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…

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.

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Details

Case: [2014] NZHC 1136
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the case of Dalliessi v Police, the appellant, Tony Arnold Dalliessi, appealed against a sentence of eight months’ home detention imposed on him in relation to three charges: dangerous driving, failing to stop after an accident, and assault. The primary ground of the appeal was that the court should have considered community detention, coupled with community work, and that a term of home detention less than eight months would have been appropriate. The appellant's counsel argued that the sentence was excessively harsh and did not adequately consider personal mitigating factors.

The legal issues before the court were whether the sentence of eight months’ home detention was appropriate and whether the court should have considered alternative forms of detention and community work. The court was also required to determine if the discount for the appellant's guilty pleas was adequate and whether the personal mitigating factors had been given due weight in the sentencing process.

The court found that the appellant's conduct over the five months leading up to the sentencing was reckless and dangerous, warranting a significant sentence. However, the court agreed that the term of eight months’ home detention was overly lengthy and did not adequately account for the appellant's personal mitigating factors. The court was persuaded that the purposes of deterrence, denunciation, and accountability were met, but that a lesser term of home detention was appropriate. The court reduced the term of home detention to six months, considering the rehabilitative steps the appellant had taken and the need to encourage his efforts to improve his employment prospects.

The final order was that the term of home detention was reduced to six months, with all other aspects of the sentence remaining unchanged.

Orders