R v Vitali
[2014] NZHC 49
•4 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-044-3169 [2014] NZHC 49
THE QUEEN
v
PETER VITALI
Hearing: 4 February 2014
Counsel: J LS Shaw for the Crown
J D Munro for the Prisoner
Sentencing: 4 February 2014
SENTENCING NOTES OF BROWN J
Solicitors: Crown Solicitors, Auckland
Counsel: J D Munro, Auckland
R v VITALI [2014] NZHC 49 [4 February 2014]
Introduction
[1] Peter Vitali, you appear for sentence today having pleaded guilty to injuring with intent to cause grievous bodily harm.
[2] You are liable to a maximum sentence of ten years imprisonment.
[3] Mr Vitali, it seems you treat the victim as your daughter, although you are not related by blood, and also as your de facto partner. She lived with you at a commercial workshop. You lived in a caravan on the premises whereas she slept in a storage container.
[4] Your behaviour that led to this charge is detestable. In the early hours of
9 May 2012, you argued with the victim over cigarettes. She fled and hid in fear of you – understandably so given your long history of violence and mistreatment of women. You hunted her down and when you found her, you punched her in the head and kicked her in the ribs.
[5] You then put your belt around her neck, and dragged her across the gravel to your caravan. You strangled her with the belt, twisting it so hard you broke and dislocated the victim’s jaw. Her teeth cut the inside of her mouth and caused significant bleeding. You then dragged her over to a chilly bin full of rain water and told her to wash off the blood. When she did so, you held her head under water. She managed to struggle to her side to enable her to breath and you then took the victim into the caravan.
[6] In the morning, she tried to use a porta loo to clean herself up. She then hid under a truck in the yard. A worker saw her there in the morning and convinced you to take her to hospital and she required surgery and metal plates in her jaw.
[7] You initially told police that the victim must have attempted suicide and sustained the injuries by hanging herself with a belt.
Personal circumstances
[8] I turn now to your personal circumstances. You are 59 years of age and of European descent. The victim was your partner but you are no longer in a relationship. You say you no longer have any gang associations, but you appear to be involved in ongoing gang disputes.
[9] You have 42 previous convictions, including three noteworthy convictions for violence: threatening to kill and do grievous bodily harm in 2003, male assaults female in 2003 and male assaults female in 1977. You also have two convictions for disorderly behaviour likely to cause violence.
Pre-sentence report
[10] I have received a pre-sentence report prepared by the Probation Service. You say that on the night of the offending you lost your temper and “exploded”. You would like to engage in restorative justice to put things right and to help the victim heal. However, the report writer suggests that your remorse seems somewhat superficial. The report writer says that your risk of re-offending is assessed as high given the recidivist nature of your offending, despite the fact that your last conviction was four years ago. The main contributing factor to your offending is your propensity for violence. You have stated that you do not drink nor use drugs. The report writer recommends a sentence of imprisonment.
Victim impact statement
[11] I have heard in Court this morning a statement from the victim. In it she describes the surgery she required and the two metal plates that were inserted into her jaw on account of your actions. She suffers from neck and back pain as a result and has nightmares. She has flashbacks of the violence she endured at your hands and often wakes up terrified. She feels deeply betrayed and struggles to understand how you did this to her. She had a breakdown as a result of the violence she suffered at your hands and is having ongoing counselling.
Purposes and principles of sentencing
[12] I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have particularly taken into account are:
(a) holding you accountable for the harm done by your repeated acts of violence;
(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;
(c) denouncing your conduct; and
(d) deterring you and other persons from such offending.
[13] I have had regard to the purpose of assisting you in your rehabilitation and reintegration into the community. I have also taken into account the principles of sentencing set out in s 8 of the Sentencing Act, particularly s 8(a) relating to the gravity of the offending and your culpability.
Submissions
Crown submissions
[14] The Crown submits that a starting point of five and a half to six and a half years imprisonment would be appropriate. The aggravating features that go into setting that starting point are: extreme violence, use of a weapon, attacks to the head and neck, vulnerability of the victim and harm caused to the victim.
