R v Salmon

[2015] NZHC 2808

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-1876

[2015] NZHC 2808

THE QUEEN

v

KARL SHERIDAN SALMON

Hearing:

12 November 2015

Appearances:

C Boshier for Crown

A McCormick for Defendant

Judgment:

12 November 2015

SENTENCING REMARKS OF MANDER J

[1]    Karl Salmon you are for sentence this morning in respect of five charges of sexual connection with a young person, a charge of blackmail, a charge of doing an indecent act on a young person, four charges of threatening to kill, three of which are representative, two charges of possessing an objectionable publication, and one of making an objectionable publication. You entered guilty pleas and are formally convicted of these charges.

R v SALMON [2015] NZHC 2808 [12 November 2015]

[2]    Before I proceed to the imposition of sentence I am required under the Sentencing Act to give you what is called a “three strikes warning”.

[3]    The sexual charges, namely the charges of sexual connection with a young person and the charge of indecent act on a young person, in respect of which you are convicted, are deemed as serious violent offences and, as a result, you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be provided with a written notice which contains a list of these serious violent offences.

[4]    The warning is this. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[5]    The sexual offending for which you are for sentence this morning involves two victims, and the threatening to kill charges another three victims. It is necessary for me to set out the factual background of your offending before considering the appropriate sentence to impose.

Factual Background Victim C

[6]    Your first victim, who I will refer to as C, was a 14 year old girl who you met on the social internet site Facebook. You were aged 20 years at the time. After exchanging messages and cell phone numbers, a face-to-face meeting in the grounds of a local school was arranged. The victim told you she was 14 years old and you told the victim you were 20 years.

[7]    On the night of 19 September last year and into the early hours of the following morning, the two of you exchanged messages. During the course of the exchange you

repeatedly threatened violence to the victim and/or to her male friend unless she complied with your demand to meet and engage in sexual acts with you. This also included demands that the victim send you intimate photographs of herself. It is clear you sought to intimidate and control your victim.

[8]    The next day you picked the victim up in your car and drove her to your house. There you watched a movie together before you showed the victim your bedroom. You started kissing the victim and, notwithstanding her telling you to leave her alone, you laid on top of her, pinned her down and kissed her.

[9]    You directed the victim to remove your clothing and then told her to remove her own clothing, before pushing her down onto the bed and inserting your penis into her vagina. This caused her pain, however, sexual intercourse continued for some 10 to 15 minutes. While having intercourse you videoed the act on your cell phone and took still photographs.

[10]   You directed the victim to suck your penis before rolling your victim onto her stomach and inserting your penis into her anus causing her pain.

[11]   You then recommenced having sexual intercourse with the victim. While holding her down with one hand, you used the other hand to video the connection between your genitalia and her genitalia.

[12]   After the sexual activity, you attempted to cuddle the complainant. She was distressed and crying. After dressing, you drove her home.

[13]   You and the victim stayed in contact on Facebook and through text messaging. From 25 September, you began regularly threatening the victim. You threatened to put the video of the sexual activity on Facebook, post it on her high school website, or send the video to her parents if she did not keep in contact. You repeated these threats on a number of occasions. Your victim told you to leave her alone, and that you were not boyfriend and girlfriend, but you would not listen.

[14]   In February of this year, you directed the victim, C, to send you a picture that you could masturbate over. When she declined, you threatened to post the video on the internet. As a result of that threat, C sent some intimate pictures of herself to you.

[15]   On 21 February, C confided in her mother about what had happened, and her situation. This resulted in C and her mother attending the local police station. C text you that she was going to the police. This resulted in you sending text messages threatening to kill her and burn her house down.

[16]   When you were spoken to by the police, you claimed you did not know C and had never contacted her via Facebook or text messages, nor that she had ever been to your house. Subsequently, you admitted having spoken with the victim once or twice on Facebook around the beginning of 2014, but this was the extent of your admitted contact at that time.

Victim G

[17]   During September 2014, you were in communication with another girl, G, who was aged 15 years. This victim was in the care of the Child, Youth and Family Service at the time.

[18]   On 22 September, G ran away from her CYFS residence, and sent a message to you to see if she could stay at your house. You subsequently picked her up and returned with her to your address.

