R v Bitossi [2015] NZHC 77 (5 February 2015)

Last Updated: 5 February 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-085-004184 [2015] NZHC 77

THE QUEEN

v

_{ANGELO DOMINIC BITOSSI}

Hearing:	5 February 2015
Counsel:	S C Carter and H K Goodhew for Crown D A Ewen for Defendant
Sentence:	5 February 2015

_{SENTENCE OF SIMON FRANCE J}

Mr Bitossi,

[1] You appear for sentencing on one charge of arson. You were convicted following a Judge alone trial before me. The facts are fully covered in that publicly available judgment and so at this point I note only the main features.

[2] Acting out of a sense of grievance with an associate, you set fire to his individual storage unit which was located in a block housing 224 personal storage units. You were able to do so because you had been there often, and knew the relevant codes. The offending was planned but not particularly sophisticated. You did, however, make considerable effort to conceal your identity, with a reasonable

_{measure of success in so doing.}

R v BITOSSI [2015] NZHC 77 [5 February 2015]

[3] The way you set fire to the particular unit was reckless and showed a total lack of care and concern for the owners of other units, and anyone who might be in the building. The consequent level of damage and heartache caused has been huge. I do not consider you intended to do more than destroy the particular unit, but the method you chose (petrol spread about within the unit, open door, and a trail of petrol down the corridor to ignite it) made a greater scale of fire almost inevitable. That is what happened. The top floor was totally destroyed, and the bottom floor significantly damaged by water. The private victims number over 300, and your actions have caused a significant loss to the storage business as well as tremendous stress.

[4] You deny your offending but it is important to record in your presence that I have read more than 50 victim impact statements from people who have suffered devastating losses of personal memorabilia and irreplaceable possessions and memories. For some the reasons the goods were in storage were connected to personal tragedies that have been reignited in their minds and feelings. For others plans for the future have been put on hold or irrevocably altered. For all, there has been weeks of stress and financial loss, some to a very significant extent. We heard a victim impact statement read today – it is a snapshot of all those I have read.

[5] This is the unique aspect of your offending. There have been other arsons that have caused this level of loss ($9–10 million) or have damaged the heart of a community (historic buildings) but the scale of personal loss and distress to over

300 people is unparalleled. It requires a sentence towards the higher end of the range and I consider eight and a half years is appropriate.¹

[6] That starting point reflects the seriousness of this offending, and the inevitable risks to members of the public and fire fighters that this scale of fire brings. The timing at night lessened the likelihood of other users being present, and I have not been advised that the danger to the professional fire fighters was beyond

_{what one would normally expect. That is not to minimise the risk to which they are}

¹ The Crown suggested 11 years; Mr Ewen eight to nine. The Crown relies on Honan but the commercial motivation, and the fact that the arsonists were paid, places that, in my view, in a different category. The range for serious arsons, based on a perusal of other decisions, is generally seven to eight years but for the reasons given, I see eight and a half appropriate.

exposed, but rather to observe that I have not been advised of particular features of this fire that require specific marking out. As noted, I do not consider you intended wider damage than the targeted unit.

[7] You have a significant offending record but little that relates to the current charges and I see no reason for an increase.

[8] As for mitigation, I have read the pre-sentence report and note the personal factors mentioned there. I do not set them out for privacy reasons but indicate I have considered them. Generally I see no basis for reduction, and also note that deterrence and denunciation of this type of conduct must prevail.

[9] That leads me to the issue of minimum non parole period. I do not consider that one third of the lead sentence adequately denounces and deters this conduct, and the devastation you have visited on so many people. I direct that you serve half of the sentence before you are eligible for release, at which time any public safety issues you present will be assessed by the Parole Board.

[10] Reparation is simply unrealistic. Several victims have indicated a desire for orders to be made but there is no evidence of any capacity to pay and no expectation of any future ability to do so. Making an order would simply create false hope and on-going frustration for victims, and I decline to do so.

Please stand.

On the charge of arson I sentence you to eight years, six months’ imprisonment. I

_{order that you serve 50 per cent of that term before being eligible for parole.}

_{Simon France J}

Solicitors:

Luke Cunningham & Clere, Crown Solicitors, Wellington

D A Ewen, Barrister, Wellington