Mitchell v The Queen - [2017] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

CA220/2017
[2017] NZCA 233

BETWEEN	CODY ETHAN MITCHELL Applicant
AND	THE QUEEN Respondent

Hearing:	31 May 2017
Court:	Harrison, Courtney and Simon France JJ
Counsel:	N P Chisnall for Appellant E J Hoskin for Respondent
Judgment:	1 June 2017 at 1.00 pm

JUDGMENT OF THE COURT

A The application for leave to bring a second appeal is granted.

B The appeal is allowed.
C The sentence of 15 months’ imprisonment is quashed.
DA sentence of four months’ home detention is substituted subject to the conditions set out in [27] and [28] of this judgment.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

Cody Mitchell applies under s 253 of the Criminal Procedure Act 2011 (the Act) for leave to bring a second appeal in relation to the decision of the Alexandra District Court not to commute a sentence of imprisonment to a sentence of home detention.[1] The charge was careless driving causing death while under the influence of alcohol.[2] The maximum penalty is three years’ imprisonment.[3] His first appeal was dismissed by Dunningham J in the High Court at Dunedin.[4]

Facts

[1]Police v Mitchell [2017] NZDC 3590.

[2]Land Transport Act 1998, s 62(1).

[3]Section 62(2)(a).

[4]Mitchell v Police [2017] NZHC 530.

Late one evening, after an extended period of drinking, four friends decided to ride a quad bike back along the streets of Cromwell to a party. Mr Mitchell was the driver. Two friends sat on each of the rear wheel bumpers and the other was positioned in between them. The quad bike was travelling slowly.
Tragically a little way into the journey the friend in the middle fell off. This was not immediately noticed by the other three but as soon as it was they returned and found him. The friend was lying prone on the road. He had a cut to the back of his head and had vomited. The latter event was assumed by the others to be associated with intoxication.
The friend was driven back on the quad bike to his address and left in the care of a sober person living there. Before departing for the party the other three had taken some time to look after their friend and put him to bed. However, the person caring for the victim became concerned for his well‑being and rang an ambulance. Tragically the young man had suffered a serious head injury from which he never recovered. He eventually passed away several days later.
When Mr Mitchell had become aware his friend had been airlifted to Dunedin Hospital, he travelled there to see the friend’s family. He was allowed to spend time with the victim before his death. Mr Mitchell spoke to police and from the outset accepted responsibility for his actions. It was accepted by everyone, and verified by independent witnesses, the driving itself had been in a very moderate manner. Mr Mitchell accepted he was intoxicated.
The victim’s family accepted the…

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 The Queen

Details

AGLC: Mitchell v The Queen [2017] NZCA 233
Case: [2017] NZCA 233
Decision Date: 1 June 2017 at 1.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Cody Ethan Mitchell applied for leave to bring a second appeal against the Alexandra District Court's decision not to commute his sentence of 15 months' imprisonment to a sentence of home detention. The charge against Mitchell was for careless driving causing death while under the influence of alcohol. The Crown accepted that many judges might have imposed a sentence of home detention but argued that no errors were made and there was sufficient seriousness in the offending to make the sentencing Judge's assessment within the range of possible outcomes. The Court of Appeal granted leave for a second appeal and allowed the appeal, quashing the sentence of 15 months' imprisonment and substituting a sentence of four months' home detention.

The legal issue before the Court was whether the District Court had erred in refusing to substitute a sentence of home detention. The Court found that the District Court had erred in its identification of matters that told against the imposition of a sentence of home detention. The Court held that the case for a sentence of home detention was strong and that the tragic incident was out of character for Mitchell, who had shown considerable responsibility in his personal life and employment situation. The Court also held that the seriousness of the offence and the need for personal and general deterrence did not necessarily preclude a sentence of home detention.

The Court of Appeal focused on the factors identified by the District Court as telling against the imposition of a sentence of home detention. The Court held that the seriousness of the offence did not preclude a sentence of home detention and that the unadjusted starting point of two years' imprisonment already reflected the aggravating features of the case. The Court also held that there was little to suggest that Mitchell was an offender who needed to be the subject of a deterrent sentence. Concerning general deterrence, the Court held that the authorities had not recognised drink driving or drink driving causing death as a special class of offences where deterrence necessarily must prevail. The Court also observed that the cases referred to in the District Court were decisions on their own facts and not precedents for an approach that limited or foreclosed the availability of home detention. The Court concluded that the case for a sentence of home detention was strong and that if the circumstances of the offending did not demand otherwise, a sentence less than imprisonment was an appropriate outcome.

The Court of Appeal allowed the appeal and substituted a sentence of four months' home detention for the sentence of 15 months' imprisonment. The length of the sentence reflected that which would have been imposed, less time served in prison. The standard conditions applied, and the applicant was to reside at 12 Gantry Place, Cromwell. The special conditions were not to possess, consume or use any alcohol or drugs not prescribed to the applicant and to attend and complete an appropriate alcohol and drug intervention to the satisfaction of the probation officer. The new sentence was to take effect as soon as the appropriate electronic monitoring equipment could be installed.

Orders