BITOSSI v THE CROWN [2021] NZHC 3173

BITOSSI v THE CROWN [2021] NZHC 3173 [24 November 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-74[2021] NZHC 3173UNDER the Criminal Procedure Act 2011IN THE MATTER of an appeal against SentenceBETWEEN ANGELO DOMINIC BITOSSIAppellantAND THE CROWNRespondentHearing: 24 November 2021Appearances: S J Fraser for the AppellantD T E Moore for the RespondentJudgment: 24 November 2021JUDGMENT OF COOKE J[1] The appellant appeals against a sentence of 20 months' imprisonment on onerepresentative charge of strangulation under s 189A(b) of the Crimes Act 1961imposed by Judge D C Ruth in Wellington District Court.1Facts[2] The appellant and his then partner, who is the victim of the offending, had beenin a relationship for approximately 14 years with a number of previous family harmincidents between them. Between 13 and 26 August 2020 the appellant was at thevictim's home whilst his sister was also present. He had moved in with her the yearprior after a previous prison term. There was an argument that arose between the two1 R v Angelo Dominic Bitossi [2021] NZDC 14978.and the appellant grabbed the victim by the throat with both hands. The victimstruggled to breathe as a result. This assault was witnessed by the appellant's sister.A similar incident arose on 25 August where the appellant became angry at somethingand grabbed the victim by the front of her neck with one hand and lifted her. Afterreleasing his grip briefly, he tightened it again. The victim suffered a petechialhaemorrhaging inside her mouth and on her left ear as well as bruising and abrasionsaround her neck.[3] At the time of the offence the appellant had been on parole for a prior sentenceof 8 years and 6 months for a previous offence, imposed in 2015. He was released onparole in November 2019. However a result of the present offending the appellantwas recalled to serve that sentence. On 31 August 2020 an interim recall order wasmade under s 62(1) of the Parole Act 2002. That order was made final on 16 November2020 under s 13(7) of that Act.[4] The appellant was sentenced for the present charge on 23 July 2021. Thatmeans he had spent 10 months and 23 days in custody following his recall by thattime.[5] The appellant now appeals against his sentence on the grounds that:(a) the sentence was calculated incorrectly. The time in custody after therecall orders was not correctly assessed;(b) the Judge did not consider whether to grant leave to apply for homedetention.District Court decision[6] After taking into account general guidance for this type of offending, theappellant's personal history, his drug and alcohol report and rehabilitation efforts, theJudge adopted an overall start point of three years after uplifting a starting point oftwo years and six months by six months. A discount of 25 per cent was then given forthe appellant's guilty plea, and five percent for his rehabilitation efforts. The sentencewas then reduced by a further five months to reflect the time spent in custody after therecall order, resulting in an end sentence of 20 months' imprisonment.Arguments on appeal[7] The appellant argues that the discount of five months for the time spent onrecall was incorrect, and that he was entitled to a discount of seven months and oneweek. The Crown accepts that there was an error arising from the advice given to theCourt in the Crown's submissions. However, it argues that this error was offset by anerror by the Judge in applying the uplift for previous convictions at the first stage ofthe sentencing process, and then applying the discount for personal mitigatingcircumstances on the uplifted stating point. This resulted in the appellant's sentencebeing two months shorter than it should be if the correct approach under Moses v Rhad been followed.2[8] The appellant also argues that the Judge did not consider giving leave to applyfor home detention of the Sentencing Act 2002 on the assumption that this was eithernot possible, or that parole was a pathway for the same outcome to be considered ifappropriate. The basis for this argument is that if the appellant was granted leave toapply for home detention he could then appear before a District Court Judge and thatJudge would then be able to consider any application for him to serve a sentence ofhome detention. This would in turn provide grounds for early consideration of parole.The Crown argues that home detention was not an option under ss 19 and 80I of theSentencing Act 2002.Approach on appeal[9] The appellant has a right to appeal against his sentence under s 244 of theCriminal Procedure Act 2011.3 Under s 250(2) the appeal must be allowed if the firstappeal court is satisfied that there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.42 Moses v R [2020] NZCA 296.3 Criminal Procedure Act 2011, s 244.4 Section 250(2).[10] The appellant was required to file a notice of appeal within 20 working daysafter the date of the sentence he is appealing, which in his case was 23 July 2021.5 Heinstead filed the notice of appeal on 14 October 2021, after an eight-week delay. Thisdelay was caused because the appellant initially understood he would be eligible forparole in October, but this is not the case. The Crown accepts that the delay isrelatively small and causes no prejudice to the Crown and I agree that leave should begranted.6First ground: the period allowed for recall detention[11] It is accepted by all parties that the Judge erred when determining the discountfor the time the appellant spent in custody following recall. The appellant's time onrecall began from 31 August 2020 when an interim recall order was issued, not whenthe final order was made. The total time on recall by the time of his sentencing wasaccordingly 10 months and 23 days not eight months.