Dalliessi v Police

[2014] NZHC 1136

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000006 [2014] NZHC 1136

TONY ARNOLD DALLIESSI

v

NEW ZEALAND POLICE

Hearing:	27 May 2014 (via audiovisual link to Christchurch)
Appearances:	B P Kilkelly for the Appellant C E R Power for the Respondent
Judgment:	27 May 2014

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1]      This is an appeal against a sentence of eight months’ home detention imposed on Mr Dalliessi in relation to three charges.   The principal ground advanced in support of the appeal is that community detention, coupled with community work, should  have  been  considered  and  in  the  alternative  that  a  lesser  term  than eight months’ home detention was the appropriate end result.

The facts

[2]      The first offence was one of dangerous driving committed in April 2013.  It occurred at 3.00 am.   The appellant was driving his car.   He pulled alongside a scooter and an occupant of the car threw an egg at the rider.   The appellant then tailgated  the  scooter  until  it  escaped  up  a  side  road.    The  appellant’s  vehicle

followed.   The lights were switched off.  A three point turn was effected and the

DALLIESSI v NEW ZEALAND POLICE [2014] NZHC 1136 [27 May 2014]

appellant then left the side road travelling at speed and with his lights off.  At one point he lost traction and drifted onto the incorrect side of the road.  Plainly, this was dangerous driving and a significant offence of its kind.

[3]      The second charge was the lead offence of failing to stop after an accident to ascertain whether injury had been caused.  It occurred in June 2013 at 1.20 am in the morning.  The appellant was again driving his car.  He hit the complainant, a 57 year old male, with the right side of his car in an action which I understand to have been a side swipe using the front-right side of the vehicle adjacent to the tyre.   In consequence, the victim was thrown onto the bonnet and then slid to the ground. The appellant accelerated away and fled the scene without stopping to ascertain what injuries had resulted.

[4]      In the event the victim, who was a cyclist although not on his bike at the relevant time, sustained nasty lacerations to his knees and to one ankle.   He was admitted to hospital overnight and then had the lacerations dressed for an extended period.   Two  months  into  this  treatment  he  sustained  an  infection  and  was  re- admitted to hospital.   Even at the date of sentencing, fully seven months after the event, he was still suffering pain and some limitation to his normal mobility.

[5]      I note also that prior to the driving itself the complainant had actually been assaulted by occupants of the appellant’s car.  They then returned to the vehicle, got in, and it was then that the deliberate driving to sideswipe the complainant occurred.

[6]      The third offence was in August 2013, being an assault at 2.00 am in the morning.    It  has  some  parallels  with  the  previous  matter.    Occupants  in  the appellant’s car exchanged insults with the complainant who was a pedestrian.  The appellant drove around a corner and parked.   He and an associate got out of the vehicle, returned to the scene of the verbal altercation and invited the pedestrian to fight.  He had the good sense to turn away and endeavour to walk off.  However, the appellant punched him once in the vicinity of his ear.  The appellant’s explanation when interviewed was that the complainant had proffered verbal abuse and then denied it when confronted on the footpath.

[7]      To my mind it is apparent from these three offences committed over a space of five months that the appellant was effectively off the rails during this period.  He was obviously mixing with associates of a like mind and behaving in a reckless manner in relation to the driving of his vehicle.

The sentence

[8]      That said, the pre-sentence report is of some importance, and I will come to it in a moment.  The appellant was sentenced by Judge Crosbie on 28 February 2014. The Judge identified the failure to stop as the lead offence and concluded that it warranted a starting point of 18 months’ imprisonment.   He uplifted that starting point by a further three months in relation to the August assault, but made no further adjustment for the earlier offence of dangerous driving.  From the 21 month notional sentence, an allowance of three months was made for pleas of guilty to arrive at

18 months’ imprisonment.  However, at that point, the Judge concluded that home detention would meet the ends of deterrence, denunciation and accountability and he imposed  eight  months’  home  detention  in  relation  to  the  lead  offence  and three months concurrent in relation to the assault.

[9]      The  appellant  was  also  disqualified  for  two  years  and  ordered  to  make reparation of $327 and to make an emotional harm payment of $1000, a total of

$1327.  This morning Mr Kilkelly has drawn to my attention that the disqualification followed on from a period of some months when the appellant was on bail and subject to a bail term that he not drive.

The submissions

[10]     The  grounds  of  appeal  were  directed  to  the  starting  points  adopted,  the discount applied for the guilty plea and to the presence of personal mitigating factors which counsel submitted had not been given due weight.  Mr Kilkelly characterised the 18 months applied in relation to the failure to stop as a harsh sentence.  He also submitted that the three month uplift to the starting point for the assault was excessive.  He said the assault was “lower end” and that for a first offender it would ordinarily have attracted a fine.  I tend to agree.

