Mitic v Police - [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…

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 Mitic v Police

Details

AGLC: Mitic v Police [2023] NZHC 2835
Case: [2023] NZHC 2835
Decision Date: 17 October 2022

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