Mitai v The Queen
[2021] NZHC 3216
•29 November 2021
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 than three times the legal drink driving limit.
The sentencing process
[8] The sentencing process occurred in two stages. The first was a sentence indication given by Judge A J S Snell on 9 July 2021. Judge Snell noted that the incident giving rise to the charges was the end result of a sustained period of bad driving in which Mr Mitai failed to drive at a speed appropriate to the weather conditions on the evening in question. He was also travelling in excess of the posted speed limit. His vehicle struck the pedestrians in circumstances where the Judge considered it unlikely that Mr Mitai even knew he was travelling through a pedestrian crossing. In addition, Mr Mitai had consumed alcohol and was well over the legal limit for drink driving. Finally, Mr Mitai has previous convictions for driving with excess breath alcohol on three occasions between 2001 and 2003.
[9] Taking these factors into account the Judge selected a starting point of three years six months on the lead charge of driving with excess breath alcohol causing death. He applied an uplift of nine months to reflect the other charge, leading to an overall starting point of four years three months imprisonment. The Judge indicated that a discount of 25 per cent would be available for guilty pleas and that any other mitigating factors could also be considered at sentencing.
[10] Mr Mitai then entered guilty pleas. By the time he came to be sentenced the prosecution acknowledged that the speed at which Mr Mitai was driving at the time he struck the two pedestrians was less than the prosecution had alleged during the hearing before Judge Snell. Mr Mitai’s speed at the time he entered the pedestrian crossing was now estimated to be between 69 and 83 kilometres per hour when the posted speed limit was 60 kilometres per hour. This prompted Judge Hollister-Jones to reduce the starting point on the lead charge to one of three years three months
imprisonment. He maintained the nine month uplift for the second charge, resulting in an overall starting point of four years imprisonment.
[11] The Judge then applied the indicated discount of 25 per cent to reflect guilty pleas. He applied a further discount of 12 per cent to reflect remorse expressed by Mr Mitai at a restorative justice conference, together with a payment in the sum of
$5,000 he proposed to make by way of emotional harm reparation.
[12] The Judge then applied a further discount of five per cent to reflect insight that Mr Mitai had demonstrated into the offending and rehabilitative efforts he had undertaken.
[13] This meant that Mr Mitai received a total discount of 42 per cent, or 20 months. This produced the end sentence of two years four months imprisonment.
The appeal
[14] On Mr Mitai’s behalf Mr Hill contends the Judge erred in applying a discount of just 12 per cent to recognise mitigating factors other than the guilty pleas. He contends the Judge ought to have applied a further discount of at least 25 per cent to reflect:
(a)The remorse expressed by Mr Mitai following the offending;
(b)The fact that he had attended a successful restorative justice conference at which he had apologised to the surviving victim;
(c)Prospects of rehabilitation;
(d)The emotional harm payment he has now made to the surviving victim.
[15] Mr Hill points out that discounts of up to 30 per cent have been applied in other cases where mitigating factors of the type relied on by Mr Mitai were present.2 He
2 R v Fanguna [2009] NZCA 316 (discount of 30 per cent approved to reflect youth, previous good character and participation in a successful restorative justice conference; R Martin [2017] NZHC 1571 (discount of 15 per cent applied to reflect genuine remorse and participation in a successful
acknowledges the Judge made an allowance for these at sentencing but says the level of this could have been slightly higher.
Decision
[16] The level of discount to be applied for factors of the type relied upon by Mr Mitai is very much a matter of judicial discretion. Furthermore, other sentencing decisions are generally of limited assistance because the personal circumstances of offenders varies widely from case to case. Mr Mitai’s position clearly differs from those of the offenders in several of the cases Mr Hill has cited because Mr Mitai cannot claim a discount for youth or previous good character. He is now 40 years of age and has two previous convictions, albeit historic, for driving with excess breath alcohol.
[17] Although Mr Mitai has now attended counselling on several occasions he does not have any clearly identified rehabilitative needs. The incident that gave rise to the charges resulted from the consumption of alcohol on one occasion coupled with a single episode of bad driving. The pre-sentence report confirms that he and his wife have stopped drinking alcohol and, other than his previous convictions, there are no indications that he has a serious issue with consumption of alcohol. He was, however, entitled to credit for his decision to stop drinking alcohol.
[18] The only other mitigating factors for which Mr Mitai was entitled to credit were his genuine remorse and desire to gain insight into his offending together with the emotional harm payment he has made to the surviving victim.
[19] On the Crown’s behalf Mr Evan referred me to the decision of the Court of Appeal in Rowles v R.3 The offending in that case was very different to Mr Mitai’s offending but the decision is noteworthy for the fact that the Court held that, on a stand-alone basis, credit of around eight per cent ought to have been applied to reflect genuine remorse.4 The Court then applied a discount of a further two per cent to reflect other mitigating factors personal to the offender. Given Mr Mitai’s personal
restorative justice conference); R v Pan [2020] NZHC 2342 (discount of 30 per cent applied to reflect previous good character, remorse and an emotional harm payment in the sum of $15,000).
3 Rowles v R [2016] NZCA 208.
4 At [18].
circumstances the approach taken in Rowles would suggest the discount of 17 per cent that the Judge applied in the present case could probably be regarded as generous.
[20] It also needs to be borne in mind that Mr Mitai’s offending has had devastating consequences. It caused the death of one victim and ruined the life of the second. It involved three aggravating factors – failing to drive to the conditions, driving at excessive speed and driving whilst well over the legal drink driving limit. When these factors are taken into account it is impossible to say that an end sentence of two years four months imprisonment is manifestly excessive.
Result
[21]The appeal against sentence is dismissed.
Lang J
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