Mitchell v R [2017] NZCA 233 (1 June 2017)

Last Updated: 15 June 2017

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.

2. The appeal is allowed.

100. The sentence of 15 months’ imprisonment is quashed.

4. A 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

[1] 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

[2] 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.
[3] 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.
[4] 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 wellbeing 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.
[5] 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.
[6] The victim’s family accepted the reality of events leading up to the accident, but remained angry about the events following the accident. Mr Mitchell and the family participated in a restorative justice conference. Outcomes included the three friends agreeing to undertake first-aid training.
[7] Mr Mitchell is 23 years of age. He has a daughter who is aged three. Mr Mitchell does not live with the mother but at the time of sentencing they had joint-custody arrangements which meant his daughter stayed with him six days each fortnight. He also provided child support payments. Mr Mitchell owned his own house which he shared with his current partner of two years.
[8] Mr Mitchell had been in stable employment with the same firm for nine years. He had started there as a school boy sweeping floors but had progressed in his job. He had acquired an engineering qualification and was a valued member of the business.
[9] Mr Mitchell had one previous conviction: drink driving in August 2014. The present incident occurred on 11 September 2016.

Sentencing

[10] In the District Court, Judge Turner took a starting point of 24 months, which was then uplifted by one month for the previous offence.^[5] Deductions for the early guilty plea and other positive factors saw the sentence reduced to 15 months’ imprisonment.^[6]
[11] At issue in the High Court, and now in this application for a second appeal, is the refusal to substitute a sentence of home detention. There was a suitable address and a positive report.
[12] Judge Turner had earlier identified the relevant sentencing principles as denunciation, deterrence (both personal to Mr Mitchell and in general) and accountability.^[7] His Honour considered there was high public interest in deterring alcoholimpaired driving, particularly in Mr Mitchell’s age group.^[8] Overall the gravity of the offending was assessed as high.^[9]
[13] Concerning home detention, the Judge noted some other decisions for like offending where home detention had not been substituted.^[10] His Honour observed the following in respect of Mr Mitchell:

[54] Factors in favour of commuting the sentence in your case include your relative lack of criminal history, your age and personal circumstances, including remorse and the entry of an early guilty plea, and the availability of a suitable address. In the first victim impact statement, the victim’s family ask that you not suffer any more for what occurred and that you be given a chance.

[55] Factors against commuting the sentence include the seriousness of the offence itself — aggravated careless driving causing death, the seriousness of this particular offending, the consequences arising from your aggravated carelessness, and the need to denounce such behaviour and to deter you and others like you from behaving in this way in the future.

[56] After considering all of the arguments in relation to this issue, I am not satisfied that the sentencing principles relevant to your case can be met by the imposition of a sentence of home detention.

[14] Mr Mitchell submitted on appeal to the High Court that the District Court had made three errors.^[11] The first concerned an alleged factual misstatement, the second a claim that the Judge had misunderstood Mr Mitchell’s employment situation, and the third that insufficient attention had been given to Mr Mitchell’s child care responsibilities, and the need to provide child support payments to his daughter’s mother.
[15] Dunningham J analysed each and considered either that there was no error, or that any error had not been material to the sentence.^[12] Overall the refusal to commute to home detention was assessed as a decision available on the facts and within the sentencing range.^[13] Accordingly, the appeal was dismissed.

Application for a second appeal

[16] Section 253(3) of the Act provides that leave for a second appeal may only be given if the Court is satisfied that either the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur if leave is not given. Mr Chisnall relies upon the miscarriage limb. The miscarriage is said to lie in errors made in the preceding decisions.
[17] The Crown accepts that the circumstances were such that many judges may have imposed a sentence of home detention. However, it is submitted 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.
[18] It is not necessary in the present case for this Court to analyse in any depth the correct approach to s 253(3) and to do so would undesirably delay matters. We are satisfied material errors were made in the original sentencing exercise that were not corrected in the High Court. At issue is the question of whether a young man of 23 years should be subject to a sentence of imprisonment, and we consider a miscarriage of justice may have occurred that requires further consideration by a second appeal court. Leave to appeal is therefore granted.

