Rissetto v Police

[2013] NZHC 1633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-133 [2013] NZHC 1633

BETWEEN  QUINTEN RISSETTO Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   1 July 2013

Counsel:                  A Comeskey for Appellant

R Thomson for Respondent

Judgment:                1 July 2013

ORALJUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr Rissetto has been convicted 26 times of driving while disqualified since

1999, now 14 years ago.   In this appeal against sentence, he says the 18 month imprisonment sentence was manifestly excessive.  In particular, he says, the Judge placed too much emphasis on deterrence; he took into account an irrelevant consideration, namely the fact that the appellant did not have insurance; he gave insufficient weight to rehabilitation efforts and a sentence of home detention was the least restrictive sentence.

[2]      The facts are straight forward.  On 4 August 2012, the appellant was stopped by a Police officer and admitted driving while disqualified.   Curiously he did not plead guilty immediately.  He pleaded not guilty.  His plea was only finally changed on  11 March 2013,  some  seven  and  a  half  months  after  his  apprehension  and

sometime after the defended fixture for his case was due to be heard.

RISSETTO v POLICE [2013] NZHC 1633 [1 July 2013]

[3]      I note that the appellant can only have been very recently released from prison when apprehended given he had been sentenced to 16 months’ imprisonment in May 2012.

District Court sentencing

[4]      The Judge at sentencing considered the appropriate starting sentence was two years’ imprisonment given the appellant’s past record.  The Judge noted that over the previous three months Mr Rissetto had taken positive rehabilitative steps.  The Judge considered only a very modest reduction for the appellant’s guilty plea could be justified but said he would give a relatively generous deduction for rehabilitation. His six month reduction was a total of 25 per cent leaving the final sentence of

18 months’ imprisonment.

Discussion

[5]     There can be no complaint about the starting sentence of two years’ imprisonment.  Mr Rissetto has constantly offended since 1999.  He averages almost two  driving while disqualified  offences  each  year.    It  is  clear he takes  not  the slightest notice of court orders.   As well his convictions reveal an irresponsible attitude to driving.   He has eight convictions for driving offences such as careless driving and  dangerous  driving.   There are,  therefore,  good  reasons  not  to  have Mr Rissetto on the road consistent with road safety.

[6]      Further, the courts must also ensure that their orders are obeyed.  Finally, in addition to the 26 convictions, Mr Rissetto committed this offence while still subject to his May 2012 sentence.

[7]      I  accept  the  appellant’s  point  that  the  fact  the  appellant  had  no  vehicle insurance is not a matter that was relevant to sentencing.   However, as the Judge made it clear this was not a major reason for his start sentence or any reason at all for refusing home detention.  For the reasons given, therefore, I consider that there were ample grounds for a start sentence of two years’ imprisonment.

[8]      The appellant says the court should have given more recognition to the efforts he made, after his arrest and his not guilty plea and before his change of plea to guilty, to rehabilitate himself.

[9]      The Judge did not specify what the reduction was for the guilty plea and the reduction for rehabilitation efforts.  There could not have been much of a reduction for the guilty plea given it came seven months after charge and given there was no evident defence.  After all, if Mr Rissetto had pleaded guilty when appropriate, he would not have had the time for these rehabilitative programmes.

[10]     The rehabilitative programmes attended involved a defensive driving course, a family parenting course and a four week addictions programme.  It is hard to know what affect these programmes will have.   The probation service was prepared to accept that in completing these courses, Mr Rissetto’s high likelihood of offending was reduced although there was no suggestion that he would be at a low risk as a result.

[11]     After offending almost constantly for the last 18 years, it is difficult to say whether a few months of rehabilitation courses will change Mr Rissetto’s attitude.  It seems, however unlikely, but it is possible.  But Mr Rissetto will have to understand that  after  many  years  of  disobedience  of  court  orders,  he  can  hardly  expect immediate acceptance of what is really a claim to have turned over a new leaf.

[12]     As the Judge identified, a 25 per cent reduction overall was generous.  A five to 10 per cent reduction for a very late guilty plea would be all that could be justified and so Mr Rissetto has had a 15 to 20 per cent reduction for his rehabilitation efforts.

[13]     Nor in my view was home detention appropriate.  The offending was far too serious for home detention.  The appellant has already breached home detention.  He had a history of breach of court orders.  Deterrence was required and a stern message given to Mr Rissetto that continued offending like this would simply not be tolerated.

[14]     I am satisfied the Judge in the District Court made no error of substance in concluding that this was not an appropriate case for home detention.

[15]     For those reasons, therefore, the appeal will be dismissed.

Ronald Young J

Solicitors:

Meredith Connell, Barristers & Solicitors, Auckland

A Comeskey, Barrister, Auckland