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 ground. But the violence was not life-threatening or extreme. A starting point of three years was adopted, being the minimum starting point for Band 1, with the Judge considering he was “being as generous as [he could] to the defendant”.9 An uplift of four months was applied to recognise the theft charge, bringing the sentence to three years and four months’ imprisonment.

[6]    The Judge allowed a three-month discount (approximately 8 per cent) for   Mr Salamo’s relative youth but declined to give a discount for previous good character. Finally, the Judge allowed a 20 per cent discount for Mr Salamo’s guilty plea, which he described as “generous” given the guilty plea came four months after Mr Salamo’s first appearance. This brought the end sentence to two years and six months’ imprisonment.

Approach to appeals against sentence

[7]    I must allow the appeal only if satisfied there is an error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 The approach previously taken by courts on sentencing appeals continues to apply,12 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.13 I will not intervene where the sentence is within the range that can properly be justified by accepted

8      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

9      Police v Salamo, above n 1, at [11].

10     Criminal Procedure Act 2011, s 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

13     At [33] and [35].

sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14

Issues on appeal

[8]    Mr Salamo’s counsel, Anoushka Bloem, says the starting point of three years’ imprisonment was manifestly excessive. She also says further information not available at the time of sentencing would have attracted additional discounts resulting in a lower end sentence and the eligibility of Mr Salamo for home detention.

Further evidence

[9]    Leave is sought to adduce the evidence said to justify those additional discounts.15 I may grant leave if the interests of justice favour admission of new evidence on appeal.16 If the evidence is both fresh and credible, generally it should be admitted.17

[10]   Mrs Bloem says, at the time of sentencing, Mr Salamo was not made aware of the possibility of obtaining either a cultural background report or character references. He and his former girlfriend say his counsel advised against writing a remorse letter as the victim did not want to receive one. While I would prefer confirmation directly from sentencing counsel, which it is their obligation to give,18 that may explain why the evidence then was unavailable.

[11]   The evidence is credible. Moreover, it is in the interests of justice it be admitted; that is the “overriding criterion”.19 Evidence of cultural background, remorse and previous good character all are mandatory sentencing considerations.20 While cultural background reports “should not be produced for the first time on

14     Ripia v R [2011] NZCA 101 at [15].

15     High Court Rules 2016, r 20.16(2).

16     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007)

23 CRNZ 71 at [34].

17     Lundy v R, above n 16, at [120].

18     Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.7.

19     Lundy v R, above n 16, at [117].

20     Sentencing Act 2002, ss 8(i), 9(2)(f), and 9(2)(g).

appeal”,21 the Crown does not oppose its admission. With some misgivings about belated provision, I grant leave to adduce the evidence in question.

Discussion

—starting point

[12]   Taueki remains the guideline judgment for sentences on the present violence charge.22 Its three sentencing bands each are determined by the seriousness of the offending, based on the number of aggravating factors present. They have to be “scaled down to the extent necessary to reflect the lesser charge” of injuring with intent to cause grievous bodily harm.23

[13]   Band One is “appropriate for offending involving violence at the lower end of the spectrum”, rather than extreme violence or life-threatening violence.24 Offending falling within this band warrants a starting point of between three to six years. The Court of Appeal gave the example of an impulsive street attack, where the harm caused does not have a lasting effect, justifying a starting point at the lower end of Band One. If the attack featured a number of attackers against a single victim, “a starting point of around five years may well be appropriate”.25

[14]   From that perspective, given the aggravating features present, the Judge’s three-year starting point is unassailable. Mr Salamo engaged with his brother in unprovoked violence on a stranger, his guilty plea negating any suggestion of self- defence. They assaulted the victim’s head, leaving him unconscious. The assault was sustained, continuing when the victim was vulnerable on the ground and despite a witness’ intervention.

[15]   Although Pokaia v Police referred to by Mrs Bloem bears comparable features, resulting in a two-year starting point,26 the charge there carried a five-year maximum

21     Carroll v R [2019] NZCA 172 at [8].

22     R v Taueki, above n 8.

23     Lufe v R [2018] NZCA 327 at [12]; see also R v Taueki, above n 8, at [9]; and R v Brown [2009] NZCA 288 at [13]–[15].

24     R v Taueki, above n 8, at [36].

25     At [37(a)].

26     Pokaia v Police [2015] NZHC 1718 at [12].

penalty, to be compared with the ten-year maximum on Mr Salamo’s charge. The four- year starting point adopted for that charge in Rapana v Police, characterised as “an unprovoked assault on a man who was repeatedly kicked by two people having first been beaten to the ground”,27 affirms the Judge’s position, his lower starting point being justified by the absence of ongoing injury to the victim here. Under Taueki, “only in exceptional cases” will a starting point of less than three years’ imprisonment be appropriate.28 Even ‘scaled down’, the Judge’s three-year starting point (uplifted by four months to reflect the theft charge) is well within range. There is no exceptionality about Mr Salamo’s offending.

