Vitali v R - [2013] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-000019 [2013] NZHC 1994

ADRIANO RAFFAELE VITALI Appellant

v

THE QUEEN Respondent

Hearing: 7 August 2013

Counsel: J Holmes and L Abrams for Appellant
H J Sheridan and J Heerdegen for Respondent

Judgment: 7 August 2013

ORAL JUDGMENT OF KATZ J (Appeal against sentence)

Solicitors:
H J Sheridan, Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Counsel:
J M Holmes, Cameron Chambers, Tauranga

ADRIANO VITALI v THE QUEEN [2013] NZHC 1994 [7 August 2013]

Introduction

[1] The appellant, Mr Vitali, was convicted in the District Court at Tauranga of driving with excess breath alcohol (third and subsequent),1 dangerous driving,2 presenting a firearm,3 and being intoxicated in charge of a firearm.4

[2] Mr Vitali was sentenced by Judge I B Thomas in the District Court at Tauranga to imprisonment for 15 months on the charge of driving with excess breath alcohol (“EBA”) (which carries a maximum penalty of two years imprisonment). He was also sentenced to three months for the dangerous driving to be served concurrently. On the firearms charges he was sentenced to three months cumulative for the presentation of a firearm and three months concurrent for the possession of a firearm while intoxicated.

[3] Mr Vitali appealed to this Court on the basis that his sentence was manifestly excessive. The key issues raised by the appeal are:

a) Was the starting point too high?

b) Should a discount have been given for remorse?

c) Should the driving and firearms sentences have been concurrent rather than cumulative?

d) Should home detention have been imposed instead of imprisonment? [4] I will address each issue in turn.

Approach on appeal

[5] An appeal against a sentence is a general appeal, by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that if the High
Court determines that a sentence imposed was “clearly excessive or inadequate or

1      Sections 56(1) and (4) Land Transport Act 1998.
2      Section 35(1)(b) Land Transport Act 1998.
3      Section 52 Arms Act 1983.
4      Section 47 Arms Act 1983.

inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence” then the Court may quash or vary the sentence.

[6] Yorston v Police5 sets out the approach to be taken to appeals under s 121(3):6

a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[7] If the sentence is within the appropriate range, the appeal Court will not intervene.

Issue 1: Was the starting point too high?

Factual background

[8] Mr…

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 Vitali v R

Details

AGLC: Vitali v R [2013] NZHC 1994
Case: [2013] NZHC 1994
Decision Date: 7 August 2013

CaseChat Overview and Summary

Adriano Raffaele Vitali appealed against his sentence on the basis that it was manifestly excessive. He was sentenced to 15 months' imprisonment for driving with excess breath alcohol, three months for dangerous driving (concurrent), and three months for presenting a firearm and three months for possessing a firearm while intoxicated (cumulative). Vitali argued that the starting point was too high, that a discount should have been given for remorse, that the driving and firearms sentences should have been concurrent rather than cumulative, and that home detention should have been imposed instead of imprisonment. The court considered the starting point for sentencing was within the permissible range, as Mr Vitali was driving dangerously, had multiple prior convictions, and was not deterred by previous sentences. The court also held that there was no error in the judge's decision not to apply a discount for remorse or personal circumstances, and that the firearms sentences should be cumulative. Finally, the court held that the decision not to impose home detention was justified due to Mr Vitali's previous failure of home detention and his need for deterrence and community protection. The appeal was dismissed.

Final orders:
1. The appeal is dismissed.
2. Each party to bear their own costs.

Orders