Salt v R
[2022] NZCA 611
•6 December 2022 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA176/2022 [2022] NZCA 611 |
| BETWEEN | TREMAYNE JORDAN SALT |
| AND | THE KING |
| Hearing: | 23 November 2022 |
Court: | Goddard, Woolford and Fitzgerald JJ |
Counsel: | E P Priest for Appellant |
Judgment: | 6 December 2022 at 10.00 am |
JUDGMENT OF THE COURT
AAn extension of time to appeal is granted.
BThe application to adduce fresh evidence is declined.
C The appeal is allowed.
DThe concurrent sentences of eight years and two months’ imprisonment on each charge are quashed and replaced with concurrent sentences of six years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
On 29 June 2017, Mr Salt was sentenced to eight years and two months’ imprisonment on charges of kidnapping and wounding with intent to cause grievous bodily harm.[1] He now appeals against the sentence, almost five years out of time. Leave is required.
Leave to appeal
[1]R v Salt [2017] NZHC 1467.
Mr Salt has filed an affidavit explaining the delay. He says the Judge gave him a small discount for personal factors, but overall he was unhappy with the sentence. He asked his lawyer about an appeal, but she told him there was no point in appealing as an appeal would not succeed.
It was only when he later spoke to other prisoners that he learnt that a cultural report may enable an otherwise appropriate sentence to be discounted when an offender’s background is said to have been a cause of their offending. He also recently found out that his age at the time he committed the crimes (21 years old) meant he may also be able to get a discount for that too.
This Court has regularly held that it will only entertain an appeal that is many years out of time in exceptional circumstances. That said, the merits of the appeal are likely to be determinative of a leave application in such circumstances. The Crown opposes leave for the same reasons that it opposes the appeal on the merits.
Factual background
Mr Salt was part of a street gang called Dope Money Sex (DMS), which was involved in serious criminal offending, including the supply of methamphetamine. Over a 12 month period, the victim’s father built up a substantial debt to the gang for methamphetamine allegedly supplied to him by Mr Salt’s older brother. Threats were made to the victim’s father and he and the victim went into hiding.
In an effort to secure repayment of the drug debt, Mr Salt and his brother decided to kidnap the victim and hold him against his will with threats to try and get his father to pay the debt paid owed by him. At around 10:30 pm on 10 July 2016, Mr Salt and his brother found out where the victim lived and lured him out of the house. Mr Salt was armed with a .22 calibre rifle. He pointed this at the victim, got him into a car and took him with others to a house where he was then effectively imprisoned. He was told he would be held until his father paid the debt and he would be shot with a pistol if he tried to run away. Mr Salt and his brother told the victim his father had until midnight to pay the debt. During that time, they made the victim periodically call his father and ask him to repay the debt. Mr Salt himself spoke to the victim’s father demanding the debt be paid.
During this time, Mr Salt and others took turns assaulting the victim by punching him to the head, chin, body and arms. The victim was also assaulted with an aluminium pipe, although this specific act was not attributed to any one person.
The assaults were sometimes timed so the victim’s father could hear them over the telephone. Mr Salt frequently threatened the victim during his detention that he was going to be shot. At one stage Mr Salt’s brother stabbed his right knee with a scalpel.
At around 3:30 am on 11 July 2016, Mr Salt blindfolded the victim with black tape. He was taken back into a car where he was made to sit alongside Mr Salt who was again armed with a pistol. During the car journey he was told that he would be killed if he spoke to the police and, before he was let go, he would be shot as a warning to his father. He was made to choose between being shot in his leg or his hands.
On arriving at a park, the victim was made to leave the car whereupon Mr Salt instructed him to hold out his hands. Standing about a metre from the victim, Mr Salt shot at the victim’s hands. He missed twice as the victim moved his hands when the shots were fired. A third shot hit the back of the victim’s right hand between the thumb and forefinger and exited through the palm of his hand. Because the victim had his hands together, the bullet travelled into the palm of his left hand where it remained lodged. The victim was left at the park. The victim required multiple surgeries on his hand, including to remove the bullet and is likely to have arthritis in his thumb for the rest of his life.
