R v Salt

[2017] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-003949 [2017] NZHC 1979

THE QUEEN

v

HESTON SALT

Hearing:	18 August 2017
Appearances:	H Steele for the Crown M Ryan for Defendant
Sentence:	18 August 2017

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:

Crown Solicitors, Auckland

M Ryan, Auckland

R v SALT [2017] NZHC 1979 [18 August 2017]

Introduction

[1]      Mr Salt, you may remain seated until I ask you to stand.

[2]      You  appear  for  sentence  today  having  pleaded  guilty  to  one  charge  of kidnapping pursuant to s 209(b) of the Crimes Act 1961, and to one charge of blackmail, pursuant to ss 237(1) and 238 of the Crimes Act.  The maximum penalty for each offence is the same – namely 14 years’ imprisonment.

[3]      You have already received a three strikes warning when the convictions were entered.

Relevant facts

[4]      You are a member of a street-based gang known as DMS – or “Dope, Money, Sex”.

[5]      In the 12 months prior to June 2016, you had supplied methamphetamine to the first complainant – A.   Over that period, A accumulated a drug debt of some

$10,000 which was owed either to you or to the DMS gang.  He subsequently made a payment of $5,000, leaving a debt of $5,000 outstanding.

[6]      In June 2016, members of the DMS gang started making threats to A by sending text messages to his mobile phone.  Gang members threatened to hurt people A knew if the drug debt was not repaid in full.   Further, A was told by DMS members that he owed another $12,000, making the total debt one of $17,000.

[7]      Fearing for their safety, A and his son D went into hiding.  Members of DMS found out about this and they then conducted enquiries with A and D’s associates to ascertain their whereabouts.

[8]      You and your brother, Tremayne, formed the common intention to recover the debt from A. Your plan was to locate and kidnap D and hold him for ransom, until A repaid the $17,000 you alleged was owing.

[9]      At 10.30pm on Saturday 10 July 2016, A and D were at their home address in West Auckland. Various members of the DMS gang, including you and your brother, travelled to the address.   You were in a separate car from your brother.   He was armed with a pistol.

[10]     You parked your car a short distance away.   Your brother drove up to the house and parked outside it.

[11]     As a ruse to get D to come out of the house, your brother instructed another person present to send D a text asking him to come outside for a smoke.  D did come outside.  He walked up to the car your brother was in.  When D reached the car, your brother pointed the pistol at him, and instructed him to get into the car.  Fearing for his life, D got into the rear passenger seat.  The vehicle was then driven the short distance up the street to your car.  Your brother told D to get out of the first car and to get into the rear passenger seat in your car.  D did so.  Your brother got into the front passenger seat in your car. He still had the pistol with him.  D was then told by you and your brother that he was being held until his father paid the drug debt, and that he would be shot if he tried to run away.

[12]     You then drove your car, first, to a nearby supermarket.   D was told to lie down on the back seat, and to look at the floor so that he would not know where you were going.  You then drove to an address in the Mt Roskill area.  You left D there with your brother and at least four other persons.

[13]     D was detained at the address in Mt Roskill for approximately five hours. Over that period he was threatened by your brother and the other associates on numerous occasions, and was told that he was going to be shot.   They took turns assaulting him by punching him to the head, body and arms.  He was assaulted with an aluminium pipe and stabbed in the right knee with a scalpel.  He was made to call his father on several occasions to demand repayment of the drug debt.

[14]     At about 3.30am the next day, D was blindfolded by your brother and his other associates and driven to a nearby park.  While he was in the car, D was warned that if he spoke to the police, he would be killed.  He was also told that before he would be let go, he would have to be shot as a warning to his father.  Your brother

told D to hold his hands together in front of him.  He then shot D with the pistol through the back of D’s right hand.  The bullet entered D’s right hand between the thumb and forefinger, before exiting through the palm and lodging in the palm of his other hand.   D then ran to a nearby address to seek help.   He was subsequently hospitalised.

[15]     When you were arrested by the police, you stated that you were at home asleep at the relevant time.

