R v Salt

[2017] NZHC 1467

ORDER PROHIBITING PUBLICATION OF THE SENTENCE AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL OF CO-ACCUSED. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-3949 [2017] NZHC 1467

THE QUEEN

v

TREMAYNE JORDAN SALT

Hearing:	29 June 2017
Appearances:	M Hammer for the Crown M N Pecotic for the Defendant
Sentencing:	29 June 2017

SENTENCE OF WOODHOUSE J

Solicitors / Counsel:

Ms M Hammer, Meredith Connell, Office of the Crown Solicitor, Auckland

Ms M N Pecotic, Barrister, Auckland

R v SALT [2017] NZHC 1467 [29 June 2017]

[1]      Mr Salt, you can stay seated until I have finished.   I need to explain the sentence, not just to you – you understand that in considerable measure because there has been a sentence indication already – but I do need to explain it to the community as a whole because what you have done is not simply an offence against the victim, and indeed his father, but against the community.   And of course the community includes your own family.

[2]      You appear for sentence having pleaded guilty to one charge of kidnapping and one charge of wounding with intent to cause grievous bodily harm.  The maximum penalty for each offence is 14 years imprisonment.  You pleaded guilty following a sentence indication I gave you in May.

Facts

[3]      I will summarise the facts to which you pleaded guilty and which are contained in a summary of facts that you accepted before you pleaded guilty.

[4]      You are a member of a gang involved in serious criminal offending, including the supply of methamphetamine.  And, Mr Salt, it does not really matter whether I describe it as a gang or something else, but you were involved with a number of people.

[5]      Over a 12 month period Antony Jenkin built up a substantial debt to your gang for methamphetamine allegedly supplied to him by your brother Heston. Your brother was jointly charged with you for the kidnapping and for some other offences. Threats were made to Anthony Jenkin and he went into hiding with his son, Daniel.

[6]      You and, allegedly, your brother decided to kidnap Daniel and hold him with threats to try and get the debt paid by his father.  You found out where Daniel lived and lured him out of the house. You were armed with a .22 calibre pistol. You pointed this at him, got him into a car and took him with others to a house where he was then effectively imprisoned. You, or others with you, made him call his father and ask his father to repay the debt under threat.  You and others took turns assaulting Daniel by punching him to the body and face and assaulting him with an aluminium pipe. Your brother allegedly stabbed him in the knee with a scalpel. He was held at the house for

about five hours – and that is a long time in those circumstances – during which time he was threatened with the pistol on numerous occasions and told that he was going to be shot.

[7]      At about 3:30 am Daniel was blindfolded and driven to a park.  He was told that if he spoke to police he would be killed. He was told that before he was let go, he would be shot as a warning to his father.  He was told that he could choose between being shot in the leg or in the hands. You told Daniel to hold his hands out in front of him. You shot at him twice but missed when he moved his hands. Your third shot hit Daniel.  The bullet went through his right hand and lodged in his left hand.  You and your associates then left Daniel in the park.

[8]      Daniel required surgery to remove the bullet from his hand.  The laceration from the scalpel stab to the knee required stitches.  He also sustained bruising to both legs and arms, swelling on his head and a cut under his right eye.

Victim impact statement

[9]      I have received a victim impact statement from Daniel, and one from his father. Daniel said, amongst other things:

(a)      When he was kidnapped at gunpoint he was absolutely terrified.  I add that he would have been terrified for the whole time up until the point that you left him in the park having shot him and he was probably scared for a long time after, and that is reasonably apparent from the victim impact statement.

(b)He had to wait several days in hospital to have an operation to repair the damage to his hands and remove the bullet.  Further surgery was to follow to remove a wire temporarily put in his thumb and to have a brace removed.  He has been told he will have arthritis in his thumb from the damage – and that may be with him for the rest of his life – and physiotherapy will be required.

(c)      At  the  date  of  the  report,  approximately  two  months  after  these offences, he had been unable to work because of the injuries.  He had also been attending counselling to get over the trauma of what had happened that night and to try to deal with depression.