—discounts for personal circumstances

[16]     Mrs Bloem proposes a 20 per cent discount “to recognise the contribution of [Mr Salamo’s] cultural circumstances to his offending”, and a further 10 per cent discount for Mr Salamo’s “genuine efforts at rehabilitation and his remorse”.

[17]   The cultural background report is written by Louise Henare, who interviewed Mr Salamo on 13 July 2019. The report records Mr Salamo’s Niuean and Samoan heritage, from which he feels disconnected. He was heavily disciplined as a child, which Ms Henare says is consistent (to some extent) with Pasifika culture and his parents’ religious views.29 Ms Henare considers Mr Salamo and his brother to be protective of and heavily reliant on each other for emotional support, given their shared history. Despite the strict nature of his upbringing, his parents appear to have supported him in both his educational and sporting pursuits, ensuring he had “a structured routine”. Mr Salamo moved to Australia, where he was homeless for some time. He has been diagnosed with depression. Ms Henare ultimately identifies nearly 20 issues which she says may have contributed to Mr Salamo’s offending.30

27 Rapana v Police [2014] NZCA 231 at [7].

28 R v Taueki, above n 8, at [27].

29 The incidents noted in the report include being hit with a wooden spoon, struck with a vacuum bar and being struck by his father. His brother records the same and notes an incident where both himself and Mr Salamo were hit repeatedly by a cousin.

30 These are: intergenerational physical violence, excessive physical punishment, emotional abuse, victim of sexual assault, unresolved anger issues, disconnect from wider family unit, feeling of high obligation due to strong religious beliefs, earlier transient upbringing, education issues, early poverty issues, recent homelessness, alcohol-related issues, drug-related issues, lack of cultural identity, racism, depression and a history of anxiety, potential mental development issues, protective siblings due to upbringing, and fear of home life.

[18]   I accept elements of systemic deprivation are present in Mr Salamo’s life. But I cannot discern the necessary linkage,31 here between physical discipline within the family environment, and the brothers’ attack on an intervening stranger. In any event, any available discount here would be reduced by the seriousness of the offending.32

[19]   Also, to warrant a discount, remorse must be real and tangible. Mr Salamo profusely apologises to the victim in his letter of remorse, dated 11 November 2019. He seems to appreciate the effect of his actions on both the victim and the victim’s family. Similarly, Mr Salamo’s church leader says Mr Salamo “was tired of making bad decisions, blaming others and was ready to take full responsibility”.

[20]   This does stand in stark contrast to Mr Salamo’s behaviour around the time of sentencing. Mr Salamo disregarded two requests he attend a pre-sentence interview. When he did attend, the probation officer found him “nonchalant”. The pre-sentence report records Mr Salamo displayed no remorse, failed to take any responsibility for his actions, and placed the blame on the victim. He asked “[i]f I do restorative justice, will this all go away?” Mrs Bloem explains that Mr Salamo’s expectations were likely not of a custodial sentence at that time, and his responses need to be seen in that light. At the time his offer to write a letter of remorse to the victim, even if rejected by his counsel, came only the day before sentencing in June 2019, despite having pleaded guilty five months earlier. Mr Salamo’s prior counsel (not appearing at sentencing) denies he told Mr Salamo a remorse letter would not be accepted by the victim. There is insufficient evidence of genuine remorse at the time of sentencing justifying discount. What is now said I perceive as very much incentivised by Mr Salamo’s subsequent experience.

[21]   For similar reasons I am not prepared to give a discount for prospects of rehabilitation. Mr Salamo still is young, and his preliminary efforts at rehabilitation are commendable: he is attending weekly appointments with a prison counsellor and has enrolled in a numeracy and literacy programme while in prison. The various character references supplied say he is “hardworking” and “caring”. But his prior counsel says Mr Salamo “had no interest” in any anger management programmes. His

31     Arona v R [2018] NZCA 427 at [59].

32     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [57].

comments recorded in the pre-sentence report, particularly in relation to participating in restorative justice, were self-serving. While his apparent change in attitude is very commendable, a discrete discount for rehabilitation was not available. The three- month discount for age acknowledges his greater prospect for rehabilitation, which appears to be being made out.

[22]   No issue is taken with the remaining discounts applied by the Judge. The three- month discount brought the sentence to 37 months’ imprisonment. A 20 per cent discount was given for Mr Salamo’s guilty plea, bringing the end sentence to two years and six months’ imprisonment. Mr Salamo pleaded guilty four months after his first appearance, and there is no suggestion there was any dispute over the charge itself or the facts of the offending. Any modest discount available for prospects of rehabilitation again is offset by the generosity of the guilty plea discount.

[23]   The Judge thus did not err in imposing an end sentence of two years and six months’ imprisonment. It was not manifestly excessive.

Result

[24]The appeal is dismissed.

—Jagose J