[15] The Crown submits there should be a modest uplift for your previous convictions, followed by a 20 per cent discount for your guilty plea. The Crown also suggests a minimum period of imprisonment.
Defence submissions
[16] Mr Munro in submissions for you submitted that an appropriate starting point is around five to five and a half years imprisonment. The aggravating features that go into setting this starting point are the use of the belt as a weapon, attacks to the head and the extent of the injuries suffered.
[17] The defence submit that a small uplift may be appropriate for your previous convictions, and that 20 per cent discount is available for your early guilty plea. The defence submit this is not an appropriate case for a minimum period of imprisonment to be imposed.
Sentencing approach
[18] I come to fix the sentence. The approach I intend to follow in arriving at the appropriate sentence is that established by the Court of Appeal in several well- known cases.1 In brief, it involves considering the circumstances and the seriousness of the offending you have committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases. I then need to consider whether there are any mitigating features relevant to you which might reduce that starting point.
Setting the starting point
Tariff case
[19] I agree with the Crown that the tariff case in this instance is R v Taueki. The Court of Appeal in R v Taueki envisaged that the Taueki bands would be applied to this sort of offending. They stated:2
We focus our attention on offences under ss 188(1) of the Crimes Act (we will refer to these as GBH offences or GBH offending), but we anticipate that these guidelines will be able to be applied, by analogy, to s 191(1) and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it.
1 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).
2 R v Taueki , above n 1, at [9].
[20] The Court of Appeal in R v Brown3 affirmed that it is common practice to apply the Taueki guidelines, by analogy, to offences under s 189 of the Crimes Act. I note that while applying the Taueki guidelines by analogy in this context, I do so with caution. The Court of Appeal in R v Brown considered that:4
Sections 188, 189 and 191 contain a quite complex matrix of different levels of intention and of consequences in the infliction of violence. The gradations involved require a close focus on the facts of each case. That will not be assisted by attempting to adapt the Taueki guidelines to offending which is essentially different in nature from that considered in Taueki.
[21] Similarly, the Court of Appeal in R v D have warned that:5
While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].
[22] The Court of Appeal has identified in Taueki a list of aggravating features contributing to the seriousness of grievous bodily harm offending. The Court then sets out three bands for sentencing based on those factors.
[23] Band one applies for offences at the lower end of the spectrum which do not involve extreme violence or violence which was life threatening. Where no aggravating features are present a start point at the bottom of the band is appropriate. Where one or more factors are present a higher start point obviously is required.
[24] Band two is appropriate for offending where there are two or three aggravating factors. The appropriate point in that band will depend on the seriousness of those factors.
[25] Band three will encompass serious offending which has three or more of the aggravating features, where the combination of aggravating features is particularly
grave.
3 R v Brown [2009] NZCA 288 at [14].
4 At [14].
5 R v D [2008] NZCA 254 at [43].
[26] Band one in the Court of Appeal’s view warrants a starting point of 3-6 years, band two 5-10 years and band three 9-14 years.
[27] The Taueki factors that are present in this offending are extreme violence, as it was violence that was prolonged and gratuitous, use of a weapon and attacking the head.
[28] In describing domestic assault which will fall within band two the Court of appeal said this:6
Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.
[29] While there is no suggestion that your offending was premeditated I consider the use of the weapon, the extreme violence and the very serious injury the victim suffered to her jaw place your offending squarely within band two of Taueki.
[30] In Flavell v R7 the offender was convicted at trial of one count of wounding with intent to cause grievous bodily harm, for cutting the victim in the back with a broken beer bottle which resulted in wounds that needed stapling but caused no lasting injury and injuring with intent to cause grievous bodily harm for hitting the victim on the head with a baseball bat at least once. Applying the Taueki methodology on appeal, the Court of Appeal considered the District Court Judges’ starting point of six years was too high and substituted for it a starting point of five years.
