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.