[12] Unlike pre-sentence detention, time spent in custody following a final recallorder is not automatically deducted as time served on a sentence of imprisonment thenimposed.7 That is because a recall involves serving time on the previous sentence andnot the new sentence. The Courts have considered the way in which this can beaddressed when determining the new sentence. The Court gives credit ofapproximately two-thirds of the period on recall.8 The Judge here discounted thesentence by five months.9 However, the Judge relied on the Crown's submissions,which were based on an incorrect start date of the appellant's period on recall by notusing the date of the interim recall order. The correct discount was approximatelyseven months.[13] Under s 250 of the Criminal Procedure Act the Court is required to allow theappeal when satisfied that there was an error in the sentence imposed on convictionand that a different sentence should be imposed. The Crown says that the Judge'serror is offset by another error in the appellant's favour. It says the Judge erred in not5 Section 248(1)(a).6 R v Knight [1998] 1 NZLR 583.7 Parole Act 2002, s 91(5) and (6).8 Thomas v R [2020] NZCA 257 at [21].9 R v Angelo Dominic Bitossi, above n 1, at [37] and [40].correctly following the two-step methodology for sentencing as established by Mosesv R.10 The uplift given for previous convictions should have occurred at the secondstage of the process, rather than as an uplift on the starting point. This has beenconfirmed in the Court of Appeal's decision in Stuart v R.11 Applying the uplift at thefirst stage of the process results in a greater discount than is appropriate. This had theeffect of reducing the appellant's end sentence by two months.[14] I agree with the Crown that the Judge must be taken to have erred in adjustingthe starting point for personal aggravating circumstances and applying the discountsto the uplifted figure. I am aware that there are other authorities that have adopted thesame approach as the Judge did here. But the fact remains that this approach is notconsistent with Moses and Stuart and it has led to a sentence that is approximately twomonths shorter than it would have been if the correct approach had been followed.[15] The appellant says the sentence should be 18 months and not 20 months. Butthe effect is that the two errors effectively cancel one another out as both change thesentence by two months. It is also important that the matter is not assessed as a purelymathematical one. The 20 month period of imprisonment seems about right and iscertainly within range. I have given consideration to whether the sentence ought to beshortened because the Judge was unaware of the additional period in custodyfollowing the interim recall order, particularly bearing in mind that the Judge wasconsidering the overall sentence in the round. But I am not satisfied that the sentencewas higher than it should have been on this basis. Had the Judge been conscious ofboth of the matters that have been raised on appeal I think it more likely he wouldhave reached approximately the same ultimate sentence. I do not see the sentence asbeing excessive. Any alterations that I make to it could be described as tinkering.[16] This ground of appeal is accordingly dismissed.10 Moses v R, above n 2, at [46].11 Stuart v R [2021] NZCA 539.Second ground: home detention[17] The appellant also challenges the District Court for not giving leave to applyfor home detention. The appellant did not apply for home detention, or ask for leavebe granted.[18] The Sentencing Act specifically provides the circumstances where leave canbe granted:80I Leave to apply for cancellation of sentence of imprisonment andsubstitution of sentence of home detention in certain cases(1) This section applies if –(a) a court has sentenced an offender to a short-term sentence ofimprisonment; and(b) at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitableresidence had been available.(2) At the time of sentencing, the court must make an order granting theoffender leave to apply to the court of first instance for cancellationof the sentence of imprisonment and substitution of a sentence ofhome detention if the offender finds a suitable residence at a later date.[19] Mr Fraser contends that s 80I should be approached by travelling through thepathway of s 15A, which prescribes when the court may impose a sentence of homedetention. He further argues that the Sentencing Act must be interpreted in a way thatis consistent with s 22 and 26 of the New Zealand Bill of Rights Act 1990 (Bill ofRights) and in a way that is consistent with the principle of legality.[20] I do not accept these arguments. I do not agree that the Bill of Rights, or theprinciple of legality are engaged. Section 80I(1) is clear in providing that the sectionapplies only when a sentence of home detention would have been imposed, but is notbecause a suitable residence is not available. That is not the reason why a sentence ofhome detention was not imposed or considered here. Indeed there was a suitableresidence available here. The reason why home detention was not considered was thatthe appellant had been recalled to serve a previous sentence of imprisonment and couldnot serve a sentence of home detention. Section 80I did not apply.[21] When recall orders are made under the Parole Act the defendant resumes aprevious sentence of imprisonment. But once a new sentence is imposed the defendantmust serve half the new sentence before parole will be considered again.12 Mr Fraseraccepted that a Court could not defer the start date of a sentence of home detentionunder s 80W of the Sentencing Act as jurisdiction to make such an order does not existwhen the offender is detained under another sentence or order under s 80W(3)(d). Ialso note that under s 19 it is not possible to impose sentences of imprisonment andhome detention in combination.[22] For these reasons a sentence of home detention, or leave to apply for it, werenot available as sentencing options. This ground of appeal is also dismissed.Cooke JSolicitors:Crown Law, Wellington for the Respondent12 Parole Act 2002, s 20(1) subject to s 25.