Prison sen­tence ap­peal re­jected

Central Otago Mirror - - YOUR PAPER, YOUR PLACE - STAFF RE­PORTER

An ap­peal to have a prison sen­tence down­graded af­ter a man died in a quad bike fall has failed.

Cromwell man Cody Ethan Mitchell, 23, was sen­tenced in Fe­bru­ary to 15 months’ prison for care­less driv­ing un­der the in­flu­ence of al­co­hol caus­ing the death of Andrew Paul Grubb, 20.

A High Court ap­peal last month through lawyer Fiona Guy Kidd was de­nied by Jus­tice Dun­ning­ham.

Kidd did not ar­gue the length of the sen­tence but ar­gued a sen­tence of home de­ten­tion rather than prison should have been im­posed con­sid­er­ing the cir­cum­stances.

She said the sen­tenc­ing judge made ‘‘ an er­ror on the facts’’ when he stated the vic­tim fell while Mitchell was turn­ing the quad bike. She also ar­gued the judge did not ap­pre­ci­ate that Mitchell would have em­ploy­ment if given home de­ten­tion and that he would be bet­ter able to meet his re­spon­si­bil­i­ties to his young daugh­ter and con­tinue to pay child support.

In dis­cussing sub­mis­sions, Jus­tice Dun­ning­ham ac­cepted there was an er­ror when the judge said Grubb fell when Mitchell turned the bike, but she did not con­sider it ‘‘ma­te­rial’’ in the out­come.

Jus­tice Dun­ning­ham also felt the judge was of the view that em­ploy­ment was not avail­able to Mitchell if home de­ten­tion was im­posed or he sim­ply ‘‘fell into er­ror’’ but again felt it not ma­te­rial.

With re­gard to the im­pact on Mitchell’s daugh­ter, Jus­tice Dun­ning­ham said it was clear the judge did have re­gard to Mitchell’s per­sonal cir­cum­stances when con­sid­er­ing a sen­tence.

‘‘Judge Turner’s de­ci­sion not to com­mute the sen­tence of im­pris­on­ment was within range and was jus­ti­fied by sen­tenc­ing prin­ci­ples,’’ Jus­tice Dun­ning­ham said in a writ­ten de­ci­sion.

‘‘Ac­cord­ingly, this ap­peal is dis­missed.’’

The po­lice sum­mary of facts said Grubb fell from the back of Mitchell’s bike on Septem­ber 10 af­ter the pair and two others de­cided to use the bike for trans­port to a party in Cromwell. All were in­tox­i­cated and wore no hel­mets.

Grubb was flown to Dunedin Hospi­tal with a crit­i­cal head in­jury.

His life support was turned off five days later.

Mitchell’s fam­ily de­clined to com­ment on the ap­peal de­ci­sion.

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