[11]     Counsel submitted that at most it should have resulted in an uplift of one month, given that the sentencing was occurring in the context of three offences.  The discount of three months was said to be inadequate because although the pleas were not entered particularly promptly, that was as a result of disclosure issues and hence that a full discount of a quarter should have been appropriate.

[12]     Finally, Mr Kilkelly emphasised the appellant’s age, 21 years, that he was a first offender and that the imposition of the sentence impinged upon the appellant’s employment  and  his  ability to  take  up  a  course  of  training  which  would  have improved his job prospects. Although these features were variously touched upon by the Judge in the course of the sentencing remarks, they do not appear to have been explicitly factored into the sentence calculation.

[13]     Counsel submitted that eight months’ home detention is a lengthy term for that  form  of  punishment  and  that  a  lesser  term  would  have  met  the  relevant sentencing purposes and principles, even if community detention and community work were not favoured.

[14]     The written submission filed by the Crown referred to the lead offence as a deliberate ramming incident.   I must say the summary of facts is somewhat economical in relation to exactly how that piece of driving occurred, but my understanding  in  light  of  the  submissions  and  having  read  the  victim  impact statement is that it was a sideswipe manoeuvre which caused the injuries to the victim.  That was still a serious driving manoeuvre and it was probably more good luck than management that it did not result in the injuries being more serious.

[15]     Also the Crown submits that there were three separate incidents, all involving an element of violence or threatening, and that the starting point of 21 months could be easily justified, as could the end sentence of eight months’ home detention.

The pre-sentence report

[16]     I indicated earlier that the pre-sentence report was a significant factor in this case, at least in my view.  The report writer noted that while awaiting sentence the appellant had sold his car and made an effort to avoid contact with former negative

associates.   He had also spoken of making a fresh start at the beginning of 2014, including  seeking  counselling  for  personal  issues  said  to  be  unrelated  to  his offending.

[17]     The report also included this assessment:

Mr Daliessi presented as genuinely choosing to amend his past poor choices and establish a new beginning and his likelihood of re-offending and risk of harm to others are assessed as low, despite his current charges that includes assault.   Upon canvassing electronic monitoring, Mr Daliessi’s initial reluctance to consent was not assessed as belligerence but a need to take control of his future and prove himself.  He is assessed as able to comply with all sentencing options.  No factors are identified requiring intervention programmes due to good support and developing maturity evident. Community detention, community work and reparation are recommended, with his driver disqualification to meet sanction.

To my mind this is a particularly favourable pre-sentence report for someone who had been involved in such a course of conduct over a period of a few months in

2013.

Evaluation

[18]     I agree with the Judge’s approach and I do not find it necessary to revisit the sentencing exercise which he went through, because to my mind the important thing is  his  acceptance  that  this  was  a  case  which  could  be  met  by  commuting  the indicated prison sentence to one of home detention.

[19]     I see the key issue as whether the term of eight months’ home detention was appropriate.  I am not persuaded that the Judge erred in favouring home detention over community work and indeed Mr Kilkelly felt constrained to concede that the Judge could not be criticised on that account.

[20]     This sentence has had a real impact on the appellant.  Previously, he was in employment as a fast food delivery driver working a significant number of hours each week.  The sentence has meant that his hours are now restricted to five hours between 3.00 and 8.00 pm on three days per week.  In addition, he was seemingly on the brink of commencing an engineering course at the Otago Polytechnic at the commencement of the 2014 academic year.  That, however, for reasons which I do

not altogether understand but which have been mentioned by Mr Kilkelly, had to be shelved as a result of the sentence of home detention.  I regard that as a great pity for someone who had taken the steps outlined in the pre-sentence report and who also enjoyed the favourable assessment that I have already quoted.

[21]     Counsel also submitted that eight months’ home detention was regarded as quite a lengthy term for this particular sentence.  The offender of course serves the full term of home detention, and experience since the sentencing option became available has demonstrated that longer terms of home detention often prove problematic.

Conclusion

[22]     By a rather narrow margin I am persuaded that the mitigating personal factors stressed by counsel did not receive the full response that they deserved in this particular sentencing.   I am satisfied the purposes of deterrence, denunciation and accountability, which had to be at the forefront, are still met if a lesser term of home detention is imposed.

[23]     I therefore allow the appeal to the extent of reducing the term of home detention to six months.   I do so because I am satisfied that it is appropriate and because I consider it is warranted on account of the rehabilitative steps this young man has taken.  I see it as important that he is encouraged in that, and also placed in a situation where he can pursue the endeavour to improve his employment prospects as soon as possible.

Solicitors:

P B Kilkelly, Barrister, Dunedin

Wilkinson Adams, Dunedin