(d)He and his father have had to live separately and Daniel has felt compelled to move away for his own safety. He has also had to cut ties with friends for safety reasons.

Starting point

[10]     As you know Mr Salt, from what I said to you at the sentence indication, the first thing to do is to fix a starting point. This is the length of a prison sentence based on the seriousness of the offending, before taking account of any personal factors which might increase or decrease the prison sentence.  The relevant considerations to fixing a starting point are contained in the sentence indication. I do not intend to repeat what was said there.  The sentence indication will now form part of this sentencing, and a copy of the sentence indication will be attached to the transcript of what I am now saying so they can be read together.

[11]     For the reasons set out in the sentence indication I accepted the submission for the Crown that the starting point, assessed in relation to both of the offences, should be 11 years imprisonment. The question then is whether it should be reduced, leaving aside the reduction for the guilty pleas.

Personal factors

[12]     In relation to personal circumstances I said, when I gave you the sentence indication, that I would not increase the sentence because of a Youth Court appearance you made for aggravated robbery when you were 16 years old – and I have not changed my mind about that, just to be quite clear.   This is the only previous offence of consequence that might otherwise have been taken into account to increase the starting point. There is a reasonably long list of other offences, but they are not offences of a type that should be taken into account to increase the starting point, but they do remain relevant – and I will come to that.

[13]     I said that any further adjustments would depend on any further information relating to your personal circumstances.  I have received a report from a probation officer. I have also received a letter from your mother. And I have now received your own letter, which I have discussed with you, and the certificate from the Department of Corrections that you have now undertaken a preliminary – I assume – alcohol and other drug brief support programme.

[14]     There are no matters in any of this which would justify increasing your sentence.

[15]     There are some matters which I am satisfied should be taken into account in your favour to reduce the sentence that otherwise would be imposed. The first is your age. You were 21 years old at the time of the offences – you had just turned 21. You are not a youth, but you were still reasonably young, and that is a factor that will generally be taken into account in the assessment of a final sentence.  You are the seventh of nine children and it appears that you may have been badly influenced by at least some of your older brothers and that you have had no real guidance from your father. Your mother has advised that when you were younger you were brought up by your grandparents.  But it was after that that you started to go off the rails.

[16]     From what the probation officer has said I can accept that you have some genuine remorse for what you have done, beyond what is reflected in the guilty pleas, and an understanding of the effect on the victim.  You say you need to take part in rehabilitation programmes, and I discussed that with you briefly.  As I said, I think, Mr Salt, I hope you mean what you say because your future is entirely in your hands and the commitments you make.

[17]     The Sentencing Act requires me to have regard to these matters, but in my judgment the reduction cannot be large in relation to the total sentence when these positive matters are weighed against the gravity of what you did.  Also, as I have already said, I will not increase the sentence because of all of the previous offending, but the previous offending does weigh against the positive considerations. Putting that in simple terms, I cannot look at all the good things and just ignore a long period of bad things.   The reduction of the sentence in my assessment Mr Salt should be 9

months. And in relation to the total sentence – and in relation to other sentences – it is quite a substantial reduction, and it is to encourage you – and I hope it does.

[18]     The final consideration is the fact that you have pleaded guilty.  For reasons recorded in the sentence indication the reduction for the pleas is 20% from the point arrived at after deducting the 9 months.

[19]     The result overall are end sentences for each of the offences of 8 years and 2 months.

First warning

[20]     As I told you when you pleaded guilty and you were convicted, because of the convictions I am required to give you a warning of the consequences for you if you commit any further serious violent offence. I did not say what the consequences were in any detail. I expect you have now received written advice. But I think it is necessary to just repeat that because I did not, myself, set it out in full. And keep thinking about this. If at a later date you are convicted and sentenced to imprisonment for any further serious violent offence other than murder, you will serve the entire sentence imposed without parole or what is sometimes called early release.  If you got a sentence of 11 years, it would be 11 years in jail.  If at a later date you are convicted of murder you will be sentenced to life imprisonment and will serve that sentence without the possibility of early release unless that would be manifestly unjust.  These are pretty serious things.

