R v Salt
[2022] NZHC 3007
•17 November 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-008962
[2022] NZHC 3007
THE QUEEN v
HESTON SALT
Hearing: 17 November 2022 Appearances:
S S McMullan for Crown E P Priest for Defendant
Judgment:
17 November 2022
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: E Priest, Auckland
R v SALT [2022] NZHC 3007 [17 November 2022]
[1] Heston Salt, you are for sentence this morning having pleaded guilty to three charges of wounding with intent to cause grievous bodily harm. The maximum sentence for each offence is 14 years’ imprisonment.
[2] On 29 February 2020 at around 7.35 am you and three unknown associates drove to a property in Mt Roskill. Earlier that morning you had effectively been summoned to meet in response to a text from an unknown number which read “Who is available URGENT!!!” which you had received at about 6.06 am. You left a gang pad in Brentwood Avenue, Mt Eden at 6.13 am in response to that text and went to the Wesley Community Centre in Mt Roskill. Between 6.30 and 7.30 am, you and your associates drove past the victim’s address on a number of occasions carrying out reconnaissance. At 7.35 am the four of you drove in your SUV and parked outside the address. You and two others exited the car. The two offenders that you accompanied into the house were armed with a 12-gauge shotgun and a .22 rifle. At 7.36 am the three of you entered the address through the laundry door. The remaining offender, the driver, stayed in the car.
[3] The address you went to was the home of the Eliu family. Mr and Mrs Eliu lived there with two of their daughters. Their daughters’ partners, Mr Finau and Mr Vea and their children also lived at the address. All of the family, apart from Mr Vea’s partner and two of her children, were home at the time. Mr Finau and his partner’s bedroom opened into a hallway opposite the laundry. Mr Finau and his partner were in their bedroom. Mr Finau saw you and your associates enter the laundry. He told his partner to hide herself in the cupboard of their bedroom. The offender with the .22 firearm shot Mr Finau. The bullet penetrated his right eye and lodged in his brain. A second shot was fired which lodged in the door jamb of Mr Finau’s room. Mr and Mrs Eliu’s bedroom was next to Mr Finau and his partner’s bedroom. On hearing the first shot Mr Eliu turned to see the gunmen in the hallway and yelled at them. As he came out of his room the offender with the .22 firearm shot Mr Eliu through his right collar bone. Mr Vea and his partner’s room was on the other side of Mr Eliu’s bedroom. Mr Vea was in there at the time with his young daughter. After hearing the shots he came out of the bedroom into the laundry area. As he did so, he was shot in the upper left arm by the offender with the shotgun. The whole incident only took a few minutes. You and the others then ran back to your SUV and left the scene.
[4] The three victims who were shot all sustained serious injuries. Mr Vea received a shotgun wound to the left bicep with multiple pellet wounds around a central wound, which resulted in lost sensation below his left elbow joint. Mr Eliu received a single gunshot wound to the right shoulder above the clavicle. The bullet entered through the front and exited the rear of his shoulder causing significant blood loss. The most serious injury was to Mr Finau. He was shot through the right eye with a .22 bullet. The bullet passed through his right orbit medial wall, lodged in the temporal bone with the largest metallic fragments lying in the left middle ear cavity, resulting in a laceration to his right upper eyelid, right globe rupture, medial orbital wall and floor fractures and a left dead ear. Mr Finau has been left permanently with lost vision in his right eye.
[5] In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. The primary purposes of the sentence in this case must be to denounce your conduct and deter you and others from committing similar offences in the future. The sentence must also hold you accountable for the harm that you have caused to the victims, and also to protect the community. The unlawful use of firearms in the Auckland community is of particular concern. It is becoming a weekly if not daily occurrence and it is a scourge on the community. The resort to the use of firearms endangers innocent members of the community and will not be countenanced.
[6] As to the principles, the principles of sentencing require the Court to take into account the gravity of the offending and the degree of your culpability. The sentence should also be consistent with sentences imposed on other offenders for similar types of offending. The sentence should also be the least restrictive outcome appropriate. In this case, Ms Priest realistically accepts a sentence of imprisonment is obviously required.
[7] In the case of R v Taueki1 the Court of Appeal accepted that for the most serious of grievous bodily harm cases, a starting point of 14 years was required to reflect the
1 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
provisions of the Sentencing Act 2002 and that a starting point of close to 14 years was required if the offending was near to the most serious of cases.
