Vitali v R [2013] NZHC 1994 (7 August 2013)

Last Updated: 27 August 2013

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?

100. 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 Vitali was convicted following a defended hearing in the District Court. The relevant facts appear to be that on 11 January 2013 Mr Vitali was at his home, drinking with two associates. They shot tin cans in the backyard using an air pistol.

[9] Later, Mr Vitali was observed driving erratically in a westwards direction on State Highway 2, at speed. Mr Vitali was consuming alcohol. He was weaving in and out of traffic causing some vehicles to take evasive action. Witnesses gave evidence that Mr Vitali’s driving was so bad that it was fortunate he did not cause an accident. Mr Vitali tailgated another driver and passed that vehicle when he should

_{not have.}

5 _{Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010.}

6 At [13]-[15].

[10] Near the Wairoa bridge Mr Vitali pulled off to the left hand side of the road, where he hung out of the driver’s window and pointed an air gun at the face of a young man. The Judge found that this was, in effect, an incident of road rage. The young man and his companion gave evidence that they were scared. They thought they were going to be shot and killed, or were going to be involved in a serious accident.

[11] Mr Vitali continued to drive towards Katikati in the same erratic manner. He then changed from being the driver of the vehicle and got into the rear passenger seat, which is where he was when the police located the vehicle. The air pistol was also on the rear seat. Two CO2 canisters and a full container of BB pellets were also found in the vehicle.

[12] Mr Vitali admitted to the police he had driven the vehicle prior to getting into the back seat. He also admitted knowing the air pistol was in the vehicle, but said that it was useless as the magazine was left at home. Mr Vitali was breath tested, returning a reading of 563 micrograms of alcohol per litre of blood, 163 micrograms above the relevant legal limit.

The District Court Judge’s sentencing approach

[13] The lead offence for sentencing purposes was the EBA charge. The Judge cited Clotworthy v Police7 as supporting a starting point of up to two years for a man in Mr Vitali’s position. The Judge applied a starting point of 15 months’ imprisonment on the EBA charge, which was also the final sentence, as there were no mitigating factors and no guilty plea.

Previous EBA cases

[14] The sentencing Judge, the appellant, and the respondent all relied heavily on Clotworthy and I therefore start my analysis with that case. Mr Clotworthy had been convicted of his seventh EBA conviction. His breath alcohol level was

764 micrograms of alcohol per litre of breath. It had been approximately eight years

_{since Mr Clotworthy’s last EBA conviction. The Judge also noted his guilty pleas,}

7 Clotworthy v Police (2003) 20 CRNZ 439.

the relatively low breath alcohol level, that there was no suggestion of bad driving and Mr Clotworthy’s personal circumstances. On appeal, Wild J found that a sentence of 12 months’ imprisonment was not manifestly excessive. He acknowledged that there were other cases where higher or lower sentences were imposed, but that “sentencing is not an exact science”. Wild J concluded that the sentence imposed was within the permissible range. He listed ten factors as being relevant to a sentencing for driving with excess alcohol. I apply those to the particular facts of this case at [27] below.

[15] A range of previous EBA cases are traversed in Clotworthy. Counsel for Mr Vitali submitted that the sentence in the present case was very much at the upper end of the cases referred to in Clotworthy. Mr Vitali’s culpability was said to be significantly less than the cases referred to that had involved higher sentences.

[16] The respondent submitted that such a comparison is of little value. The sentences referred to in Clotworthy were end sentences, incorporating guilty plea discounts, where applicable. It follows that a number of the cases referred to in Clotworthy would have had starting points similar to that in this case.

[17] The respondent submitted that the cases of Giddens,8 Barry v Police9 and Jones v Police10 all support the starting point adopted by Judge Thomas. While the blood/breath alcohol levels were higher in those cases, there was no dangerous driving in any of them.