[31] One useful comparable case cited by Mr Munro is R v Abbott.8 In that case, the offender was angry and went to the victim’s address. He picked up a softball- sized rock and when the victim opened the door, he intended to hit her on the head
with it. That did not eventuate as the rock fell to the ground. However, he then
6 R v Taueki, above n 1, at [39](c).
7 Flavell v R [2011] NZCA 361.
8 R v Abbott [2013] NZHC 62.
pushed his way into the address and punched the victim about the head and face a number of times. She fell to the floor, at which point the offender began kicking her about the head and face. He only left after the victim’s prolonged screams for help. The victim received severe bruising to her forehead, a chipped tooth, a swollen and cut lip, a cut to her ear and bruises over her arms and legs.
[32] The offender was sentenced on the lead offence of injuring with intent to cause grievous bodily harm. Kós J considered the four aggravating features present were home invasion, vulnerability of the victim, attacking the head and use of a weapon. He did not consider that that was a case of “extreme violence”, and was of the opinion that a starting point of four and a half years imprisonment was sufficient to reflect the gravity of the offending.
[33] Mr Munro has acknowledged that the offending in this case is more serious. Indeed I consider your offending to be significantly more serious than either of the above cases. The violence you inflicted upon your victim was extreme. It was prolonged as you first punched and kicked her, then dragged her with a belt around her neck across the gravel and then twisted the belt around her head until her jaw broke. When she perceived that the attack was finally over you callously and gratuitously inflicted even more trauma by forcing her head under the water as she tried to clean her face. You attacked her head so severely that you broke her jaw and you used a weapon, namely your belt.
[34] The injuries suffered by your victim were more serious than either of the injuries suffered by the victims in Flavell and Abbott. Nor in those cases was there such gratuitous violence which in your case was calculated to inflict the maximum amount of terror upon your victim. Band two of Taueki would justify a starting point of 5-10 years. When applying the Taueki bands, I must take into account that those bands apply to wounding with intent to cause grievous bodily harm. That offence has a higher maximum penalty than the offence for which you have been convicted. I consider your offending to be at the top of the adjusted bands and I therefore impose a starting point of six years and six months imprisonment.
[35] I must now adjust this starting point to take account of any aggravating and mitigating features which were relevant to you personally.
Aggravating factors
[36] You have a long criminal history dating back to 1971. Most relevantly within that criminal history you have three convictions for violence including two for male assaults female. I consider your previous convictions for violent offending to be an aggravating factor and therefore uplift your sentence by six months, to seven years imprisonment, to reflect this.
Mitigating factors
[37] I turn now to consider whether there are any mitigating factors which would reduce the starting point. I note that you have participated in restorative justice with your victim for which I truly commend you. This is an extensive report as Mr Munro notes. Mr Munro has emphasised the positive nature of the report and has made the submission that the complainant has had some closure out of the exercise. At the same time however I note that your report writer considers that some of the remorse shown by you appears to be superficial. I consider that your attendance at the restorative justice conference justifies a one month discount for remorse.
[38] Due to your guilty plea you are entitled to a R v Hessell discount of up to
25 per cent.9 I consider the discount of 20 per cent as urged by Mr Munro on your behalf is warranted. This is because your plea was not at the first opportunity but it has come before trial and has saved the victim the trauma of testifying.
[39] This results in an end sentence of five years and six months imprisonment.
Minimum period of imprisonment.
[40] The Crown has submitted that it is appropriate to have a minimum period of imprisonment and Mr Munro advocates against that.
after serving only one third of your sentence. It is necessary to hold you accountable for the harm done to your victim, to denounce your conduct and to deter you from further violent offences.10 Accordingly I impose a minimum period of imprisonment of three years and six months. You will not be eligible for parole until you have served three years and six months of your sentence.
Result
[42] Mr Vitali, would you please stand.
[43] On the count of injuring with intent to cause grievous bodily harm, you are sentenced to 5 years and six months imprisonment.
[44] You will not be eligible for parole until you have served three years and six months of your sentence.
[45] I must also give you a warning under s 86B of the Sentencing Act. Mr Vitali, given your conviction for injuring with intent to cause grievous bodily harm you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’.
[46] If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
[47] If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Brown J
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