[19]That day, you asked her if you could have sex with her, to which she said no.

[20]   The following day, after G and you had been drinking, and while she was lying in your bed, you came up behind her, pulled her clothing down, and commenced having sexual intercourse with her. G was just drifting off to sleep when this happened. She describes it as having hurt a great deal, and of being worried about pregnancy because you ejaculated inside her without a condom.

[21]   The following morning, you asked G to masturbate your penis, which she did. She had declined your earlier request to perform oral sex on you.

[22]   On 24 September, G’s social worker located her at your address. The social worker told you that the victim was only 15 years old and a missing person. You claimed not to know she was only 15. However, G had told you her age when the two of you had first met.

Threatening to kill charges

[23]   Turning to the threatening to kill charges. Another victim, K, also 15 years of age, exchanged messages with you on Facebook. Initially, they were innocuous until you asked K to send nude pictures of herself. K then blocked you from her Facebook page. This resulted in you threatening to kill yourself if you were not given access.

[24]   Your messages became increasingly nasty, detailing what you wanted to do with K sexually. On 12 February of this year, you began threatening to kidnap and rape K. You told her that you were watching her house and would grab her when it was dark. You threatened to kill her.  These threats were repeated in the early hours of the following morning.

[25]   Such was their effect on K and her fear of you that she wet her bed three to four nights in a row. You were aware of K’s age, as she had previously told you she was 15.

[26]   Another victim, R, also met you via Facebook in late 2014. You told R that you wanted a relationship with her but she declined, stating you were 20 and she only

14. You then sent several threatening messages to her, that you would kill her boyfriend and “put him in a hole”. These threats were repeated.

[27]   On the evening of 21 February, you sent R a message threatening to kill her, telling her she was “gonna die”. You had earlier sent messages to her, telling her that you had kidnapped people before and left them tied to trees, and you had lots of guns and knives; this clearly, with the intention of scaring and intimidating the girl.

[28]   A further victim, S, who used to flat with you for some four months was also the subject of threats on Facebook. You threatened to stab her and “cut off her face”.

Objectionable publication

[29]   After you were arrested, your cell phone was seized. On the phone three images that had been taken of C on 20 September last year were located. These images showed your 14 year old victim naked and a close-up image of her vagina. Other images of a sexual nature were also located of C’s genitalia, and an intimate video of another victim, R.

Victim Impact Statements

[30]   Mr Salmon, I have received victim impact statements from the people you have offended against. Victim C has been seriously affected by what you did. Your offending caused her great sadness and distress, resulting in her self-harming. Fortunately, she had the courage to disclose to her mother what was happening and has her family’s support. Your other victims refer to feelings of helplessness and the very deep fear you engendered in them from your threats and your psychological manipulation of them. Your victims continue to experience the effects of your offending; they feel vulnerable and continue to be fearful – feelings they should not have to cope with as relatively young teenagers. Your counsel has advised that you have read the victims’ statements, and he submits the trauma they record has provided some insight into the effects of actions.

[31]   I have received a letter from you which may indicate the beginnings of some understanding of the impact of your offending, and an expression of remorse, albeit a belated one.

Pre-sentence Reports

[32]   I have read both the pre-sentence report and a psychiatric report prepared for the purpose of assisting the Court with your sentencing.

[33]   Your childhood was marked by behavioural problems and you experienced social and learning difficulties, finding it hard to establish friendships. As an adult, however, while reporting problems with anxiety, there is no diagnosis of depressive illness or disorders. You were in permanent employment at the time of this offending,

and considered a good worker who was trustworthy and able to interact with clients. Your background is largely unremarkable.

[34]   You described a lonely lifestyle to the pre-sentence report writer. You claimed the threats communicated to your victims were empty and that you would not have done anything. This was a claim repeated to the interviewing psychiatrist, to whom you observed that you were capable of saying things in messages when particularly angry that you would not be able to say to others in person. Your risk of harmful re- offending, however, is assessed as high and will remain so unless you address the underlying factors behind your actions.