[18] A number of the cases referred to by counsel for Mr Vitali are of limited assistance in assessing a suitable starting point in this case, due to the different charges, significantly different factual circumstances and different criminal histories of the offender. I put Manikpersadh v R,11 McIntyre v Police,12 Nahi v Police,13 and

_{McAnelly v Police}14 _{into this category.}

8 Gidden v Police HC Hamilton AP15/03, 1 April 2003.

9 Barry v Police HC Auckland A101/00, 21 August 2000.

10 Jones v Police HC Wellington AP48/00, 11 April 2000.

11 Manikpersadh v R [2011] NZCA 452.

12 McIntyre v Police [2013] NZHC 268.

13 Nahi v Police [2012] NZHC 2576.

14 McAnelly v Police [2013] NZHC 242.

[19] Matkovich v Police15 is a closer comparison (sixth EBA, driving faults, six months’ imprisonment). A starting point of 9 months’ imprisonment was adopted in that case. However, Mr Matkovich was less culpable than Mr Vitali, as he had never been sentenced to a period of imprisonment for EBA before. He also did not appear to have previous driving related convictions.

[20] Sands v Police16 is perhaps a closer comparison. In that case there were two charges of EBA and one of driving while suspended. The second EBA occurred while Mr Sands was on bail for the first. The readings were, respectively, 1064 and

1057 micrograms of alcohol per litre of breath. Mr Sands had eight previous EBA convictions and three of careless or dangerous driving. He also had five previous driving while disqualified convictions and two of refusing to provide a blood specimen. The starting point adopted in relation to the second EBA charge was

20 months’ imprisonment. The end sentence was one year 11 months’ imprisonment. Mr Sands was more culpable than Mr Vitali, in relation solely to the driving offences (putting to one side Mr Vitali’s firearm offending).

[21] In R v McQuillan17 cumulative sentences of 12 months’ imprisonment for two serious EBA offences within 12 months (following numerous prior convictions) were found by the Court of Appeal not to be excessive, although the sentence was set aside on procedural grounds. The Court of Appeal observed that:18

... Judges of the High Court have consistently upheld sentences of imprisonment in the order of the twelve month terms which were imposed for the separate instances of offending in this case. Imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending.

[22] In Koopu v NZ Police19 Woodhouse J upheld the decision of the District Court as being within range where a 16 month starting point was taken for the appellant’s eighth drink driving offence. The appellant in that case was also

_{sentenced for his seventh disqualified driving offence, which was to be served}

15 Matkovich v Police [2013] NZHC 872.

16 Sands v Police [2012] NZHC 3011.

17 R v McQuillan CA129/04, 12 August 2004.

18 At [20].

19 Koopu v NZ Police [2013] NZHC 1356.

cumulatively. The final sentence of 12 months’ imprisonment for the drink driving

offence was upheld in the High Court.

[23] In Kucenko v NZ Police20 Fogarty J determined that a starting point of

20 months’ imprisonment was not out of range. In that case, the appellant was

facing his tenth conviction over 40 years. His blood alcohol levels were

252 micrograms of alcohol per 100 millilitres of blood. Six years had elapsed since his last conviction. He had also been previously imprisoned for drink driving related offences.

[24] In Hakiwai v NZ Police21 the appellant contested his sentence of two years and four months’ imprisonment for two convictions of driving while disqualified and one conviction of driving with excess breath alcohol, imposed cumulatively. The starting point adopted in relation to the EBA was 18 months’ imprisonment, which was then reduced to 14 months’ imprisonment to reflect the guilty plea. In that case, the appellant had crashed into a barrier whilst driving with an excess blood alcohol of 180 milligrams of alcohol per 100 millilitres of blood. He was disqualified at the time. The appellant had 15 previous drink drive charges. The sentence was upheld.

[25] Finally, the respondent referred to Police v Perajack22 where the offender was being sentenced for their eighth EBA conviction. After a defended hearing the offender was sentenced to 15 months’ imprisonment. While the breath alcohol level in that case was significantly higher, the element of dangerous driving was not present. The respondent submitted that the level of culpability was therefore similar to this case.

