Ap­pli­ca­tion for sec­ond ap­peal


A man jailed af­ter his friend fell from the quad bike he drove is bas­ing a sec­ond ap­peal on a ‘‘mis­car­riage of jus­tice’’.

Cody Mitchell is serv­ing a 15-month prison sen­tence in Otago Corrections Fa­cil­ity af­ter his friend, An­drew Grubb, 20, died as a re­sult of fall­ing from a quad bike Mitchell was in con­trol of.

The High Court re­jected an ap­peal the 23-year-old fa­ther made in March.

Mitchell is try­ing again. He has lodged an ap­pli­ca­tion for leave to ap­peal with the Court of Ap­peal. Fairfax was granted ac­cess to those doc­u­ments, with Mitchell’s per­mis­sion.

His ap­pli­ca­tion says ’’a mis­car­riage of jus­tice may oc­cur un­less the ap­peal is heard’’.

The District Court judge con­sid­ered de­ter­rence, de­nun­ci­a­tion and ac­count­abil­ity for his ac­tions dur­ing sen­tenc­ing, it says.

‘‘His Hon­our failed to con­sider other equally rel­e­vant pur­poses and prin­ci­ples - in par­tic­u­lar my re­ha­bil­i­ta­tion and rein­te­gra­tion and the obli­ga­tion to im­pose the least re­stric­tive sen­tence ap­pro­pri­ate.’’

The Sen­tenc­ing Act

says im­pris­on­ment should be a ‘‘last re­sort’’.

‘‘[The judge] did not make a prin­ci­pled and con­sid­ered choice be­tween im­pris­on­ment and home de­ten­tion.’’

In the High Court, Jus­tice Rachel Dun­ning­ham ’’erred’’ when con­clud­ing a ‘‘factual er­ror re­gard­ing my de­gree of care­less­ness’’ did not af­fect the sen­tence im­posed, Mitchell says in the doc­u­ments.

That er­ror was the judge stat­ing Mitchell was turn­ing the quad bike when the po­lice sum­mary of facts in­di­cate he was trav­el­ling at mod­er­ate-speed and not dan­ger­ously.

‘‘This er­ror ought to have sat­is­fied the High Court judge to in­ter­vene and re-eval­u­ate the sen­tence.’’

Both courts failed to pay ‘‘suf­fi­cient re­gard’’ to his youth, child­care re­spon­si­bil­i­ties, re­ha­bil­i­ta­tive prospects, early guilty plea, restora­tive jus­tice in­volve­ment, re­morse and his be­ing as­sessed as a low risk of re­of­fend­ing, the doc­u­ments say.

Po­lice charged Mitchell with care­less driv­ing un­der the in­flu­ence of al­co­hol caus­ing death af­ter the Septem­ber 11 in­ci­dent.

He was sen­tenced in Alexan­dra on Fe­bru­ary 14.

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