Assessing the starting point

[35]   I turn now to assessing the sentence starting point. The lead offences are the charges of sexual connection with a young person. In assessing the gravity of this offending, I take into account the following aggravating features. Firstly, there is the threatening conduct by you, beginning on 19 September last year, when you sent messages to C in an attempt to persuade her to have sex with you. This attempt at persuasion deteriorated into threats, involving ultimatums that unless she complied with your requests you would harm her or her close friends. The threats were sexually charged, explicit and persistent in the face of the victim’s rejection of your demands.

[36]   The lead sexual offences began the following day, and this threatening behaviour continued for the duration of your offending against C. Of particular seriousness are the threats you made in reaction to being informed by C that she and her mother had gone to the police.

[37]   The threats made by text and through Facebook contact against C, both prior to the sexual contact and afterwards, represents a continuing course of conduct over a period of months and is an aggravating feature. I am unsure whether these ongoing threats can strictly be categorised as premeditated, triggered as they were by your apparent anger at being rejected. However, the use of blackmail and the manipulation of your victims by having them fear you is conduct which was neither spontaneous, nor entered into without some thought. It is indicative of persistence, determination,

and it is predatory in nature. To that extent this aspect of your conduct must be considered aggravating.

[38]   The vulnerability of the victims is apparent from their young ages, being 14 and 15 at the time of the offending, although care needs to be taken to ensure there is no double counting of what is intrinsic to the sexual offending itself. There is an age disparity between yourself and your victims. You were aged 20, and notably older than the girls. The harm done to the victims in respect of the sexual offending, which cannot be underestimated, can be ongoing and lasting.

[39]   The making of the video during the course of the sexual activity with C, and the taking of photographs of her naked, further aggravates the offending in respect of this victim.1 In respect of the second victim, G, there is the repetition of the sexual activity.

[40]There are no mitigating features of the offending itself.

[41]   Having regard to these aggravating features of the sexual offending; the age disparity between the victims and yourself, in particular the explicit and serious threats to kill or cause grievous bodily harm made throughout to C, your repeated blackmailing of that victim, the fact the sexual offending involved two victims, one of whom was in CYPFS care, and the nature and number of the various sexual acts engaged with them, I consider a starting point of six and a half years imprisonment is appropriate.2

[42]   To be added to that starting point is a recognition of the separate and discrete charges of threatening to kill in respect of three other young victims, and the charges laid under the Films, Videos and Publications Classification Act. The threats to kill were explicit. They were repeated and aggravated in some instances by threats to rape. They were obviously intended to intimidate and distress the recipient. There is no tariff case for threatening to kill. The appropriate sentence will turn on the individual

1      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [47].

2      R v Johnson [2010] NZCA 168; R v Takao HC Rotorua CRI-2004-087-2227, 29 April 2005.

circumstances of each case.3 The persistent threats were particularly nasty, targeted as they were at young girls.

[43]   Each of the charges of threatening to kill constitutes discrete offending which I consider can appropriately be recognised by three separate cumulative sentences of five months imprisonment.

[44]   In relation to the charges concerning the objectionable publications, I consider that offending to have been absorbed as part of the sentences imposed in respect of the offending to which that material relates.

[45]   I consider therefore that the overall starting point is one of seven years, nine months imprisonment.

Factors personal to the offender

[46]   Mr Salmon, I now turn to the factors personal to you. You have 20 previous convictions. Noteworthy, however, are three previous convictions for sexual connection with a young person entered in respect of two separate episodes of offending in July 2011 and March 2012. The present charges represent a continuation and escalation of your previous sexual offending, which is of considerable concern.

[47]   The age disparity between you and your previous victims was not as great as with the current offending. You were yourself a youth. There needs, however, to be recognition of your recidivism to mark the continuing risk you present to young girls, and the need for their protection. As a result, I consider it necessary to increase the starting point by six months.

[48]   I have previously referred to your personal background. The only discernible mitigating personal factor, in my view, is your age. You turned 21 years in August this year and were 20 at the time of this offending. Relatively speaking, you are an immature offender, and this is reinforced by your psychological profile. I consider a deduction of six months is appropriate to reflect that fact. These aggravating and

3      Burchell v R [2010] NZCA 314 at [16].

mitigating personal factors effectively cancel each other out. There has been some belated expression of remorse and beginnings of insight which I will take into account in the rounding of the guilty plea discount, which effectively will amount to a two month discount. Although, in many respects, the guilty pleas are the strongest indicator of some insight, and the best expression of remorse.

