Bitossi v The Queen - [2021] NZHC 3173

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-74

[2021] NZHC 3173

UNDER the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against Sentence

BETWEEN

ANGELO DOMINIC BITOSSI

Appellant

AND

THE CROWN

Respondent

Hearing: 24 November 2021

Appearances:

S J Fraser for the Appellant

D T E Moore for the Respondent

Judgment:

24 November 2021

JUDGMENT OF COOKE J

[1] The appellant appeals against a sentence of 20 months’ imprisonment on one representative charge of strangulation under s 189A(b) of the Crimes Act 1961 imposed by Judge D C Ruth in Wellington District Court.1

Facts

[2] The appellant and his then partner, who is the victim of the offending, had been in a relationship for approximately 14 years with a number of previous family harm incidents between them. Between 13 and 26 August 2020 the appellant was at the victim’s home whilst his sister was also present. He had moved in with her the year prior after a previous prison term. There was an argument that arose between the two

1 R v Angelo Dominic Bitossi [2021] NZDC 14978.

BITOSSI v THE CROWN [2021] NZHC 3173 [24 November 2021]

and the appellant grabbed the victim by the throat with both hands. The victim struggled to breathe as a result. This assault was witnessed by the appellant’s sister. A similar incident arose on 25 August where the appellant became angry at something and grabbed the victim by the front of her neck with one hand and lifted her. After releasing his grip briefly, he tightened it again. The victim suffered a petechial haemorrhaging inside her mouth and on her left ear as well as bruising and abrasions around her neck.

[3] At the time of the offence the appellant had been on parole for a prior sentence of 8 years and 6 months for a previous offence, imposed in 2015. He was released on parole in November 2019. However a result of the present offending the appellant was recalled to serve that sentence. On 31 August 2020 an interim recall order was made under s 62(1) of the Parole Act 2002. That order was made final on 16 November 2020 under s 13(7) of that Act.

[4] The appellant was sentenced for the present charge on 23 July 2021. That means he had spent 10 months and 23 days in custody following his recall by that time.

[5]The appellant now appeals against his sentence on the grounds that:

(a)the sentence was calculated incorrectly. The time in custody after the recall orders was not correctly assessed;

(b)the Judge did not consider whether to grant leave to apply for home detention.

District Court decision

[6] After taking into account general guidance for this type of offending, the appellant’s personal history, his drug and alcohol report and rehabilitation efforts, the Judge adopted an overall start point of three years after uplifting a starting point of two years and six months by six…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bitossi v The Queen

Details

AGLC: Bitossi v The Queen [2021] NZHC 3173
Case: [2021] NZHC 3173
Decision Date: 24 November 2021

CaseChat Overview and Summary

Angelo Dominic Bitossi appeals against a sentence of 20 months' imprisonment for strangulation imposed by Judge D C Ruth in the Wellington District Court. The appellant argues that the sentence was incorrectly calculated and that the court failed to consider whether to grant leave to apply for home detention. The appeal was heard by Cooke J on 24 November 2021. The appellant's arguments are twofold: firstly, that the sentence was calculated incorrectly, specifically regarding the discount for time spent in custody following recall orders, and secondly, that the court did not consider granting leave to apply for home detention.

Cooke J found that the appellant's appeal on the first ground was based on an error in the calculation of the discount for the time spent in custody after recall. The appellant's time on recall began on 31 August 2020, not when the final recall order was made, making the total time on recall 10 months and 23 days. The court credits approximately two-thirds of the period on recall, and the correct discount should have been approximately seven months, not five. However, the Crown argued that this error was offset by another error by the Judge in applying the uplift for previous convictions at the first stage of the sentencing process, which resulted in the appellant's sentence being two months shorter than it should have been if the correct approach had been followed. The Court concluded that both errors effectively cancelled each other out and that the 20-month period of imprisonment seemed appropriate.

On the second ground of appeal, the appellant argues that the court did not consider granting leave to apply for home detention. Cooke J found that the Sentencing Act specifically outlines the circumstances under which leave can be granted, and these were not met in this case. The appellant had been recalled to serve a previous sentence of imprisonment and could not serve a sentence of home detention. Additionally, it is not possible to impose sentences of imprisonment and home detention in combination. Therefore, a sentence of home detention or leave to apply for it were not available as sentencing options.

Both grounds of appeal were dismissed.

Orders