Formal sentence

[21]     Mr Salt, you should now stand and I will impose the formal sentence.

[22]     On each of the charges to which you have pleaded guilty you are sentenced to imprisonment for 8 years and 2 months.  The sentences are concurrent, so that is the total sentence.

[23]     You were facing other charges, but the Crown is not offering any evidence on them. You are therefore discharged on the other charges that you were facing.

[24]   I do make an order for suppression of these sentencing notes pending determination of the trial of Heston Salt due to commence in approximately one month.

[25]     The Crown referred to two additional orders sought.  One is for destruction of the pistol.  There is an order that the pistol be destroyed.  The second is that the car involved in the abduction of Daniel Jenkin be seized. There is some uncertainty as to whether it is a vehicle owned by Mr Salt. In consequence, I will not make an order at this stage. The Crown can apply at a later date and, perhaps most appropriately, in the pending trial.

[26]     You should now stand down.

Woodhouse J

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-3949

THE QUEEN

v

TREMAYNE JORDAN SALT

Hearing:	19 May 2017
Appearances:	M Hammer for the Crown M N Pecotic for the Defendant
Indication:	19 May 2017

SENTENCE INDICATION OF WOODHOUSE J

Solicitors / Counsel:

Ms M Hammer, Meredith Connell, Office of the Crown Solicitor, Auckland

Ms M N Pecotic, Barrister, Auckland

[27]     Mr Salt, you may remain seated while I explain the indication that I am going to give.

[28]     You have sought a sentence indication on charges of wounding with intent to cause grievous bodily harm and kidnapping.

[29]     There are some limits or conditions attaching to the sentence indication, which I will give you.  And they are, to the extent that I can anticipate them in advance, as follows:

(a)      You are also charged with blackmail and unlawful possession of a firearm and assault with a weapon.  The advice I have is that, if you plead guilty to the two charges I mentioned first – wounding and kidnapping – then the other charges at sentencing will be withdrawn by the Crown. If this changes for some reason the sentence indication may no longer apply. And Ms Pecotic will explain all of these things to you, but I need to make that clear.

(b)The  sentence  indication  will  be  based  on  the  information  that  is presently available to me and which I will list in a moment. And again, as Ms Pecotic I am sure will explain, if further information becomes available which has a bearing on the matters that I am going to deal with, then the sentence indication again may no longer apply.  These are pretty standard things, but it is important that I make them clear to you.

(c)      I am not in a position to provide an indication of the final sentence, even allowing for the factors I have just referred to. And to put that into simple terms, you know that it will be a prison sentence but I cannot tell you precisely what the length of that prison sentence will be.  One reason is that almost always – certainly at this level – a prison sentence cannot be imposed without a pre-sentence report – and I do not have one.   In addition, there may be other information relating to your personal circumstances which might justify, generally, a reduction but

it could in fact justify an increase – I do not know – in the sentence that would otherwise be imposed.

(d)It is also important to make clear that, although the sentence indication is given on the assumption that the charge of blackmail, unlawful possession of a firearm, and the assault with a weapon will be withdrawn – that is the assumption – but notwithstanding the fact that you will not be sentenced on those offences, the facts which led to those charges being brought against you cannot be ignored in the sentence indication I am now giving.

[30]     Now, a summary of the information which I have relied on.  It is as follows:

(a)       First.  The charges as recorded in the Crown Charge Notice dated 18

October 2016, and which was filed in the District Court. The charge of wounding with intent is a charge against you alone. On the other charge of kidnapping, you are charged jointly with your brother Heston Salt.

(b)The second category of information is the summary of facts, which is attached to the Crown’s submissions and which I am assuming you have agreed to – and Ms Pecotic is nodding I think, yes, and which you have accepted.

(c)      Third. There is your criminal and traffic history – that is to say, the list of previous offences you have committed.