Guilty plea discount

[49]   You pleaded guilty to a number of charges on 17 July this year, these included a charge of sexual connection in relation to C, representative charges of threatening to kill in relation to three of the victims, and two representative charges of making and possession of objectionable publications.

[50]On 11 September, you pleaded guilty to the balance of the charges.

[51]   Having regard to the timing of these pleas, the fact the trial was some six months hence when the first pleas were entered, and the strength of the available proof, which in respect of the threats were documented in the messages sent, I would allow a discount for guilty pleas, including the charges to which later pleas were entered, of approximately 20 per cent. I consider that to be a generous deduction, but I acknowledge the avoidance of stress to the victims as a result of the matter not going to trial will be considerable.

Totality

[52]   Because a component part of that overall sentence are a number of cumulative sentences, I am required to have regard to the totality principle to ensure the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending. The cumulative sentences imposed in respect of the threats to kill as they relate to the last three complainants has been tempered by that consideration. I do not consider the total term to be disproportionately long, or in breach of the principle of totality.

[53]Accordingly, the final effective sentence is one of six years imprisonment.

A minimum period of imprisonment

[54]   Because the sentence is more than two years imprisonment, I need to consider whether you should serve a minimum period of imprisonment. The Crown has previously submitted that this is an appropriate case for the imposition of a minimum period of not less than 50 per cent of the sentence to be imposed.

[55]   Mr Salmon you would be eligible for parole, in the normal course of events, upon the elapse of two years. In my view, that is unlikely to be adequate having regard to the level of your culpability, the harm you have caused, but importantly the need to protect the community while you address your offending, given the risk you currently present, coupled with the need to provide personal and general deterrence for offending of this nature.

[56]   The psychiatric assessment refers to your lack of insight into your offending and its impact on your victims. You are assessed as having a combination of risk factors which correlate to an increased and significant risk of further sexual offending should you have contact with young and therefore vulnerable potential victims. This would seem almost inevitable given access to the internet. The risk is clearly amplified in the absence of assessment and treatment.

[57]   I consider a minimum period of imprisonment is appropriate. I must say, I am mindful, however, of your relatively young age, and that you have expressed interest in engaging in counselling and treatment to understand your offending and prevent the risk of future reoffending. In that regard, the therapeutic treatment programmes for sexual offenders at Kia Marama is considered as being potentially beneficial. However, in the absence of you addressing the motivating factors that appear to sit behind your offending it is likely you will continue to be at a high risk of re-offending.

[58]   Taking all these considerations together, I consider a minimum period of imprisonment of two and a half years is appropriate. Ultimately, of course, it will be an issue for the Parole Board to determine when you might safely re-enter the community, and it may well be that you will need to spend a far longer period in prison before you can be, with confidence, safely released. That will no doubt depend on your efforts, Mr Salmon, to address the underlying causes of your offending.

[59]Could you now please stand.

[60]   In respect of each of the charges of sexual connection with a young person, you are sentenced to a term of imprisonment of five years.

[61]   On the representative charge of threatening to kill as it relates to the victim C, you are sentenced to one year’s imprisonment.

[62]On the charge of blackmail, you are sentenced to two years imprisonment.

[63]   On the charge of doing an indecent act on a young person, you are sentenced to two years imprisonment.

[64]   In respect of the charge of making an objectionable publication, you are sentenced to 18 months imprisonment.

[65]   On each of the two charges of possession of an objectionable publication, you are sentenced to six months imprisonment.

[66]All these sentences are to be served concurrently.

[67]   In respect of each of the three charges of threatening to kill, as they relate respectively to victims K, R and S, you are sentenced to three cumulative terms of four months imprisonment. To be clear, each of those sentences is cumulative on the other, and on the sentence of five years, this results in an effective sentence of six years imprisonment.

[68]   In respect of the charges of sexual connection with a young person, you are ordered to serve a minimum period of imprisonment of two and a half years.

[69]You may stand down.

Solicitors:

Brandts-Giesen McCormick, Rangiora Raymond Donnelly & Co, Christchurch