High Court sentencing
On 19 May 2017, at Mr Salt’s request, Woodhouse J gave him a sentence indication. The Judge identified the aggravating factors of the offending as follows:
(a)violence over an extended period;
(b)substantial pre-meditation;
(c)extent of harm to the victim;
(d)use of weapons — pistol, aluminium pipe and scalpel;
(e)attack to victim’s head with the pipe and with fists;
(f)violence used as part of overall objective of recovering a drug debt; and
(g)multiple attackers.
The Judge adopted a global starting point of 11 years’ imprisonment for the two offences, although he commented that it could be in excess of 11 years. The Judge said he would not increase Mr Salt’s sentence because of his previous convictions. He then fixed a discount of 20 per cent for Mr Salt’s pleas of guilty if he was to accept the sentence indication. Finally, the Judge commented that any further adjustment would have to be left for the sentencing when he would have much more information about Mr Salt’s background.
Mr Salt accepted the sentence indication and pleaded guilty. Sentencing took place on 29 June 2017. The Judge referred to the sentence indication as forming part of the sentence, to be attached to his sentencing notes.
The Judge referred to the information he had received about Mr Salt’s background. He had a pre-sentence report, a letter from his mother, Mr Salt’s own letter and a certificate from the Department of Corrections confirming Mr Salt’s attendance at a preliminary alcohol and drug support programme. The Judge then listed the matters which he was satisfied should be taken into account in Mr Salt’s favour to reduce the sentence that would otherwise be imposed:
(a)Youth — Mr Salt had just turned 21 at the time of the offences.
(b)Family circumstances — he had been brought up by his grandparents when he was younger, but thereafter was badly influenced by at least some of his older brothers. He had no real guidance from his father.
(c)Remorse — he had some genuine remorse for what he had done, beyond what was reflected in the guilty pleas and an understanding of the effect on the victim.
The Judge noted that the Sentencing Act 2002 required him to have regard to the above matters, but in his judgment the reduction could not be large in relation to the total sentence “when these positive matters are weighed against the gravity of what [Mr Salt] did”.[2] Also, the Judge said that although he would not increase the sentence because of Mr Salt’s previous offending, the previous offending nonetheless did weigh against the positive considerations. The Judge concluded: “Putting that in simple terms, I cannot look at all the good things and just ignore a long period of bad things”.[3]
[2]R v Salt, above n 1, at [17].
[3]At [17].
In the end, the Judge gave Mr Salt a discount of nine months for a combination of youth, family circumstances and remorse. That brought the starting point down to 10 years and three months’ imprisonment before the previously indicated discount of 20 per cent for Mr Salt’s guilty pleas. The end sentence imposed on Mr Salt was therefore eight years and two months’ imprisonment on each charge, to be served concurrently.
Application to adduce fresh evidence
Mr Salt seeks leave to admit fresh evidence on appeal in the form of a cultural report pursuant to s 27 of the Sentencing Act by Elynn ‘Atiola and Semisi Pohiva of Tuitala Law Ltd. Counsel for Mr Salt, Ms Priest, acknowledges that s 27 reports should not generally be produced for the first time on appeal. Section 335 of the Criminal Procedure Act 2011 does, however, allow new evidence to be presented on appeal if it is necessary or expedient in the interests of justice. New evidence will need to be credible and fresh, but the overriding criteria is the interests of justice. Counsel submits that as such an appellate court can allow the admission of s 27 reports on appeal and can substitute sentences when a report is clearly relevant to culpability.
Approach on appeal
Mr Salt appeals his sentence under s 244 of the Criminal Procedure Act. Section 250(2) provides that the Court must allow the appeal only if satisfied that there was an error in the sentence and a different sentence should be imposed. Although s 250(2) makes no express reference to the concept of a manifestly excessive sentence, this concept is long-standing, is consistent with the statutory language in s 250(2) and continues to be utilised when considering s 250(2).[4] This Court has emphasised that the focus is on the correctness of the end sentence, not the process by which the sentence was reached.[5]
Submissions
[4]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
[5]At [36].
