Lawyers for a Cromwell man in jail after the death of a friend have applied a second time for leave to appeal his sentence.
Cromwell engineer Cody Ethan Mitchell, 23, was sentenced to 15 months jail without parole in February after his friend Andrew Paul Grubb, 20, fell from a quad bike he was in control of in Cromwell in the early hours of September 10.
A application for leave to appeal for a second time had recently been lodged with the Court of Appeal through Auckland lawyer Nick Chisnall.
The application follows a High Court appeal in March which was denied by Justice Dunningham.
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Chisnall was not prepared to discuss the planned appeal while it was still being considered and before he had talked directly to Mitchell.
However, Chisnall did say that it was “relatively unusual” for the Court of Appeal to grant a second appeal.
Mitchell has served three months of his sentence in Otago Corrections Facility near Milton.
His parents Steve and Linda Mitchell preferred not to comment while the application was in progress.
Mitchell’s last appeal was based on the whether the sentencing judge made “an error on the facts” when stating Grubb fell while Mitchell was turning the quad bike and that the judge did not appreciate Mitchell would have employment if given home detention enabling him to meet his responsibilities to his daughter.
Then lawyer Fiona Guy Kidd argued a sentence of home detention should have been imposed.
Justice Dunningham accepted there was an error when the judge said Grubb fell when Mitchell turned the bike.
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 felt both these things were not “material” in the outcome.
“Judge Turner’s decision not to commute the sentence of imprisonment was within range and was justified by sentencing principles,” she said.
The police summary of facts said Grubb fell from the back of Mitchell’s bike after the pair and two others decided to use the bike for transport to a party. 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.