Salamo v Police - [2019] NZHC 3074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-273

[2019] NZHC 3074

BETWEEN
RUBEN SALAMO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing: 25 November 2019

Appearances:

A S Bloem for the appellant M M Moon for the respondent

Date of judgment:

25 November 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:
Bloem & Associates, Auckland Meredith Connell, Auckland

SALAMO v NEW ZEALAND POLICE [2019] NZHC 3074 [25 November 2019]

[1] Ruben Salamo appeals his sentence of two years and six months’ imprisonment imposed by Judge B A Gibson in the District Court at Auckland on 7 June 2019,1 following Mr Salamo’s guilty plea to charges of injuring with intent to cause grievous bodily harm,2 and theft (over $1000).3

Background

—offending

[2] Around 2.00 am on Sunday, 2 September 2018, Mr Salamo and his brother were chasing an unknown man in Aotea Square. The victim intervened. The brothers turned instead on the victim, repeatedly punching and kicking him to the ground, rendering him unconscious. A witness threw herself on the victim in an effort to protect him. Undeterred, the brothers continued their assault, and Mr Salamo’s brother removed the victim’s cellphone and wallet, before they left him on the ground. The victim sustained a concussion and other head injuries, as well as extensive facial bruising and swelling.

[3] On 3 October 2018, police executed a search warrant at an address in Henderson. The victim’s cell phone was found in Mr Salamo’s luggage. When spoken to by police, Mr Salamo said the attack was self-defence but admitted having taken the phone from his brother. A first-strike warning was given on conviction.4

—District Court decision

[4] The Judge characterised Mr Salamo’s offending as a “a piece of mindless thuggery”.5 He described Mr Salamo (who was 21 at the time) as a young man, but distinguished him from a “youth”.6 The Judge turned to consider the contents of Mr Salamo’s pre-sentence report, noting its contents did Mr Salamo “no favours”.7 It referred to Mr Salamo’s attitude as nonchalant, showing both absence of remorse and

1      Police v Salamo [2019] NZDC 10942.
2      Crimes Act 1961, s 189(1). Maximum penalty is 10 years’ imprisonment.
3      Sections 219 and 223(b). Maximum penalty is seven years’ imprisonment.
4      Minute of Judge R J Collins, 12 February 2019.
5      Police v Salamo, above n 1, at [5].
6 At [5].
7 At [5].

failure to take responsibility for his actions. While Mr Salamo had no previous convictions in New Zealand, he was charged with low-level nuisance offences in Australia on which he was fined or charged with a good behaviour bond.

[5] Following the orthodox sentencing process for offending involving serious violence, the Judge placed Mr Salamo’s offending within Band 1 of Taueki.8 The following aggravating features were identified: an attack to the head; the fact the complainant was unconscious; the presence of two attackers; and the vulnerability of the victim once he was on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 3074
Decision Date: 25 November 2019

CaseChat Overview and Summary

Ruben Salamo appeals the two-year-and-six-month-imprisonment sentence imposed on him by Judge B A Gibson in the Auckland District Court following his guilty plea to charges of injuring with intent to cause grievous bodily harm and theft. The appeal was heard by Judge Jagose in the High Court at Auckland on 25 November 2019. The main issues for determination were whether the starting point of three years was manifestly excessive, and whether further discounts could have been applied on the basis of new evidence. The starting point was held to be appropriate and the new evidence, while credible, was not sufficient to justify additional discounts. The appeal was dismissed. The Court found that the starting point of three years was well within the range of acceptable sentences for the type of violence involved in the offending. The new evidence about Mr Salamo’s cultural background, efforts at rehabilitation and remorse was not sufficient to warrant additional discounts as the evidence of genuine remorse was not available at the time of sentencing and his previous behaviour did not indicate a genuine change of heart.

Orders