[16]     Your brother was sentenced by Woodhouse J on 29 June 2017 on charges of kidnapping  and  wounding  with  intent  to  injure.    A starting  point  of  11  years’ imprisonment was adopted.  A nine month discount was given for remorse, age and your brother’s prospects of rehabilitation.  A 20 per cent discount was given for his guilty pleas.   The end sentence imposed was one of eight years and two months’ imprisonment.

Pre-sentence report

[17]     You are 27 years old, and you identify as Tongan.  You have nine siblings, and  you  report  that  you  maintain  a  good  relationship  with  all  of  your  family members. You currently live with your brother, your brother’s partner, their children, your partner, and your own children at your brother’s home.

[18]     You acknowledged to the Probation Officer who interviewed you that you are a member of DMS, and that your offending occurred while you were acting as a member of that gang.  You stated that at the time of the offending, you were in need of money as you were preparing for your own wedding.  You insisted that you were trying to collect the money from A on behalf of others, and that you had been promised a small sum in return.

[19]     The report writer assessed you as having a medium to high likelihood of re- offending, and of posing a medium to high risk of harm to others.  That assessment was made on the basis of your criminal history, the types of offending you have previously engaged in and your attitude towards your offending.

[20]     The report writer considered that you showed remorse and regret for your actions involving the kidnapping and blackmail, and that you accept that in hindsight you should not have acted as you did.  You told the report officer that your actions have not only affected the victims, but also your own family and your partner.

[21]     A sentence of imprisonment was recommended.

[22]     You have 12 previous convictions accrued over the period 2007 to 2010. Most of your convictions are for relatively low-level offending, such as wilful trespass.  You have committed a number of your offences whilst on bail, and you have a conviction for failing to answer District Court bail when you were on remand on a charge of aggravated robbery.  You were convicted in relation to that charge in

2008, and sentenced to home detention.

Victim impact statements

[23]     D prepared a victim impact statement in relation to your brother’s sentencing. The Crown relies on it in this case as well.  D states that he was terrified when he was kidnapped at gun point.  He records that he had to wait to have an operation to repair the damage to his hand.   It is likely that he will suffer from arthritis in his thumb from the damage caused, and that he will require ongoing physiotherapy.  He states that he has suffered not only physical trauma, but also mental distress.  He has had to attend counselling sessions and is currently suffering from depression.  He has had to move away from his father for his own safety, and has cut ties with his friends for the same reason.   He reports that he feels as though he has had to start from scratch, and that he feels that his whole life has been put on hold while he tries to recover both physically and mentally.

[24]     A, in his victim impact statement, says he could hear his son screaming in the background when he was speaking to the offenders on the phone after his son had been kidnapped.  He says he is distressed by what happened to his son, and explains that he could not have felt worse when he found out that his son had been beaten and shot.  He also has had to move away, and cut contact with his family.  He misses his relationship with his son and simple things like family birthdays.   He also reports that he finds it hard to sleep at night.

Restorative justice conference

[25]     I note from the file that on 26 July 2017, Woolford J made orders to facilitate a restorative justice conference.  A conference was convened and you attended.   I have received a report on that conference.  One of the complainants, D, was present. You apologised profusely to D and he accepted your apology.

Submissions

[26]     Mr Steele, for the Crown, submits that the primary purposes of sentencing in your case should be to deter you, and others, from similar offending and to denounce your conduct.  He also submits that the sentence imposed must hold you accountable for the harm done to the victims, and protect the community.  He suggests that there are  various  aggravating  factors  involved  in  your  offending,  and  he  proposes  a starting point of four and a half to five years’ imprisonment.  He notes that you have various previous convictions, but does not suggest that the starting point should be uplifted to take these into account.  He accepts that you are entitled to a discount for your guilty pleas, but notes that they were not  at the first reasonably available opportunity.    In  the circumstances  of this  case,  he is  prepared  to  accept  that  a discount of 20 per cent would be appropriate.

[27]     Mr  Ryan,  on  your  behalf,  submits  that  the  most  relevant  principle  for sentencing in your case is that the Court should impose the least restrictive outcome that is appropriate in the circumstances.   He argues that the lead charge is that of kidnapping, and notes that there is no tariff case for this type of offending.  He refers to various cases he suggests are comparable and submits that a starting point of 18 months to two years’ imprisonment should be adopted for the kidnapping charge.  He suggests an uplift of four months to reflect the charge of blackmail.   He seeks a discount of 25 per cent for your guilty pleas and a further discount for remorse, your attendance at the restorative justice conference and for the fact that you were on EM bail for nine months.  He suggests that a sentence of home detention can be imposed.