Mr Salt does not take issue with the starting point of 11 years’ imprisonment adopted by the Judge, nor with the discount of 20 per cent for Mr Salt’s guilty pleas. The sole issue is whether the deduction of nine months’ imprisonment (or 6.8 per cent) was sufficient to reflect the three mitigating factors identified by the Judge of youth, family circumstances and remorse.
Ms Priest submits the discount for personal factors should instead total
30–35 per cent, comprised as follows:(a)10 per cent discount for youth;
(b)15–20 per cent discount for factors identified in the s 27 report, including Mr Salt’s addiction and rehabilitative potential; and
(c)five per cent for Mr Salt’s remorse.
Ms Priest submits that these discounts were justified based on the material before the sentencing Judge, and the appropriateness of these discounts was confirmed by the s 27 report that Mr Salt sought to adduce as fresh evidence on appeal.
Ms Hamill, counsel for the Crown, submits that the Judge was correct to temper the quantum of discount by reference to the gravity of the offending and Mr Salt’s criminal history. She submits that in assessing the available discount for mitigation against the overall circumstances of the case and Mr Salt’s background, the Judge did not err. The discount he fixed was appropriate in the circumstances.
The Crown says that the s 27 report should not be received as further evidence on appeal. It is not fresh. Nor is it cogent: it simply fleshes out, with more detail, the information that was before the sentencing Judge contained in the pre-sentence report and in a letter from Ms Salt’s mother.
Should the s 27 report be received as fresh evidence?
On a number of occasions this Court has said that generally s 27 reports should not be submitted for the first time on appeal.[6]
[6] Simcic v R [2022] NZCA 592 at [43]; and Laipato v R [2021] NZCA 562 at [13], citing Carroll v R [2019] NZCA 172 at [8] and Clarke v R [2021] NZCA 96 at [14].
However, if the information in a s 27 report is cogent then we accept sometimes it will be appropriate for it to be considered by a court on appeal.[7]
[7]Laipato v R, above n 6, at [16].
In this case there was substantial information about Mr Salt’s background and family circumstances available to the sentencing Judge in the pre-sentence report and in the letter from Mr Salt’s mother.
The pre-sentence report noted that Mr Salt was a heavy user of methamphetamine at the time of the offending and if he was “straight” would not have done “all of this”. He had no structure in his life and was in a “dark place”. He got expelled from school in Year 9 and had never had a job. Once he was expelled, he gravitated to anti-social peers. Mr Salt felt sorry for the victim and was willing to participate in restorative justice if the victim was willing to do so. He also acknowledged the need for drug rehabilitation.
Mr Salt’s mother advised the Court by way of a letter that Mr Salt was the seventh of her nine children. He was the youngest son. Mr Salt was initially raised by his grandparents. Problems started when his grandfather died when he was five years old. Mr Salt found it hard when he went to live with her, and he looked up to his older brothers as role models as his father was never a real presence in the children’s lives.
Mr Salt’s mother advised the Court that three of Mr Salt’s brothers have been incarcerated and one of his older brothers was a co-offender. Mr Salt’s use of methamphetamine was also highlighted by his mother. She said she felt as if she has failed Mr Salt and society and wished she could turn back time and be given another chance to guide him and love him.
We agree with Crown counsel that there is substantial overlap between the s 27 report and the information contained in the pre-sentence report and in the letter from Mr Salt’s mother. The s 27 report gives more detail and context to some of the themes covered by the other documents such as the poverty faced by the family, and that Mr Salt’s disruptive behaviour at school (which resulted in reduced educational opportunity) was to some extent because of a lack of food at home. The fact of Mr Salt’s poor educational outcome and the changing dynamics and challenges of his family life were, however, before the Judge.
As the Crown acknowledges, the use of severe physical discipline and Mr Salt’s cultural disconnect were factors that were not explicitly identified in the material available at sentencing. But the clearest factors contributing to Mr Salt’s offending that are discernible from the s 27 report are Mr Salt’s family dynamics, the influence of his older brothers and his methamphetamine use at the time. These were matters explicitly identified by the Judge at sentencing. Likewise, Mr Salt’s motivation to rehabilitate was also before the Judge at sentencing.
