Bitossi v The Queen
[2021] NZHC 3173
•24 November 2021
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 months. A discount of 25 per cent was then given for the appellant’s guilty plea, and five percent for his rehabilitation efforts. The sentence
was then reduced by a further five months to reflect the time spent in custody after the recall order, resulting in an end sentence of 20 months’ imprisonment.
Arguments on appeal
[7] The appellant argues that the discount of five months for the time spent on recall was incorrect, and that he was entitled to a discount of seven months and one week. The Crown accepts that there was an error arising from the advice given to the Court in the Crown’s submissions. However, it argues that this error was offset by an error by the Judge in applying the uplift for previous convictions at the first stage of the sentencing process, and then applying the discount for personal mitigating circumstances on the uplifted stating point. This resulted in the appellant’s sentence being two months shorter than it should be if the correct approach under Moses v R had been followed.2
[8] The appellant also argues that the Judge did not consider giving leave to apply for home detention of the Sentencing Act 2002 on the assumption that this was either not possible, or that parole was a pathway for the same outcome to be considered if appropriate. The basis for this argument is that if the appellant was granted leave to apply for home detention he could then appear before a District Court Judge and that Judge would then be able to consider any application for him to serve a sentence of home detention. This would in turn provide grounds for early consideration of parole. The Crown argues that home detention was not an option under ss 19 and 80I of the Sentencing Act 2002.
Approach on appeal
[9] The appellant has a right to appeal against his sentence under s 244 of the Criminal Procedure Act 2011.3 Under s 250(2) the appeal must be allowed if the first appeal court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.4
2 Moses v R [2020] NZCA 296.
3 Criminal Procedure Act 2011, s 244.
4 Section 250(2).
[10] The appellant was required to file a notice of appeal within 20 working days after the date of the sentence he is appealing, which in his case was 23 July 2021.5 He instead filed the notice of appeal on 14 October 2021, after an eight-week delay. This delay was caused because the appellant initially understood he would be eligible for parole in October, but this is not the case. The Crown accepts that the delay is relatively small and causes no prejudice to the Crown and I agree that leave should be granted.6
First ground: the period allowed for recall detention
[11] It is accepted by all parties that the Judge erred when determining the discount for the time the appellant spent in custody following recall. The appellant’s time on recall began from 31 August 2020 when an interim recall order was issued, not when the final order was made. The total time on recall by the time of his sentencing was accordingly 10 months and 23 days not eight months.
[12] Unlike pre-sentence detention, time spent in custody following a final recall order is not automatically deducted as time served on a sentence of imprisonment then imposed.7 That is because a recall involves serving time on the previous sentence and not the new sentence. The Courts have considered the way in which this can be addressed when determining the new sentence. The Court gives credit of approximately two-thirds of the period on recall.8 The Judge here discounted the sentence by five months.9 However, the Judge relied on the Crown’s submissions, which were based on an incorrect start date of the appellant’s period on recall by not using the date of the interim recall order. The correct discount was approximately seven months.
[13] Under s 250 of the Criminal Procedure Act the Court is required to allow the appeal when satisfied that there was an error in the sentence imposed on conviction and that a different sentence should be imposed. The Crown says that the Judge’s error is offset by another error in the appellant’s favour. It says the Judge erred in not
5 Section 248(1)(a).
6 R v Knight [1998] 1 NZLR 583.
7 Parole Act 2002, s 91(5) and (6).
8 Thomas v R [2020] NZCA 257 at [21].
9 R v Angelo Dominic Bitossi, above n 1, at [37] and [40].
correctly following the two-step methodology for sentencing as established by Moses v R.10 The uplift given for previous convictions should have occurred at the second stage of the process, rather than as an uplift on the starting point. This has been confirmed in the Court of Appeal’s decision in Stuart v R.11 Applying the uplift at the first stage of the process results in a greater discount than is appropriate. This had the effect of reducing the appellant’s end sentence by two months.
[14] I agree with the Crown that the Judge must be taken to have erred in adjusting the starting point for personal aggravating circumstances and applying the discounts to the uplifted figure. I am aware that there are other authorities that have adopted the same approach as the Judge did here. But the fact remains that this approach is not consistent with Moses and Stuart and it has led to a sentence that is approximately two months shorter than it would have been if the correct approach had been followed.
[15] The appellant says the sentence should be 18 months and not 20 months. But the effect is that the two errors effectively cancel one another out as both change the sentence by two months. It is also important that the matter is not assessed as a purely mathematical one. The 20 month period of imprisonment seems about right and is certainly within range. I have given consideration to whether the sentence ought to be shortened because the Judge was unaware of the additional period in custody following the interim recall order, particularly bearing in mind that the Judge was considering the overall sentence in the round. But I am not satisfied that the sentence was higher than it should have been on this basis. Had the Judge been conscious of both of the matters that have been raised on appeal I think it more likely he would have reached approximately the same ultimate sentence. I do not see the sentence as being excessive. Any alterations that I make to it could be described as tinkering.
[16]This ground of appeal is accordingly dismissed.
10 Moses v R, above n 2, at [46].
11 Stuart v R [2021] NZCA 539.
Second ground: home detention
[17] The appellant also challenges the District Court for not giving leave to apply for home detention. The appellant did not apply for home detention, or ask for leave be granted.
[18] The Sentencing Act specifically provides the circumstances where leave can be granted:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1)This section applies if –
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[19] Mr Fraser contends that s 80I should be approached by travelling through the pathway of s 15A, which prescribes when the court may impose a sentence of home detention. He further argues that the Sentencing Act must be interpreted in a way that is consistent with s 22 and 26 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) and in a way that is consistent with the principle of legality.
[20] I do not accept these arguments. I do not agree that the Bill of Rights, or the principle of legality are engaged. Section 80I(1) is clear in providing that the section applies only when a sentence of home detention would have been imposed, but is not because a suitable residence is not available. That is not the reason why a sentence of home detention was not imposed or considered here. Indeed there was a suitable residence available here. The reason why home detention was not considered was that the appellant had been recalled to serve a previous sentence of imprisonment and could not serve a sentence of home detention. Section 80I did not apply.
[21] When recall orders are made under the Parole Act the defendant resumes a previous sentence of imprisonment. But once a new sentence is imposed the defendant must serve half the new sentence before parole will be considered again.12 Mr Fraser accepted that a Court could not defer the start date of a sentence of home detention under s 80W of the Sentencing Act as jurisdiction to make such an order does not exist when the offender is detained under another sentence or order under s 80W(3)(d). I also note that under s 19 it is not possible to impose sentences of imprisonment and home detention in combination.
[22] For these reasons a sentence of home detention, or leave to apply for it, were not available as sentencing options. This ground of appeal is also dismissed.
Cooke J
Solicitors:
Crown Law, Wellington for the Respondent
12 Parole Act 2002, s 20(1) subject to s 25.
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