Purposes and principles of sentencing

[28]     In sentencing you, I have considered the principles and purposes set out in ss

7 and 8 of the Sentencing Act 2002.  In particular, I have had regard to the need to

hold you accountable for your offending, the need to promote in you a sense of responsibility  for  and  an  acknowledgment  of  that  offending,  and  the  need  to denounce the conduct in which you were involved.  I have also been mindful of the need to deter others from committing the same or similar offences.  I have taken into account the gravity of the offending with which you were involved, including your culpability.   I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders  committing  similar  offences.    I have  also  sought  to  impose  the  least restrictive outcome that I consider is appropriate.

Analysis

Lead offence

[29]     This is one of those cases where it is difficult to assign to one or other of the offences the description of being the lead offence.   Both are subject to the same maximum penalty.  It is unclear what purpose would be served by taking one offence as the lead offence, and then uplifting the sentence for the other offence, before considering totality.  In my view, the appropriate approach in this case is to look at the level of sentence which overall reflects the gravity of the offending, and to

impose a sentence in respect of both charges.1

The offending

[30]     There are no tariff cases for either kidnapping2 or blackmail.3

[31]     Here,  in  my  view,  there  are  a  number  of  aggravating  features  to  your offending.  I note the following:

(a)       First, there was a significant degree of planning and premeditation.

You and your brother formed the common intention to recover the drug debt owing by A.  The plan was to locate and kidnap D, and to

1      R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005 at [23]. Adopted in R v Mehana HC Auckland CRI-2007-004-23679, 11 December 2009 at [27]; cf R v Hunter HC Auckland CRI-2008-092-11429, 25 June 2010 at [10]-[11]; R v Duffy HC Christchurch CRI-

2009-042-2801, 15 April 2010 at [12].

2      R v Corbin [2016] NZHC 2570 at [17].

3      R v Kerr [2016] NZHC 512 at [25].

hold him ransom until A paid the drug debt.  You, your brother and other gang associates conducted your own enquiries to find A and D. While your brother travelled to A and D’s home address to lure D out of the house, you waited nearby in another car.

(b)Secondly,  there  is  the  violence  threatened.    I  accept  that  on  the summary of facts to which you have pleaded guilty, you were not involved in administering any of the actual violence, and that you are entitled to be sentenced by reference to that summary of facts.  The summary of facts does however record that  you and  your brother threatened D with violence when he got into your car.

(c)      Thirdly, there is the extent of the harm suffered by D.   He was an innocent victim, not liable for the drug debt.  He was kidnapped and held for ransom.  He sustained serious physical and emotional harm, and as a result of the offending he was left in fear of his life.  Again, I accept that you were not involved in the infliction of the violence on D, but you were involved in his kidnapping, and that of itself must have been a highly stressful experience for D.

(d)Fourthly, there is the use of the weapon.  In my view this is the most serious aggravating factor.  Your brother used a .22 calibre pistol in the course of the offending.  You must have been aware of the fact that he had a gun when D first got into your car at your brother’s direction, and effectively at gun point.   You and your brother threatened to shoot D if he tried to run away.

(e)       Fifthly, the kidnapping was resorted to, to facilitate the commission of

the offence of blackmailing D’s father, A.

(f)      Finally,  the  kidnapping  involved  multiple  offenders  –  you,  your brother, and others – and it had gang overtones.

[32]     I am not aware of any mitigating factors in relation to the offending, and none have been suggested by Mr Ryan on your behalf.

[33]     I have considered the sentence imposed by Woodhouse J on your brother.  As I have already noted, a starting point of 11 years’ imprisonment was adopted for him, but he was charged with, and pleaded guilty to, wounding with intent to injure.  His case is more serious than yours.

[34]     The Crown has pointed to two similar cases.4     Both involved kidnapping, blackmail, threats, multiples offenders and violence.  In one, a sentence of five and a half years’ imprisonment was adopted for the kidnapping and blackmail charges.  In the other, a starting point of five years and four months’ imprisonment was adopted.