(d)Next, the Crown’s submissions and Ms Pecotic’s submissions on your behalf.  And those are the written submissions I received before the hearing started, and which I have read, and the oral submissions that we have just heard this morning.

(e)      Next, I have had regard to other cases dealing with sentences for similar, or perhaps broadly comparable, offences that were referred to me by Ms Hammer, for the Crown, and by Ms Pecotic.  I will simply

note the names of those cases – I am not going to discuss them.  They are: Taueki, Andrews, Kihi and Brown, Murray, Taylor, Charteris, and Jackson.1

[31]     That is the limit of the information on which this sentence indication is based. And I note that I have not seen what would be a provisional victim impact statement. In addition – and I think it is perhaps important to say this – in that regard I therefore do not know whether there are any long term consequences of the assaults on the person that I will refer to as the victim, although technically at this stage he is often referred to as the complainant.

[32]     Mr Salt, I do not intend to set out the full reasons for my conclusions but I will note the circumstances that I consider are aggravating factors of the offences, assessing the two offences together and taking into account all of the background, including what led to those other charges.   If you do plead guilty, following this sentence indication, and the sentencing proceeds, the reasons will obviously be fully explained to you at that point.

[33]     I will now comment on the factors that I consider are aggravating factors. I am doing this because I do not agree with some of the submissions Ms Pecotic has made about the aggravating factors – and you have already heard the discussion I had with Ms Pecotic.  Recording my assessment may assist in further discussions between you and Ms Pecotic. And I will note one of the matters that I did specifically discuss with Ms Pecotic, and that is that the submissions on your behalf in my assessment focus unduly on the charge of wounding.  It is entirely proper for Ms Pecotic to have given emphasis to the particular matters she did, which are concerned with the wounding, but you are also charged with kidnapping. As I said to Ms Pecotic, the kidnapping is where this all started in respect of events which took about five hours.  And the maximum penalty for kidnapping is the same as the maximum penalty for wounding

– 14 years.

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Andrews HC Whangarei CRI-2008-027-2686, 16 July

2009; R v Kihi and Brown HC Hamilton CRI-2008-019-166, 3 July 2009; R v Murray CA382/02,
6 May 2003; Taylor v R CA178/04, 22 November 2004; R v Charteris CA347/02, 25 February
2003; and R v Jackson HC Wanganui CRI-2006-083-1891, 7 February 2007.

[34]     The aggravating factors that I consider are significant, and without going into all the detail, are the following – and I am repeating now some of the things I have already said:

(a)      There was violence over an extended period – and according to the statement of facts, approximately five hours between 10:30 pm and

3:30 am. And I am aware of the fact that the summary of facts says that when the complainant, or victim, first got to the house he was not treated in the way that I am about to describe – and I think the word

‘civilly’ may be used in the summary of facts – notwithstanding the fact that he had just been kidnapped.   The violence was  not only the wounding when you shot the complainant through both hands, at the very end of the ordeal. You were a party to the violence inflicted over the preceding several hours. This included the stab, as I understand it, to the victim’s knee by your brother, for which you are jointly charged but with that charge against you to be withdrawn.  The summary of facts also records repeated assaults with an aluminium pipe and punching.  And that is part of all of these events in which you were closely involved.

(b)Second, there was substantial premeditation. Ms Pecotic submitted that the plan was not well thought out – that it was unsophisticated. I do not consider that that has any bearing on the extent of the premeditation that occurred.  The complainant victim was hiding with his father and had to be lured out to the car where he was then kidnapped.  He was then taken to an address, which must have been planned because it enabled the victim – and I will call him the victim – to be held, and assaulted over the next several hours.

(c)      Next is the extent of the harm.  Ms Pecotic submitted that the injuries are inherent in the charge. That is correct, up to a point. But there were the further injuries sustained which are not inherent in the specific charge of wounding.  In addition, there was other harm to the victim. The experience over the five hours for the victim must have been

terrifying with this ending with his being taken to the park blindfolded, being told that he would be shot either in the leg or the hand, and then being shot at twice by you before you shot him through both his hands.

