Mitic v Police

Case [2023] NZHC 2835


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000388

[2023] NZHC 2835

BETWEEN

ALEKSA MITIC

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 October 2023

Appearances:

P J Syddall for the Appellant

R van Boheemen for the Crown

Judgment:

17 October 2022


JUDGMENT OF ANDERSON J


This judgment was delivered by me on17 October 2023 at 3:00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:    Crown Solicitor, Auckland

MITIC v POLICE [2023] NZHC 2835 [17 October 2022]

Introduction

[1]                 Aleksa Mitic appeals against the sentence of two years and six months’ imprisonment imposed by Judge K G Davenport KC in the District Court at Auckland on a charge of aggravated robbery.1

[2]The appellant’s grounds of appeal are that:

(a)further discounts for personal mitigating factors should have been applied; and

(b)a sentence of home detention ought to have been imposed.

[3]                 The Crown says that the end sentence imposed was not manifestly excessive and the appeal should be dismissed.

[4]                 This Court must allow the appeal if it is satisfied that there is an error in the sentence and that a different sentence should be imposed.2 The overall question on appeal is whether the sentence was manifestly excessive, the sentence is wrong in principle, or whether there are exceptional circumstances.3

The offending

[5]                 The aggravated robbery involves Mr Mitic taking a box cutter and a pre-written note demanding cash into the Takapuna Branch of the ASB Bank.

[6]                 Having entered the bank, he produced the note (“$1,000 ASAP”) to the teller, and pointed the box cutter at her, retracting and extending the blade several times in her direction. He then stood closely behind another teller who was attempting to get cash for him and banged the box cutter (with blade extended) against the money machine several times, telling her to hurry up. Mr Mitic left the bank with $300.


1      Crimes Act 1961, s 235(c): maximum penalty of 14 years’ imprisonment.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

Sentence indication

[7]                 Mr Mitic has a long history of alcohol addiction. On 6 September 2022  Judge A Fitzgibbon was advised that Mr Mitic wished to apply for admittance to the Alcohol and Other Drug Treatment Court (AODTC). A sentence indication of less than three years is a prerequisite for entry. Judge Fitzgibbon gave an informal sentence indication of “just under three years”, which was accepted. The end ranges appearing in the submissions filed in advance of this indication suggest that a guilty plea discount of 25 per cent was the only discount applied during the sentence indication.4

[8]                 Mr Mitic was accepted into the AODTC programme on 26 January 2023 but was exited from it on 21 April 2023.

Sentencing decision

[9]                 Due to an issue with the recording equipment, the sentencing decision in the District Court was not  audio  recorded  and  no  Judge’s  notes  were  retained.  Judge Davenport provided reconstructed…

Continue reading Mitic v Police

Sign in free to access the full text

Details
AGLC
Mitic v Police [2023] NZHC 2835
Case
[2023] NZHC 2835
Decision Date

CaseChat Overview and Summary

Aleksa Mitic appealed against his two-year-and-six-month imprisonment sentence for aggravated robbery, arguing that the District Court judge should have applied additional discounts for personal mitigating factors and that home detention should have been imposed instead of imprisonment. The Crown argued that the sentence was not manifestly excessive and that the appeal should be dismissed. The High Court needed to decide whether the sentence was manifestly excessive, wrong in principle, or whether there were exceptional circumstances warranting a different sentence.

The High Court considered the appeal on the basis that Aleksa Mitic's addiction and personal circumstances warranted a higher discount than what was applied. The court noted that a discount for addiction, which was shown to be causative of the offending, was appropriate, but the 10 per cent discount applied was too low. The court also considered that a discount for remorse was open but not necessary, given the 25 per cent discount for the guilty plea. Regarding the time Aleksa Mitic spent in residential rehabilitation, the court found that it should be taken into account as a discount for efforts at rehabilitation rather than as equivalent to time spent on electronic monitoring bail. The court concluded that a discount of around 20 per cent was appropriate to reflect all mitigating factors. Given the overall circumstances of the offending and the appropriate discount, the court found the end sentence to be manifestly excessive.

The appeal was allowed, and the sentence was quashed. A new sentence of two years and two months’ imprisonment was imposed, reflecting the appropriate level of discount for all personal factors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.