[26] It goes without saying no two cases are identical and this is reflected in the range of sentences imposed. As Wild J observed in Clotworthy, sentencing is not an exact science. The issue I must determine is whether the starting point of 15 months adopted by the Judge was outside the permissible range, taking into account the various features of offending and benchmarking the decision against previous

_authorities.

20 Kucenko v NZ Police [2012] NZHC 3398.

21 Hakiwai v NZ Police [2012] NZHC 2625.

22 Police v Perajack DC Wanganui, 15 April 2003.

[27] In order to assess roughly where this case sits on the spectrum of EBA

offending I assess it against the ten Clotworthy factors, as follows:

a) The blood alcohol level was low compared to a number of other cases. b) This is Mr Vitali’s sixth conviction. The offending which gave rise to

the fifth conviction occurred in March 2009. The offending for this conviction occurred in January 2013. The last conviction was therefore almost four years ago. However, he was imprisoned for that offence and accordingly could not drive for at least some portion of that period.

c) Mr Vitali has previously been convicted of two or more drink driving offences in close succession. His fourth and fifth EBA convictions related to offending approximately five months apart. The third offence was three years prior to that.

d) In terms of the manner of Mr Vitali’s driving, it was clearly dangerous

(as reflected in the dangerous driving conviction).

e) Mr Vitali does not appear to have been a disqualified or forbidden driver at the time.

f) Mr Vitali pleaded not guilty and was convicted following a defended hearing.

g) Mr Vitali has previously been imprisoned for EBA offending. He received a sentence of two months’ imprisonment (concurrent) for his third EBA conviction. For his fourth and fifth EBA convictions, Mr Vitali received sentences of home detention that were to be served concurrently with sentences imposed for firearms offending and operating a motor vehicle recklessly. He was not compliant and a sentence of imprisonment was substituted. I also note in this context that Mr Vitali appears to have an extremely unfortunate tendency to mix alcohol, driving, and firearms.

h) Mr Vitali has 22 convictions, dating back to 1996, including convictions for theft, and offensive behaviour. Of particular significance, however, is his large number of driving related convictions including (in addition to his EBA convictions) two convictions for operating a vehicle carelessly, three dangerous driving convictions and three convictions for driving while disqualified.

i) Mr Vitali claims a degree of remorse, although his pre-sentence report expresses concern that he does not seem to comprehend the seriousness of his repetitive offending.

[28] Obviously, not all of these factors are relevant to setting the starting point. I will address some of them (for example remorse) separately below. However, given that concurrent sentences were (appropriately) imposed for the driving offences, the dangerous manner of Mr Vitali’s driving is a significant aggravating feature in terms of setting the starting point. Other aggravating features include previous driving related convictions and the five previous EBA convictions. Although Mr Vitali’s breath alcohol level can be considered low, comparatively, the fact that this is his

sixth EBA conviction, and his 14th and 15th convictions relating to driving, is serious.

Mr Vitali has clearly not been deterred from continued drinking and driving by the previous sentences he has received.

[29] In my view a 15 month starting point is not out of step with the authorities I have traversed in some detail above. Mr Vitali appears to be more culpable than Mr Clotworthy (12 months’ imprisonment), but less culpable than Mr Sands (starting point 20 months). Mr Vitali’s driving appears to be worse than Mr Koopu’s, but Mr Koopu’s previous convictions were slightly worse (16 month starting point). Mr Kucenko’s starting point of 20 months was held to be not out of the permissible range (tenth EBA over a 40 year period). I also note Mr Hakiwai’s starting point of 18 months’ imprisonment for EBA and his end cumulative sentence of two years and four months’ imprisonment for two convictions of driving while disqualified and one conviction of driving with excess breath alcohol. Finally the Perajack case has some similarities to the present case. A sentence of 15 months’ imprisonment was imposed in that case.

[30] Taking all of the relevant factors of Mr Vitali’s offending into account, and also benchmarking his case against other EBA cases, the Judge’s 15 month starting point was, in my view, within range. It was possibly towards the upper end of the range, but still within range.

