Mika v R [2013] NZCA 648 (12 December 2013)

Last Updated: 24 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA688/2013 [2013] NZCA 648
BETWEEN	FABIAN JESSIE MIKA Appellant
AND	THE QUEEN Respondent

Hearing:	20 November 2013
Court:	Harrison, Simon France and Dobson JJ
Counsel:	J R Rapley for Appellant J M Jelas for Respondent
Judgment:	12 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Fabian Mika pleaded guilty in the High Court at Christchurch to charges of manslaughter, being an unlicensed driver who failed to comply with a prohibition, failing to stop or ascertain injury or death after a crash and failing to stop when followed by red and blue flashing lights. He was sentenced by David Gendall J to a term of six years and nine months imprisonment.^[1]
[2] Mr Mika appeals the sentence on the ground that it is manifestly excessive because of the Judge’s failure to discount the sentence by 10 per cent from its otherwise appropriate starting point to reflect his Māori heritage and its associated social disadvantages.

Facts

[3] During the evening on 21 February 2013 Mr Mika consumed a considerable amount of alcohol and smoked cannabis at a Christchurch property. Just after midnight he drove a stolen motor vehicle for the purpose of collecting extra alcohol supplies. He had three passengers. One was a 15 year old boy, Ethan
Takitimu-McKenzie.
[4] Mr Mika was observed by a traffic officer to be driving the vehicle along New Brighton Road at an excessive speed. The officer attempted to attract Mr Mika’s attention by activating his vehicle’s flashing lights and siren. Mr Mika drove away at speeds of up to 90 kph in a speed zone of 50 kph, reduced in parts to 30 kph due to poor roading surface. He accelerated through a busy intersection at speeds of up to 100 kph on the wrong side of the carriageway. The police abandoned their chase.
[5] Mr Mika ignored his passengers’ requests to stop and allow them to leave the vehicle. When entering roadworks at speeds of about 105 kph his vehicle struck barriers causing it to roll and slide for some distance on its roof. Ethan
Takitimu-McKenzie was thrown from the vehicle and killed. Mr Mika ran away without checking whether anybody was injured.

Appeal

[6] Mr Rapley for Mr Mika asserts that David Gendall J erred in failing to allow a fixed 10 per cent reduction against the sentence starting point of nine years imprisonment to reflect the fact that Mr Mika was of Māori heritage and thus socially disadvantaged. He made the same submission unsuccessfully on sentencing in the High Court. He relies upon authorities in other jurisdictions, particularly in Australia^[2] and in Canada.^[3] He submits that David Gendall J should have taken into account the unique systemic or background factors leading to the appearance of a Māori offender in court; the types of sentencing procedures and sanctions which may be appropriate in the circumstances because of a Māori heritage or connection; the broad systemic background factors affecting Māori from socially deprived communities wherever they reside; and the general principle of factoring into the sentencing exercise that a jail term for a Māori offender may in some circumstances be longer than a term imposed on a non-Māori offender for the same offence.
[7] An appeal heard before a Divisional Court of this Court, advanced without the benefit of argument developed on a proper evidential foundation, is not the place for a discourse on sentencing principles and policy. We are able to address Mr Rapley’s submission in relatively short order.
[8] The Sentencing Act 2002 is a comprehensive code of the sentencing purposes and principles and the provisions of general application which Parliament requires courts to follow when sentencing offenders. In particular, s 8 prescribes 10 mandatory principles which a court must take into account when dealing with an offender. Ethnicity is not included. However, s 8(i) identifies:

... the offender’s personal, family, whanau, community and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose ...

Furthermore, as Ms Jelas emphasises, s 9(2), which is similarly mandatory in identifying the mitigating factors to be taken into account to the extent that they are applicable, also omits any reference to ethnicity. While this is an important legislative indication, we acknowledge that s 9(2) of the Act is not exhaustive given s 9(4)(a) provides that a court may take into account any other mitigating factor that the court thinks fit.

[9] We are satisfied that two factors in particular decisively answer Mr Rapley’s submission. First, an absolute requirement that a court allow an offender a fixed discount against an otherwise appropriate starting point solely on account of his or her ethnicity is of such fundamental and far-reaching importance to sentencing policy that it could only be sanctioned by Parliament: and if the legislature had intended that courts must apply such a principle then we have to assume that it would have made that intention plain in the Sentencing Act or a subsequent statutory instrument.
[10] Second, Parliament could not have intended that a standard discount based on ethnicity should be applied undiscerningly by courts irrespective of whether that factor related to the offender’s culpability for a particular crime. A judicial evaluation of an offender’s culpability is an essential element of the sentencing process without requiring, as Ms Jelas accepts, proof that ethnicity is causally linked to the particular offending. Mr Rapley did not argue that Mr Mika’s Māori heritage was relevant to his blameworthiness for the lead charge of manslaughter or Mr Mika’s ethnicity in any way mitigated the aggravating factors isolated by the Judge – driving at excessive speed for a long and persistent period, causing death in the course of dangerous driving while attempting to avoid apprehension, ignoring his passengers’ warnings and pleas, excessive consumption of alcohol or drugs, and failing to stop and attempting at further risk to the victims to escape.
[11] Nishikata v Police is an example of a case where the nexus between Māori heritage and culpability was established.^[4] On appeal to the High Court Gendall J reduced a sentence of 18 months imprisonment to two years supervision where the offender strongly identified as being Māori and acted violently when goaded by the victim’s abuse of a Māori elder for whom she had great respect. With insight, and before the advent of the Sentencing Act, the Judge noted that:^[5]

Equality before the law is fundamental to the administration of justice, but ... the penalty must reflect matters of mitigation arising from an offender’s background and which recognises the structure and operation of the society within which he lives and in particular the degree to which the cultural or ethnic heritage predominates, in any problems of a cross-cultural nature.

[12] Mr Rapley emphasises the disproportionate representation of those of Māori heritage in New Zealand’s prison population. Judges in all jurisdictions are acutely conscious of that factor and its reflection of the economic, social and cultural disadvantages suffered by many Māori. We accept that those circumstances frequently contribute to offending. But it does not logically follow that a person is more likely to be at a disadvantage and to offend simply by virtue of his or her Māori heritage. To some such a proposition may appear offensive.
[13] We add that the Australian and Canadian authorities upon which Mr Rapley places emphasis were decided in very different statutory contexts which means they are of no assistance on this appeal.
[14] Finally, we note, as did David Gendall J in the High Court, that s 27 of the Sentencing Act entitles an offender to request the Court before sentencing to hear any person or persons called to speak on, among other things, the offender’s whanau and cultural background. It was open to Mr Rapley to take this step, but he did not do so.
[15] We are not satisfied that David Gendall J failed to apply the statutory purposes and principles when sentencing Mr Mika to six years and nine months imprisonment. Mr Mika’s ground for challenging the length of his term cannot be sustained.

Result

[16] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Mika [2013] NZHC 2357.

^[2] R v Fernando (1992) 76 ACR 58 (NSWSC).

^[3] R v Gladue [1999] 1 SCR 688; and R v Ipeelee 2012 SCC 13, [2012] 1 SCR 433.

^[4] Nishikata v Police HC Wellington AP126/99, 22 July 1999.

^[5] At 8.