[8] The Crown submits your offending falls towards the higher end of band 3 of the guideline judgment of Taueki, towards 14 years. It identifies a number of aggravating factors in your case: extreme violence; that the violence was committed with lethal weapons; the use of two firearms; the level of injury caused to the three victims, particularly the ongoing harm and injury to Mr Finau; the presence of multiple attackers; that it involved a home invasion; and that it involved a degree of pre-meditation or planning.
[9] The Crown submits having regard to the circumstances of your case and Taueki and other authorities,2 a starting point of around 11 to 12 years’ imprisonment is required, together with an uplift of 18 months to reflect the fact the offending occurred while you were subject to parole for earlier further serious offending. The Crown accepts you should be given credit for your guilty pleas but submits no other allowance is appropriate.
[10] Ms Priest submits a starting point of seven to eight years is appropriate.3 She emphasises that the summary of facts confirms you were not armed. Ms Priest also referred to the cases of Keil v R and Kara v R in particular, where the Court had adopted starting points of six and seven years where the defendant was not the principal offender.4 In the course of submissions this morning she has also drawn the Court’s attention to the case of Mowbray.5
[11] While I accept that the summary of facts confirms you were not armed, you were one of the three who went into the Eliu’s home. You did so in accordance with a plan. The offenders with the guns would have been emboldened and encouraged by
2 R v Taueki, above n 1; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37; Lee v R [2021] NZCA 297; Howard v R [2018] NZCA 633; R v Homan [2017] NZHC 532; Huata v R [2013] NZCA 470; Clunie v R [2013] NZCA 110; and Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [9].
3 Tahuri v R [2013] NZCA 254; R v Daley [2020] NZHC 1560; R v Amohanga [2021] NZHC 1121; R v Lyttleton [2016] NZHC 1041; Griffin v R [2019] NZCA 422; Jefferies-Smith v R [2020] NZCA 315; R v Ranui Dick-Karetai [2022] NZHC 1536; R v Poole [2014] NZHC 1126; R v Roake [2017] NZDC 18312; R v Robinson HC Hamilton CRI-2007-019-6307, 24 July 2009;
4 Keil v R [2017] NZCA 563; and Kara v R [2007] NZCA 189.
5 Mowbray v R [2018] NZCA 560; and R v Mowbray [2019] NZHC 820.
your presence. As the Court of Appeal observed in Howard v R it is not invariably the case that the person firing the shot is treated as more culpable.6 There is no reason in principle why the starting point for a principal offender and a party should not be the same if the circumstances of the offending warrant that.
[12] In this case given the aggravating circumstances of a targeted home invasion, multiple offenders, use of firearms, three victims, and the serious injuries sustained by the victims, particularly Mr Finau, a starting point for the shooters would have had to be close to the maximum of 14 years’ imprisonment (bearing in mind there were three offences). For them, this case falls within the most serious of cases of wounding with intent to cause grievous bodily harm.
[13] However, on balance and notwithstanding Mr McMullan’s submissions that there should be no reduction in your culpability as you were not a shooter, having regard to Ms Priest’s submissions, I accept the starting point for you should be somewhat less given that you were not one of the shooters. But the starting point must still reflect the serious aggravating features of the offending and the fact that there were three offences and that you knew what was going to happen.
[14] I note that the case of Kara v R that Ms Priest referred to was an appeal by the Solicitor General and the circumstances of that offending (despite the outcome) and Mr Kara’s involvement were less serious than the present. Also, there was only one victim. It was a quite different case. Similarly, the facts of R v Kiel are also quite different as is the case of Mowbray. I consider their culpability to be less than yours in this case. The difference and aggravating feature of your case as compared to the cases that have been referred to by counsel is in this case that there were three victims and three offences.
[15] I take as a starting point for your sentence 11 years’ imprisonment. I uplift that start point by six months to take account of the fact that this offending occurred while you were still subject to a sentence of three years, three months imposed in August 2018 on kidnapping and blackmail charges. I do not make any uplift for your previous offending itself.
6 Howard v R, above n 2.
[16] I then turn to your personal mitigating factors. The pre-sentence report notes you were living with your wife at the time of offending. You and she have had a long relationship and have three children. Your wife has expressed her disappointment in you but confirms she is still supportive. She says you have made a number of wrong choices. You are assessed as at a high risk of reoffending given the recidivist nature of your offending and the increase in the severity of your offending.
[17] Ms Priest has obtained a s 27 report, which details your background in some detail. That report concludes:
We have endeavoured to illustrate links between [Mr Salt’s] background and his offending. In our view, the underlying factor of [the] offending is the dysfunction in his upbringing which lead to him seeking belonging in other groups which lead to getting into anti-social behaviour. His exposure to violence and being a victim of this along with early use of drugs and alcohol contributed to this. He is now struggling to overcome this but is making good progress according to his self-reporting.