In those circumstances, we consider the s 27 report should not be admitted as fresh evidence. As Ms Priest very properly accepted in the course of argument, much of the information in it was already before the Judge, albeit not articulated in the most helpful way to identify its relevance to culpability. This Court has the benefit of Ms Priest’s submissions articulating the causal link between Mr Salt’s background and the offending; further evidence is not required for that purpose. The application to adduce fresh evidence is therefore declined.
We go on to consider whether, by reference to the material that was before the sentencing Judge, there was a material error in the sentence imposed.
Discussion
Youth
The Crown notes that the Judge did identify Mr Salt’s relative youth as a mitigating factor and submits the Judge did not err in assessing it together with Mr Salt’s general personal circumstances. It further submits that a discrete discount for youth was not required in the circumstances of this case.
The extent to which Mr Salt’s youth formed part of the overall 6.8 per cent discount for personal factors is, however, not clear. In our view, it would have been preferable for a discrete discount for youth to have been separately identified.
Churchward v R[8] and subsequent cases recognise the relevance of youth, noting that young people are more vulnerable to external pressures, negative influences and may act more impulsively than adults. Young persons may fail to appreciate the full gravity of the offending, while at the same time knowing that it is wrong. Further, the effect of imprisonment on young persons may be crushing, especially long sentences. Lastly, young people have greater capacity for rehabilitation.
[8]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[79].
This was premediated offending over an extended period of more than five hours, not impulsive conduct in response to unfolding circumstances as in Diaz v R.[9] But we accept that Mr Salt was acting under the influence of his older brother, and the street gang he had become involved with through his brothers’ influence. His relative youth made him susceptible to external pressures and anti‑social peers, particularly in the context of his upbringing and his family circumstances following the death of his grandfather.
[9]Diaz v R [2021] NZCA 426.
In those circumstances, we accept Ms Priest’s submission that a youth discount of 10 per cent would have been appropriate, particularly when taking into account the length of the term of imprisonment Mr Salt was facing.
Family circumstances
The Judge’s overall discount of 6.8 per cent was described as including an allowance for Mr Salt’s family circumstances, including his addiction to methamphetamine. We have already concluded that an allowance of 10 per cent for Mr Salt’s youth would have been appropriate. What additional allowance should have been made for his family circumstances?
In Zhang v R,[10] this Court recognised that a number of mitigating considerations arose in relation to addiction. It considered that addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending. The Court cautioned, however, that any such discount should be based on persuasive evidence as opposed to mere
self-reporting.[11] Here, Mr Salt has reported an addiction. His addiction is confirmed by both the pre-sentence report and his mother. The nature of the offending — a kidnapping and wounding with intent to cause grievous bodily harm for the purpose of recovering a drug debt owed to the gang that Mr Salt was involved with, and from which he was obtaining drugs — took place in the context of that addiction, and the pressures to which it gave rise. Mr Salt explains that the victim’s friend contacted Mr Salt to get some methamphetamine. Once he met with her, she told him where the victim was, and said she would take him to the victim in exchange for some drugs. Mr Salt says he was not planning on kidnapping the victim until all of this unfolded.[10]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[11]At [148]–[149].
Mr Salt’s introduction to methamphetamine was at an early age of 15 or 16 years through the influence of his older brothers. Apart from addiction, other factors which contributed to the offending were exposure to physical abuse, poverty, neglect and cultural disconnect. In this case, we consider that an appropriate discount for Mr Salt’s family circumstances, including his addiction to methamphetamine, would be 10 per cent.
Remorse
The sentencing Judge accepted Mr Salt was remorseful. He stated:[12]
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.
[12]R v Salt, above n 1, at [16].
Where there is tangible evidence of genuine remorse, a discount of five to eight per cent may be appropriate.[13] Should there be a further discount for remorse, in addition to youth and family circumstances, in this case?
[13]McArthur v R [2013] NZCA 600 at [13]–[14]; and Rowles v R [2016] NZCA 208 at [18].
Mr Salt felt very sorry for the victim and was willing to participate in restorative justice with him if he wished to do so. He acknowledged his need to take part in rehabilitation programmes and had voluntarily participated prior to sentence in a Department of Corrections preliminary alcohol and other drug support programmes. The Judge accepted that Mr Salt was remorseful beyond the remorse inherent in his guilty pleas. In those circumstances, a separate discount of five per cent for remorse was appropriate.