Issue 2: Personal circumstances/remorse

[31] Counsel for Mr Vitali submitted that Judge Thomas failed to reduce the sentence for factors such as the employment of Mr Vitali, his family situation, and expressions of remorse and regret.

[32] The respondent submitted that the Judge did not err. There does not need to be a reduction in the sentence on the basis of Mr Vitali’s personal circumstances, as none of the circumstances are legitimate reasons for a deduction. Further, there is a lack of manifestation of Mr Vitali’s remorse and regret; he has not written a letter of apology, or offered emotional harm reparation.

[33] It was for the Judge to assess the genuineness of any remorse expressed. However, the opinion expressed by the writer of the pre-sentence report that Mr Vitali does not comprehend the seriousness of his repetitive offending does raise concerns as to the extent of any remorse. The Judge was entitled to take this into account. In my view the Judge did not err by failing to apply a discount for remorse (or any other personal circumstances) on the facts of this case.

Issue 3: Should the driving and firearms sentences have been concurrent rather than cumulative?

[34] Concurrent sentences were imposed for the two driving offences (EBA and dangerous driving). Concurrent sentences as between the two offences were also imposed for the firearms offences. However, the sentence for presentation of a firearm was cumulative on the driving sentences.

[35] Counsel for Mr Vitali submitted that all of the sentences should have been imposed concurrently, on the basis that the firearms charges were part of the sequence of events that gave rise to the EBA and dangerous driving charges.

[36] Section 84(1) of the Sentencing Act 2002 provides that even where offences are connected in time, if they are of different kinds, cumulative sentences are appropriate. As firearms offending is very different to dangerous driving and drink driving, it is my view that the Judge was correct to impose the sentences cumulatively.

[37] I also note at this point that counsel for Mr Vitali submitted orally (although the matter was not addressed in written submissions) that the penalty of three months’ imprisonment on the firearms charges was excessive, given that the maximum penalty for those offences is three months’ imprisonment.

[38] In my view the three month sentence was not excessive. Mr Vitali has offended quite seriously in this instance. I consider that the District Court Judge did not err in imposing the maximum penalty for the firearms offending. Three months accurately reflects Mr Vitali’s culpability, as well as his three prior firearm related convictions. Mr Vitali appears to have a dangerous tendency to mix firearms, alcohol, and driving. A stern response was appropriate.

Issue 4: Home detention

[39] The final ground of appeal is that the Judge should have imposed a sentence of home detention rather than imprisonment.

[40] The Judge noted Mr Vitali’s strong family relationships and support network, as well as solid employment. However, he stated that a sentence of home detention could not be considered as Mr Vitali had been on home detention previously and it had failed. Mr Vitali was assessed as a medium risk of re-offending. The Judge was not prepared to consider a community based sentence, as Mr Vitali’s record was “too bad”. Instead, imprisonment was considered to be the least restrictive penalty that would still protect the public and act as a deterrent.

[41] The Judge had a sentencing discretion as to whether to impose home detention rather than imprisonment. There is no apparent error in the exercise of that discretion. It was relevant to the exercise of the Judge’s discretion that a previous home detention sentence was revoked and a term of imprisonment substituted. As

the Court of Appeal observed in R v McQuillan,23 imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of recidivist drink driving offending. Given the need for deterrence and also protection of the community, a sentence of imprisonment was justified in all the circumstances of this case.

Conclusion

[42] The starting point of 15 months’ imprisonment for Mr Vitali’s sixth EBA

conviction was not manifestly excessive, nor was the end sentence (also of

15 months’ imprisonment). The Judge did not err in determining that one of the firearms sentences should be served cumulatively with the EBA sentence. Imposed cumulatively, the sentence of 18 months’ imprisonment appropriately reflects the totality of Mr Vitali’s offending, and is not manifestly excessive. The Judge did not err in failing to allow a discount for remorse or other personal circumstances. Finally, the Judge did not err in deciding not to impose a sentence of home detention rather than imprisonment.

Result

_{[43] The appeal is dismissed.}

_{Katz J}

23 R v McQuillan CA129/04, 12 August 2004.