Decision

[19] We focus on the factors identified by the District Court as telling against the imposition of a sentence of home detention.^[14]
[20] The first is the seriousness of the offence. Recognising always that a life has been lost, we nevertheless do not agree that this charge is one that, by its nature, tells against a sentence of home detention. There is no existing authority to that effect, and it is an offence that carries a maximum penalty of only three years’ imprisonment. Comparatively that is far from the most serious of offences. It is inevitable that most convictions under it, if they result in imprisonment at all, will result in sentences within the home detention range. It is not an offence which tells against that choice of sentence.
[21] The second factor identified is the particular seriousness of this example of the offence. We cannot agree that is a correct assessment of the present facts. The core elements of the offence are careless driving under the influence of alcohol or drugs and the loss of a life or the causing of bodily injury. Those factors will of necessity be a constant presence in this charge. What can be said of this case is that the quad bike was seriously overloaded, meaning there was no real ability for the passengers to hold on adequately, and none of the young men had helmets. However, the driving was otherwise at the lowest end of culpability. The unadjusted starting point of two years’ imprisonment already reflects the aggravating features we have identified. We do not agree with the Court’s assessment that the offence was one of high gravity and culpability.
[22] The next factors identified were the need for personal and general deterrence. Concerning the former, we accept the previous drink-driving offence is relevant, albeit already reflected in the uplift given by the Judge. However, there was a great deal about Mr Mitchell that was positive, including his immediate acceptance of responsibility and full cooperation with police. There is little to suggest he was an offender who needed to be the subject of a deterrent sentence.
[23] As for general deterrence, the authorities have not recognised drink driving or drink driving causing death as a special class of offences where deterrence necessarily must prevail. We do not consider the material was available to the Judge to decline home detention in this particular case for that reason. We also observe, for completeness, that the cases referred to in the District Court are not to be seen as precedents for an approach that limits or forecloses the availability of home detention.^[15] They were decisions on their own facts.
[24] It follows from this analysis that we consider the sentencing Judge erred in his identification of matters that told against the imposition of a sentence of home detention. By contrast, the case for a sentence of home detention was strong. It is clear that this tragic incident is out of character for Mr Mitchell, who has in other respects shown considerable responsibility in his personal life and employment situation. Mr Mitchell has child-care responsibilities both in terms of direct caring and in providing income to assist the mother to discharge her obligations. If the circumstances of the offending did not demand otherwise, a sentence less than imprisonment was an appropriate outcome.

Conclusion

[25] The application for leave to bring a second appeal is granted.
[26] The appeal is allowed and the sentence of 15 months’ imprisonment is quashed.
[27] In its place we impose a sentence of four months’ home detention. The length of the sentence reflects that which would have been imposed, less time served in prison. The standard conditions apply. The applicant is to reside at 12 Gantry Place, Cromwell.
[28] The special conditions are:

• (a) not to possess, consume or use any alcohol or drugs not prescribed to you; and
• (b) to attend and complete an appropriate alcohol and drug intervention to the satisfaction of the probation officer.

[29] This new sentence is to take effect as soon as the appropriate electronic monitoring equipment can be installed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[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.

^[5] Police v Mitchell, above n 1, at [42] and [47].

^[6] At [48]–[50].

^[7] At [33].

^[8] At [39].

^[9] At [41].

^[10] At [43]–[44] discussing R v Jack DC Invercargill CRI-2013-025-1264, 5 September 2013 and Hanly v Police HC Rotorua CRI-2009-463-104, 10 March 2010.

^[11] Mitchell v Police, above n 4, at [19].

^[12] At [21]–[29].

^[13] At [35].

^[14] See [13] of this judgment.

^[15] R v Jack, above n 10; and Hanly v Police, above n 10.