R v Bitossi - [2015] NZHC 77

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-085-004184 [2015] NZHC 77

THE QUEEN

v

ANGELO DOMINIC BITOSSI

Hearing: 5 February 2015

Counsel:

S C Carter and H K Goodhew for Crown
D A Ewen for Defendant

Sentence:

5 February 2015

SENTENCE OF SIMON FRANCE J

Mr Bitossi,

[1] You appear for sentencing on one charge of arson. You were convicted following a Judge alone trial before me. The facts are fully covered in that publicly available judgment and so at this point I note only the main features.

[2] Acting out of a sense of grievance with an associate, you set fire to his individual storage unit which was located in a block housing 224 personal storage units. You were able to do so because you had been there often, and knew the relevant codes. The offending was planned but not particularly sophisticated. You did, however, make considerable effort to conceal your identity, with a reasonable
measure of success in so doing.

R v BITOSSI [2015] NZHC 77 [5 February 2015]

[3] The way you set fire to the particular unit was reckless and showed a total lack of care and concern for the owners of other units, and anyone who might be in the building. The consequent level of damage and heartache caused has been huge. I do not consider you intended to do more than destroy the particular unit, but the method you chose (petrol spread about within the unit, open door, and a trail of petrol down the corridor to ignite it) made a greater scale of fire almost inevitable. That is what happened. The top floor was totally destroyed, and the bottom floor significantly damaged by water. The private victims number over 300, and your actions have caused a significant loss to the storage business as well as tremendous stress.

[4] You deny your offending but it is important to record in your presence that I have read more than 50 victim impact statements from people who have suffered devastating losses of personal memorabilia and irreplaceable possessions and memories. For some the reasons the goods were in storage were connected to personal tragedies that have been reignited in their minds and feelings. For others plans for the future have been put on hold or irrevocably altered. For all, there has been weeks of stress and financial loss, some to a very significant extent. We heard a victim impact statement read today – it is a snapshot of all those I have read.

[5] This is the unique aspect of your offending. There have been other arsons that have caused this level of loss ($9–10 million) or have damaged the heart of a community (historic buildings) but the scale of personal loss and distress to over
300 people is unparalleled. It requires a sentence towards the higher end of the range and I consider eight and a half years is appropriate.1

[6] That starting point reflects the seriousness of this offending, and the inevitable…

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 R v Bitossi

Details

AGLC: R v Bitossi [2015] NZHC 77
Case: [2015] NZHC 77
Decision Date: 5 February 2015

CaseChat Overview and Summary

In the case of R v Bitossi, the defendant, Angelo Dominic Bitossi, was convicted of arson following a trial before the High Court of New Zealand. The defendant was found to have set fire to a storage unit as an act of grievance towards an associate. The court noted that the arson was premeditated, though not particularly sophisticated, and resulted in significant damage and distress to over 300 individuals. The court was tasked with determining an appropriate sentence, considering both the gravity of the crime and the personal circumstances of the defendant.

The primary legal issue before the court was to establish an appropriate sentence for the defendant's act of arson, which caused extensive damage and distress. The court had to balance the seriousness of the crime, including the level of premeditation, the extent of damage, and the impact on the victims, against the defendant's personal circumstances and criminal history. The court also needed to decide on the minimum non-parole period, ensuring that the sentence adequately served the purposes of denunciation and deterrence.

The court found the defendant's actions to be exceptionally harmful, with the scale of personal loss and distress to over 300 individuals being unparalleled. The court noted the significant damage caused to the storage unit and the broader impact on the community, including financial losses and stress. Considering the defendant's significant offending record, the court determined that a sentence towards the higher end of the range was appropriate. After weighing various factors, including the defendant's lack of intent to cause wider damage and the absence of specific aggravating circumstances, the court sentenced the defendant to eight years and six months in prison, with a minimum non-parole period of half the sentence.

The court also addressed the issue of reparation, concluding that it was unrealistic given the defendant's lack of capacity to pay. The court declined to make any reparation orders, to avoid creating false hope and ongoing frustration for the victims. The final orders of the court were that the defendant would serve eight years and six months in prison, with eligibility for parole after serving half of the sentence.

Orders