R v Mika - [2013] NZHC 2357

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-001924 [2013] NZHC 2357

THE QUEEN

v

FABIAN JESSIE MIKA

Hearing: 10 September 2013

Appearances: P J Shamy and MAJ Elliott for Crown
J R Rapley for Prisoner

Judgment: 10 September 2013

SENTENCE OF D GENDALL J

Introduction

[1] Fabian Jessie Mika (Mr Mika), you appear for sentence having pleaded guilty in the District Court to the following charges:

(a) manslaughter under ss 160(2)(a), 171 and 177 of the Crimes Act 1961 for which the maximum penalty is life imprisonment;

(b)being an unlicensed driver failed to comply with the prohibition under s 52(1)(c) of the Land Transport Act 1998 for which the maximum penalty is a $10,000 fine;

(c) failing to stop when followed by red/blue flashing lights under s 52(1)(c) of the Land Transport Act 1998 for which the maximum
penalty is a $10,000 fine;

R v MIKA [2013] NZHC 2357 [10 September 2013]

(d)failing to stop or ascertain injury or death after a crash under s 36(1)(c) of the Land Transport Act 1968 for which the maximum penalty is five years’ imprisonment, a $20,000 fine, and one year disqualification.

Background facts

[2] In the early hours of 22 February 2013 Mr Mika was the driver of a Toyota

Hilux Surf four wheel drive station wagon.

[3] This vehicle had been reported stolen on 7 February 2013. On 21 February

2013, Sergeant Woodbridge told Mr Mika that the vehicle was stolen, while speaking to him in relation to another matter.

[4] Ethan Takitimu-McKenzie was in the vehicle seated behind the defendant. Dylan Takitimu-McKenzie was in the back seat next to Ethan and Keith Ferguson was in the front passenger seat at the operative time.

[5] A police officer observed the vehicle speeding along New Brighton Road and activated red and blue flashing lights and sounded the siren. Mr Mika accelerated. He reached speeds of up to 90 kilometres per hour in an area in which the speed limit is 50 kilometres per hour. On some sections of New Brighton Road, Locksley Avenue and Gayhurst Road, the speed limit is reduced to 30 kilometres per hour due to earthquake damage to the road surface.

[6] Once Mr Mika turned on to Linwood Avenue heading towards Aldwins Road, he crossed to the opposing right hand lane and drove at speeds of up to
100 kilometres per hour on the wrong side of the road down the length of Linwood Avenue. He then headed north east on Dyers Road, towards Breezes Road and he reached speeds of well over 100 kilometres per hour.

[7] At a section of road works near the intersection of Dyers Road and Breezes Road, he was driving at a speed which caused him to lose control, hitting road barriers, following which the vehicle rolled. According to a Police Crash

Investigation Report, the vehicle was travelling at approximately 106 kilometres per

hour when it entered an “S” bend through these road works.

[8] Mr Mika left the vehicle and…

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 R v Mika

Details

AGLC: R v Mika [2013] NZHC 2357
Case: [2013] NZHC 2357
Decision Date: 10 September 2013

CaseChat Overview and Summary

Fabian Jessie Mika was convicted in the District Court of manslaughter, failing to comply with a police officer's request to stop, failing to stop or ascertain injury or death after a crash, and being an unlicensed driver. He was sentenced in the Christchurch Registry of the High Court of New Zealand. The legal issues the court was required to decide included the disputed facts, the starting point for sentencing, and the appropriate sentence for each charge. The court found that Mika was affected by alcohol and drugs, disregarded warnings from his passengers, and drove at excessive speeds. The court considered the aggravating and mitigating factors and decided on a starting point of nine years' imprisonment for the manslaughter charge, with a reduction of 20% for Mika's early guilty plea and an additional 5% for his remorse and background factors. Mika was sentenced to six years and nine months' imprisonment for manslaughter, two years' imprisonment for failing to ascertain injury, and was convicted and discharged for the other charges.

The final orders of the court were that Mika was subject to the Three Strikes Law and received a warning about the consequences of another conviction for a serious violent offence. He would serve any future sentence without parole or early release, except in the case of murder, where he would be sentenced to life imprisonment without parole unless it would be manifestly unjust.

Orders