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.
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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.”
After sentencing, Mitchell’s father Steve Mitchell said he was not looking to exonerate his son from the consequences of his actions and expressed his deepest sympathy to the Grubb family, but they were in shock and disbelief at the sentence.
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.
Mitchell and the two friends took Grubb home instead of calling emergency services as they thought he was just drunk and not seriously injured. Another friend called an ambulance about an hour later.
The trio initially told the friend and ambulance officers Grubb had fallen from a fence before telling the truth when learning he was in Dunedin Hospital.
His life support was turned off five days later.
Mitchell went to Grubb’s bedside the following morning after learning he was critically injured.
Mitchell’s family declined to comment on the appeal decision.