[35]     Mr Ryan referred me to three further cases.5     In one it was noted that a starting point of two years was appropriate for a kidnapping.  In another, the Court of Appeal approved a starting point of three years’ imprisonment for kidnapping.  In the third, the Court of Appeal upheld a starting point of three and a half years for kidnapping and related offending.  Mr Ryan argued that your culpability was far less than that of the defendants in any of these cases.  I note however that none of the cases referred to by Mr Ryan involved the use of a firearm.

[36]     I have also considered three other cases.6

(a)       In one, where there was no actual violence involved, a starting point

of four and a half years’ imprisonment was adopted.

(b)In the second, there was again no physical violence, although threats were made.  A starting point of three and a half years’ imprisonment was adopted for all offending, with two years’ imprisonment for the blackmail and kidnapping charges.   In this case, the Judge made it clear that the defendants were being treated leniently and that far more serious sentences would be imposed for future offending.   She commented that the typical response by the Courts to this kind of

offending is one of imprisonment.7

4      R v Tie [2012] NZHC 2517; R v Martin HC Auckland CRI-2006-055-2734, 1 April 2008.

5      R v Warren [2017] NZHC 1465; R v Hayes CA171/06, 20 July 2006; and Harema-Watts v R

[2017] NZCA 306.

6      R v Rangitaawa, above n 1; R v Hunter, above n 1; R v Duffy, above n 1.

7      R v Hunter, above n 1, at [4].

(c)      In the third, the lead charge was considered to be blackmail and a starting point of three years’ imprisonment was adopted.  A six month uplift was imposed.

[37]     As I have noted, the presence of a firearm and the threats made to use it is a serious aggravating feature in your case.  Taking this and all of other matters into account, in my view, the appropriate starting point for your offending is one of four years and six months’ imprisonment.

Personal factors

[38]     I now turn to consider aggravating and mitigating factors personal to you.

[39]     First, I consider your previous criminal history.  I do not consider that there is anything of relevance in that history, and I do not impose an uplift because of it. However, you cannot claim a discount for previous good character and Mr Ryan does not suggest otherwise.

[40]     As for mitigating factors, as I have noted, a restorative justice conference has been held.  You have met with D, explained why the offending occurred as you see it, and apologised to him.  I am also told by the Probation Officer who prepared the pre-sentence report that you expressed remorse when interviewed.  I accept that you are genuinely remorseful, and that you have some insight into your offending, the effect it had on D, and the effect it had and will have on your partner and family.  I allow you a discount of three months to recognise these various matters.

[41]     There is also the fact that you were on EM bail from 25 October 2016 for a period of some nine months.  The Sentencing Act recognises that a discount can be offered for this,8  and the Courts have so recognised in a number of cases.9     A discount of three months is appropriate in your circumstances.

[42]     Finally, there are your guilty pleas.  You were originally charged on 15 July

2016.  The guilty pleas were only entered on 11 July 2017 after the charges against

8      Sentencing Act 2002, s 9(2)(h).

9      R v Faisandier CA185/00, 12 October 2000 at [28]; R v Tamou [2008] NZCA 88 at [21]; Baillie v R [2010] NZCA 507 at [18],

you were finalised.   Initially the Crown asserted that you were present throughout the kidnapping.   It abandoned that assertion and there was a modification to the charges at that point.  While you only entered the guilty pleas relatively close to trial, I am satisfied that there are reasons which at least in part explain that.  On the other hand, insofar as I have been able to glean from perusal of the file, the Crown was ready to proceed and the case against you was relatively strong.  I accept from the report on the restorative justice conference that the fact of your pleas has been a very real benefit to D.   They have helped him feel that he can move on from what occurred.  In my judgment the appropriate discount for your guilty pleas is one of nine months – just under 20 percent.

Sentence

[43]     Mr Salt, will you please stand.

[44]     In  respect  of  the  charge  of  kidnapping,  I  sentence  you  to  a  term  of imprisonment of three years and three months.

[45]     In  respect  of  the  charge  of  blackmail,  I  sentence  you  to  a  term  of imprisonment of three years and three months.

[46]     The sentences are to be served concurrently.

[47]     You may stand down.

Wylie J