Family of jailed Cromwell man Cody Ethan Mitchell will appeal sentence

Cody Mitchell and partner Emily Hart.
Supplied

Cody Mitchell and partner Emily Hart.

The family of a Cromwell man who contributed to the death of his friend says they are "numb and in disbelief" at his shock jail sentence.

Cody Ethan Mitchell, 23, of Cromwell, was sentenced to 15 months' in prison without the possibility of early release for careless driving under the influence of alcohol causing death.

His friend, Andrew Paul Grubb, 20, of Palmerston, died in Dunedin Hospital five days after he fell from a quad bike driven by Mitchell in the early hours of September 11.

On Thursday, 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.

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But he "most definitely" did not agree with the sentence handed down in the Alexandra District Court on Wednesday.

Mitchell's mother Linda said the family was shocked.

The Department of Corrections, police and Mitchell's lawyer Justine Baird had sought a sentence of home detention, she said.

Baird was unavailable for comment on Friday.

At a December 6 hearing, Judge Dominic Flatley indicated home detention would be an appropriate sentence.

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However, Judge Michael Turner said jail was the only option.

"We are numb and in disbelief that this has happened because we weren't expecting it," Linda Mitchell said.

Mitchell's partner Emily Hart said it felt unjust.

Complicating the situation was confusion over the charge Mitchell faced.

The hard copy charge sheet in the court accused Mitchell of "carelessly driving a motor vehicle" while the summary of facts, the digital archive and other disclosure documents used the words "aggravated" careless driving, leading the family to think the charge had been amended.

However, police prosecutor Sergeant Ian Collin said Mitchell pleaded and was sentenced on the right charge; section 62 (1) under the Land Transport Act.

Judges, police and lawyers referred to this charge as "aggravated careless driving ... the same", Collin said.

Grubb's father, Jeff Grubb, said he preferred not to comment on the sentence.

Linda Mitchell spoke with her son by phone at the Otago Corrections Facility in Milton on Thursday and said he was "flat".

"He sounded bloody terrible."

Mitchell was concerned for his two-year-old daughter he shared custody of with a former partner and whether an appeal had been lodged, she said.

What was happening with Mitchell's daughter was "up in the air" as was his employment as an engineer.

It could be a month before the family could visit Mitchell, she said.

"It doesn't just affect Cody being locked up in prison. It just goes right down the chain," Linda Mitchell said.

Sensible Sentencing Trust founder Garth McVicar said without knowing the intricacies of the case, there appeared to be grounds for appeal. The sentence appeared to be harsh.

"It's certainly at the upper end with some of the cases we've been involved in ... A lot of the cases that are worse than that end with home detention."

The fact it was a quad bike incident did not help Mitchell as quad bikes had been in the spotlight recently, he said.

By October last year, official figures put the number of quad bike-related deaths at 11, a record.

"[But] there's a few oddities there...It really opens it up for an appeal," he said.

Victoria University associate professor of law Dr Yvette Tinsley felt Mitchell had been charged correctly.

"It seems to me like he's pleaded and been sentenced to the right charge."

The influence of drinking and drug taking constituted "aggravated", she said.

Tinsley had seen sentences on this charge range from home detention to jail time but preferred not to comment on this case specifically.

The 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 in Cromwell. All were intoxicated and wore no helmets.

Mitchell and the two friends took Grubb home instead of calling emergency services thinking he was not seriously injured and just really drunk. Another friend called an ambulance about an hour later and he was flown to Dunedin.

His life support was turned off five days later.

Mitchell went to Grubb's bedside the following morning after learning he was critically injured.

In a separate case last year Regan Edward Laughton was sentenced to 11 months home detention and 140 hours of community work after crashing his car near Kurow and killing 23-year-old Jarrad Blackler.

In July 2015, Stephen James Henare-Mason was sentenced to four and a half months' home detention and 175 hours' community work for aggravated careless driving causing the death of his best friend, 25-year-old Luke Carl Keenan.

 - Stuff

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