the town centre on State Highway 1. The weather conditions at the time were very poor. It was raining heavily and was very windy. The road surface was wet and slippery.

[5] Mr Mitai was driving in excess of the posted speed limit as he entered the town precincts. He failed to see signage and markings relating to a pedestrian crossing. As he passed through the pedestrian crossing he felt an object collide with his vehicle. He believed that his vehicle had been struck by a branch falling from a tree and pulled over to the side of the road. When he got out of his vehicle he realised his vehicle had struck two pedestrians as they were walking across the pedestrian crossing.

[6] The two pedestrians were an elderly couple who were undertaking a campervan trip around the North Island. They were making their way back to their campervan after spending the evening in town. The male victim had died by the time the emergency services arrived and his wife was severely injured. She subsequently

1 R v Mitai [2021] NZDC 20914.

required extensive surgery and will suffer life-long effects as a result of the injuries she received when she was struck by Mr Mitai’s vehicle.

[7] When the police initially spoke to Mr Mitai he denied he had been drinking. However, breath screening procedures detected the presence of alcohol on his breath. A subsequent evidential breath test returned a reading of 770 micrograms of alcohol per litre of breath. This is more…

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 Mitai v The Queen

Details

AGLC: Mitai v The Queen [2021] NZHC 3216
Case: [2021] NZHC 3216
Decision Date: 29 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Ismael Benjamin Mitai appealed against his sentence for driving with excess breath alcohol causing death and causing injury. The sentencing court had imposed a sentence of two years and four months imprisonment, which Mr Mitai considered to be too harsh. The appeal hinged on the argument that the sentencing judge failed to sufficiently reduce the sentence to reflect mitigating factors. The appeal was heard on 25 November 2021, and judgment was delivered by Justice Lang on 29 November 2021.

The legal issues before the court were whether the sentencing judge had erred in applying the appropriate level of discount for the mitigating factors presented by Mr Mitai. The mitigating factors included Mr Mitai's remorse, his participation in a restorative justice conference, the payment of $5,000 in emotional harm reparations to the surviving victim, and his rehabilitative efforts. The Crown argued that the sentence was appropriate given the severity of the offending and the absence of factors such as youth or good character that might have warranted a higher discount.

The court found that the level of discount to be applied for mitigating factors is largely a matter of judicial discretion, and the sentencing judge's approach was not manifestly excessive. While Mr Mitai had expressed genuine remorse and participated in rehabilitative efforts, these factors did not warrant a discount higher than what the sentencing judge had applied. The devastating consequences of the offending, including the death of one victim and severe injury to another, warranted a sentence that reflected the gravity of the crime. The court held that the sentence of two years and four months imprisonment was appropriate and dismissed the appeal.

The court's final orders were that the appeal against sentence was dismissed, and the original sentence of two years and four months imprisonment was upheld.

Orders