Mitchell v Police - [2017] NZHC 530

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000012 [2017] NZHC 530

BETWEEN
CODY ETHAN MITCHELL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 March 2017

Appearances:

F E Guy Kidd for Appellant
R D Smith for Respondent

Judgment:

22 March 2017

JUDGMENT OF DUNNINGHAM J

[1] Mr Mitchell appeals against his sentence of 15 months’ imprisonment on the charge of causing death by careless use of a motor vehicle while under influence of alcohol. He was sentenced before Judge Turner in the Alexandra District Court on
15 February 2017. He was also disqualified from driving for two years and ordered to pay $2,000 reparation for emotional harm.

[2] The appellant does not challenge the length of the sentence, nor the additional penalties imposed. The only issue on appeal is whether the Judge erred by imposing a sentence of imprisonment in the circumstances, instead of a sentence of home detention.

Facts

[3] On Saturday 10 September 2016, the appellant and victim both attended a party, along with other friends and associates. Over the course of the afternoon and evening, the group consumed alcohol. Around midnight, the victim and the
appellant left the party and walked to a nearby bar where they continued to drink

MITCHELL v NEW ZEALAND POLICE [2017] NZHC 530 [22 March 2017]

alcohol. Around 1.00 am they left the bar, with others, and walked to the victim’s

house.

[4] A decision was made to return to the party on the opposite side of Cromwell. This resulted in the appellant, the victim and two others walking a short distance to the appellant’s home in order to use the appellant’s quad bike to transport everyone to the party. The bike was designed to carry only one person. It has since been examined and found to have substantial faults.

[5] The appellant rode the bike and the victim perched or sat on the small cargo deck behind him. The other two men sat on the two wheel arches, one on either side. No-one wore a helmet. The appellant drove for some distance at a low speed. As the bike entered a laneway, one of the passengers noticed that the victim was no longer on the bike and alerted the appellant. They returned and found the victim lying prone on the road, bleeding from a cut to the back of his head. The victim began vomiting.

[6] The appellant and his associates underestimated the seriousness of the victim’s injuries and returned him to his house. They took some time to look after him and put him to bed. A sober person at the address was asked to care for him. The group then proceeded on to the party.

[7] At about 3.15 am, the person caring for the victim became concerned and called an ambulance. Ambulance officers ascertained that he had a significant head injury. The victim was transported to Dunstan Hospital and then flown to Dunedin Hospital in a critical condition. He was placed on life support. It was…

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2017] NZHC 530
Case: [2017] NZHC 530
Decision Date: 22 March 2017

CaseChat Overview and Summary

Mitchell appeals against his 15-month imprisonment sentence for causing death by careless use of a motor vehicle while under the influence of alcohol. The appeal focuses on whether the sentencing judge erred in imposing imprisonment instead of home detention. The appellant does not challenge the length of the sentence or the additional penalties. The High Court found that the sentencing judge did not err in imposing imprisonment. The appellant argued that the judge made an error in the facts of when the victim fell from the bike, but the Court found this did not materially affect the judge's decision. The appellant also argued that the judge did not appreciate the appellant would have employment if sentenced to home detention and that home detention would better allow the appellant to meet his responsibilities to his daughter. However, the Court found that these factors did not materially affect the judge's decision, as the appellant's employment was not particularly significant, and the judge did have regard to the appellant's family responsibilities. The Court also found that there was no error in the judge's reference to Quinn, as the judge appreciated he had the option of home detention available to him. The Court concluded that the appeal should be dismissed as the sentencing judge's decision not to commute the sentence of imprisonment was within range and justified by sentencing principles.

The final orders of the Court were that the appeal is dismissed.

Orders