[18] Ms Priest also submits you have rehabilitative needs that should be addressed and resolved in relation to alcohol and drug abuse and violent offending. She says you have insight and are motivated to do the work necessary.
[19]She refers to your letter and the letter from your wife in support.
[20] Mr Salt, I do not accept that submission. I do not see any such progress. As noted, the progress is self-reported. As I have noted, this offending occurred while you were subject to an earlier sentence for serious offending. You lack insight or concern for your actions other than the impact on you and your family. The offending has gang connotations. You chose to place the gang and its needs ahead of your family. The point is made in the s 27 report your family is suffering while you are in custody. Mr Salt you are the cause of that, no-one else. That should have been apparent to you when you were serving the sentence on your previous charges and were subject to the release conditions. I am not prepared to make any allowance for rehabilitative prospects as such. Actions speak louder than words and they also have consequences.
[21] In Carr v R the Court of Appeal agreed with the sentencing judge that in serious violence cases “[e]xcessive discounts in this context” undermine what the Judge
described as the criminal law’s precepts of human agency and choice.7 As the Court observed such an approach is consistent with the provisions of the Sentencing Act 2002. The Judge’s error was in not allowing any discount.
[22] In Zhang the Court noted in some cases an offender’s background may impair choice and diminish moral culpability and where those constraints contribute causatively to the offending, they require consideration. In your case I accept that your disadvantaged background and cultural disconnect has made it more likely that you would involve yourself in gangs which in turn has made it more likely you would become involved in violent offending. That is the nature of gangs. I consider a reduction of 10 per cent is the most that the Court can allow to recognise that in your circumstances, bearing in mind the serious nature of the offending you allowed yourself to become involved in, in this case.
[23] The principal reduction in your sentence will be for your guilty plea. Ms Priest has argued for a full 25 per cent reduction. Your pleas were not entered at the first opportunity, as is required for the 25 per cent discount. Ms Priest and you both criticise your previous counsel. However, Ms Priest took over on 29 October 2021. Ms Priest also refers to late disclosure of Telcom materials in January 2022. You refer to that delayed disclosure.
[24] However, the charges were laid in November 2020 and the guilty pleas were not entered until 6 April 2022. You knew what you had been involved in Mr Salt. The guilty pleas three weeks prior to trial were entered too late to reschedule any other criminal trial in its place, and while I note there was an amendment to the charges with the withdrawal of the attempted murder charge and the additional charge of aggravated burglary being withdrawn, those amendments were to your benefit. In the circumstances I allow 17½ per cent for your guilty pleas.
[25] Ms Priest also argues for a further reduction of five per cent for remorse. You have provided material to the Court to support that submission including affidavit evidence. You say that in fact you have recently reconciled with Mr Finau while you were both on remand. You exercised together and shook hands. The Crown responded
7 Carr v R [2020] NZCA 357.
by providing the Court with CCTV footage from a couple of days later which shows you trying to force your way into his cell (assisted by your cell mate) while the corrections officers were opening Mr Finau’s door to let him into his cell. The CCTV footage is compelling. It puts the lie to your suggestion you only wanted to ask Mr Finau why he had changed his exercise regime. There is a period of about 40 seconds while Mr Finau was outside his cell on the landing and you were just down the landing from him. If you had wanted to speak to him, you could have. Also, your cell mate was lurking nearby and obviously keeping watch over his shoulder before he joined in. Under s 24(2)(d) of the Sentencing Act the onus was on you to establish the remorse that you had argued for. I do not consider you to be genuinely remorseful at all. You lack insight into your offending and its impact on others. Your concern is at your personal situation.
[26] Finally, I decline to make any allowance for the constraints of custody during Covid. Your situation is no different to any other New Zealand citizen on remand. Security classifications are a matter for the Prison. There are minimum standards Corrections must meet. If they fail to meet those then prisoners have rights.
[27] In total, you are entitled to a reduction of 27½ per cent. That reduces your sentence to eight years, four months. A minimum non-parole period could be justified in this case to deter and denounce such offending and to protect the community. However, on balance, I have decided not to impose one to give you an opportunity to prove that you genuinely do intend to take steps to rehabilitate yourself.
[28] Mr Salt please stand. On each of the charges of wounding with intent to cause grievous bodily harm you are sentenced to eight years, four months’ imprisonment. The sentences are concurrent.
[29]Stand down.
Venning J
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