(d)The fourth point is that weapons were used.  Ms Pecotic referred to your use of the pistol, and that plainly is the most lethal weapon used and it is very lethal.  But there was also the use of the scalpel and the use of the aluminium pipe. And you are implicated in all of this.

(e)      Fifth.  There were attacks to the victim’s head with the pipe as well as with fists.  Ms Pecotic submitted that the strikes to the head cannot be considered – and I quote – “cannot be considered to be at the upper echelon of offending” of this type.  She also submitted: “Had there not been the use of the pistol a less serious charge would have been appropriate in relation to the assault charges.” That may be correct, Mr Salt, as a theoretical proposition, but the reality is that a pistol was used, by you, preceded by the other violence I have described and including attacks to the head.

(f)      The next point is that violence was used as part of the overall objective of recovering $17,000 claimed to be owed by the victim’s father for a drug debt.

(g)And finally, there were multiple attackers.  Ms Pecotic did not in any direct way refer to this further seriously aggravating factor.

[35]     Ms Pecotic submitted on your behalf that the grievous bodily harm offence comes within what is called band 2 of a case called Taueki and that the starting point should be 8 to 9 years imprisonment.  She submitted that this should be increased by

12 months to take account of the other offence.  I note that there was also reference to charges you face in the District Court and both Ms Pecotic and the Crown, as I understand it, were submitting that these should be incorporated in this sentence indication.  I need to make clear that this sentence indication has nothing to do with the charges that you presently face in the District Court.

[36]     In terms of the overall approach, the Crown’s approach was different.  The Crown submitted that there should be a starting point assessed by taking account of all of the offending, and the circumstances relating to it.

[37]     Mr Salt, I know I have gone on a bit but this is important. You have asked for the sentence indication. I think it might assist you if you focus on this. I know family are here, and I understand that.  But this is serious.

[38]     The Crown submitted that there should be a starting point assessed by taking account of all of the offending and the circumstances relating to it and that this should result in an overall starting point of 11 years imprisonment; and that is to say, for the kidnapping as well as the wounding. That is the total.

[39]     If the assessment were to start only with the wounding, the aggravating factors relating to the offence, in my judgment, do put this offence in band 3 of Taueki, and that starts at 9 years imprisonment and goes up to the maximum of 14 years. If the offending is assessed overall, I consider that a global starting point for the two offences could be in excess of 11 years. I am nevertheless satisfied that the appropriate overall starting point should be 11 years imprisonment. What that means Mr Salt is that unless something else comes in which is seriously against you that will be the total sentence [sic – the total starting point].

[40]   Adjustments on sentencing need to be made for any relevant personal circumstances. As I noted towards the beginning, it is not possible to make any final assessment in that regard except on one point.   This relates to your previous convictions. I would not increase the sentence because of the Youth Court appearance for aggravated robbery or for any of the other offences. Any other adjustments, up or down, will have to be left to the sentencing and any further information that comes in.

[41]     The final matter Mr Salt is the credit for guilty pleas if you do plead guilty. Ms Pecotic submits that you should get the maximum of 25%. The Crown submits that it should be 20% because the plea would not have come in at the earliest reasonable opportunity.  I agree with the Crown’s submission on that.  Your plea of guilty will only have occurred after you have received a sentence indication.  All other matters

are now in front of you, including disclosure, and it is not suggested otherwise.  For that reason, in my judgment, the allowance for a guilty plea should not exceed 20%.

[42]     The only other matter I should note is that if you plead guilty you will also receive a first warning under s 86A of the Sentencing Act.

[43]     Mr Salt, the indication I have given you is for a limited period of time.  You are going to have to make a decision, essentially, by Wednesday of next week and appear in Court on Thursday.  So this sentence indication remains in force until 5:00 pm next Thursday, 25 May 2017.

[44]     You are further remanded therefore until 9:00 am next Thursday, 25 May 2017.

Woodhouse J