Police v Bitossi DC Wellington CRI-2010-085-1121 [2011] NZDC 693 (13 May 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT WELLINGTON

_{CRI-2011-085-001121}

NEW ZEALAND POLICE

Informant

v

ANGELO DOMINIC BITOSSI

Defendant

Hearing: 13 May 2011

Appearances: S A McClean for the Informant

D A Ewen for the Defendant

Judgment: 13 May 2011

_{NOTES OF JUDGE S E THOMAS ON SENTENCING}

[1] Mr Bitossi, you appear for sentence having pleaded guilty to three charges, male assaults female, where the maximum penalty is two years’ imprisonment, threatening to kill, where the maximum penalty is seven years’ imprisonment, and intentional damage.

[2] The facts of the offending are that the victim in this matter had been in a relationship with you, and you had been living together. The relationship ended and you moved in to the next door flat with your new partner.

[3] At about 6.40 am in the morning, the victim arrived at your address wanting the return of some money she claimed you owed her, and there was a verbal

_{altercation with you, and it does seem to be accepted that that also involved some}

POLICE V BITOSSI DC WN CRI-2011-085-001121 13 May 2011

physical behaviour by the victim. However, you became very enraged and chased the victim away from the address up the street. You grabbed her by the hair and struck her around the head and body. She broke free and ran back to her house. You entered the house, grabbed her by the hair and dragged her upstairs into the kitchen. You struck her with kicks and punches numerous times about the head and body. She found herself on the floor and unable to get up, because of your continued assault on her. As part of all of this, you knocked, onto the ground, a jug of boiling water, and that caused burns to the victim. You then picked up a large carving knife from the kitchen counter, you pointed it at the victim and said that you would kill her, unless she gave you your property. She did not respond and you stabbed the knife into the kitchen wall with enough force to drive it through the other side, and snapped the blade. You left the victim on the floor, you went downstairs to her bedroom. The door was closed, you attacked it with your head and broke it in half.

[4] As a result of all of this, the victim received a sprained right ankle, grazes on her left shin and knee, bruising to her thigh, back, elbow and bicep, and bruising to her head and jaw, and she also suffered first degree burns as a result of the boiling water.

[5] She, however, is clearly quite a robust person. Her victim impact statement says that it took her a couple of days off work to recover, but she has moved on. She does not suffer any long-term effects. She wants the $45 to pay for the damage to the door. She says that she has moved on, you have some problems but she does wish you all the best.

[6] I have got some further information from her in a letter which is attached to the pre-sentence report, and she acknowledges the issues that you were facing around the time of this offending. She knows that this time of year is a difficult time for you, and she also acknowledges that part of this incident involved her having your mother’s chain and necklace, and that that was a significant memento of yours, and was something that she knew was going to cause you to become very aroused if you did not think you were going to get it back.

[7] Now, I have seen also the pre-sentence report. You say that you feel sick and ashamed about this offending and that you have never been violent to a woman before, and in support of that it is noted that you do not have any convictions for male assaults female on your criminal history. You say you know you should have known better, and you do say that you had been on some medication which you believe had an impact on the way you were behaving.

[8] You are assessed at being of high risk of re-offending in light of your conviction history and your poor compliances previously with community-based sentences. There is a real issue about your use of alcohol and drugs, and the fact that you do need more treatment in connection with that. So, the recommendation in the circumstances is imprisonment with release conditions.

[9] You are in custody at the moment, and I have seen a letter this morning from the senior clinical psychologist at the local DHB and you have got some issues while you are in remand, and the psychologist is working with you to try and develop a treatment plan to address your difficulties and, in particular, drug and alcohol dependency and post-traumatic stress disorder. You have acknowledged your problems with anger management and you are committed to attending some form of counselling to assist with that, and for the period that you are in prison, the psychologist will continue to work with you.

[10] So I take all that into account. The Crown originally advocated a starting point of between 12 and 15 months’ imprisonment, but acknowledges in light of what the victim has said about her own behaviour, that the starting point should be towards the lower end of that. I have also taken into account the submissions from Mr Ewen, on your behalf, today. I have also considered the cases to which I have been referred, in particular Burchell v R (CA162/08, 22 July 2010) and the High Court decision of Byrne v Police (unreported, CRI-2008-412-000004, HC Dunedin, 5 March 2008, Hansen J).

[11] Mr Bitossi, clearly I need to make sure that you are held accountable for the offending and you accept responsibility. For that, I need to denounce the conduct to deter others and to assist in your rehabilitation. I have taken into account the gravity

of the offending, the need for consistency where possible, the information of what the victim has said about all of this, and the need to impose the least restrictive outcome.

[12] I will assess a starting point on a totality basis, to reflect the nature and seriousness of your offending, and your culpability. The aggravating factors relating to you are the sustained nature of the offending. You chased the victim up the road. There was then blows to her head, dragging her by the hair. You followed her back into her house, and I note the harm suffered by her in terms of her injuries, to which I have already referred. Then, of course, there was the wielding of the knife associated with the threat to kill.

[13] It is accepted there was no pre-meditation. It is also accepted that the incident started with the victim turning up at your door in the very early hours of the morning, and it is accepted that there was at least some form of physical assault that she engaged in, together with the matter which stirred you up, it is accepted, relating to her possession of your mother’s necklace.

[14] So taking into account your overall culpability in that light, I take a starting point of 12 months’ imprisonment. I do impose a slight uplift to 14 months, to reflect the fact that the offending occurred when you were subject to a sentence, that is, to come up for sentence if called on, and you were on release conditions and your previous convictions, which do include violent offending. You have a conviction from 2001 of aggravated robbery, a 1999 conviction for assault, two convictions for possession of an offensive weapon, and three for possession of a knife in public.

[15] I reduce that to around just under 12 months to take into account your remorse and what I have heard today from the psychologist in support of your personal circumstances, and I then give you full credit for your guilty plea, which takes me to an end sentence of eight months’ imprisonment.

[16] Now, no address is able to be offered for a sentence of home detention, but I

will give you leave to apply for substitution of the sentence.

[17] For all those reasons then, Mr Bitossi, on the charges of male assaults female and threatening to kill, you are sentenced to eight months’ imprisonment, with leave to apply for a substituted sentence, standard and special conditions will apply until six months after sentence expiry date. They are those set out in paragraphs 1, 2 and 3 of the pre-sentence report, that is:

(i) You attend and complete alcohol and drug counselling.

(ii) You undertake psychological treatment and counselling to the satisfaction of your probation officer.

(iii) You attend some form of anti-domestic violence programme.

[18] In respect of the charge of intentional damage, you are sentenced to pay the reparation of $45 in one lump sum within one month following your release from custody.

S E Thomas

District Court Judge