Overall discount for mitigating factors
The Judge acknowledged that the Sentencing Act required him to have regard to mitigating factors, but said the reduction could not be a large one because of the gravity of the offending. However, the gravity of the offending should already be reflected in the starting point adopted. The Judge’s approach of denying otherwise appropriate discounts for mitigating factors because of the seriousness of the offending risks an element of double counting.
This Court has acknowledged the possibility that the seriousness of the offending might temper any discount given for personal factors.[14]
[14]Carr v R [2020] NZCA 357 at [65]; Ross v R [2014] NZCA 272 at [24]; and R v Gordon [2009] NZCA 145 at [49].
However, the Court has applied relatively substantial discounts for personal factors, even in cases of murder and other serious offending.[15] In Orchard v R, this Court held (in the context of a discount for mental health) that discounts for mitigating factors should only be reduced or refused if full mitigation would not properly give effect to the principles of sentencing set out in the Sentencing Act.[16]
[15]Waikato-Tuhega v R [2021] NZCA 503 at [47]; citing R v Rakuraku [2014] NZHC 3270; R v Nepia [2019] NZHC 1932; R v Beattie [2019] NZHC 3108; R v MacDonald [2021] NZHC 224; Waho v R [2020] NZCA 526 and Taiapa v R [2020] NZHC 3355.
[16]Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [50]–[51].
Crown counsel points to the case of Tahuri v R[17] as illustrative of the principle, adopted by the Judge in this case, that discounts for mitigation cannot be assessed in a vacuum. As such it provides a useful comparison, according to the Crown.
[17]Tahuri v R [2013] NZCA 254.
Mr Tahuri and his neighbour were associated with rival gangs. When an argument ensued between them, Mr Tahuri retrieved a shotgun and fired two shots at the neighbour’s house injuring one of the occupants. The injury was to the shoulder and consistent with being close-range. The victim required surgeries and had on-going pain. A starting point of 11 years’ imprisonment was adopted in that case followed by a discount of 18 months for youth (21 years old) and rehabilitation prospects. Mr Tahuri had relatively minor previous convictions that did not justify any increase.
The Crown notes that the Court in Tahuri observed those factors “might in some circumstances justify a somewhat larger discount”.[18] However, the Court held that “any credit for youth and previous good character cannot be assessed in a vacuum”.[19] It pointed to the gravity of Mr Tahuri’s offending and “overtones of gang tensions” as relevant to the assessment of the appropriate discount.[20] Together with an absence of remorse in that case, these factors justified the quantum of discount and this Court found no error.
[18]At [42].
[19]At [43].
[20]At [43].
We agree with Crown counsel that direct comparison of the quantum of discount provides only limited assistance, but in Tahuri the sentencing Judge gave twice the discount given in this case (18 months versus nine months) just for Mr Tahuri’s youth and the importance of promoting rehabilitation in young offenders. The pre-sentence report indicated that Mr Tahuri denied he was guilty of the offence and expressed no remorse for the injuries suffered by the victim. He took no responsibility for the offending and was assessed as being of high risk of re-offending.
The Court in Tahuri nonetheless found that whilst the extent of the discount in that case of 18 months for youth with any addition for previous good character may be at the low end of an appropriate range, it was by no means out of the range.[21]
[21]At [44].
In this case, we have concluded that discounts totalling 25 per cent were appropriate to reflect mitigating circumstances personal to Mr Salt. That would be added to the 20 per cent discount for a guilty plea. We do not consider that this is a case in which otherwise appropriate discounts should not be taken into account in sentencing. Applying a 45 per cent discount to the starting point of 11 years’ imprisonment would result in an end sentence of six years’ imprisonment.
Standing back, and considering all the circumstances of the offending and the offender, we consider that this is an appropriate sentence. The offending was serious. It had a significant impact on the victim: it caused terror, injury and pain at the time and has had significant long term health consequences. A substantial term of imprisonment is required. But that term of imprisonment needs to reflect the mitigating factors that reduce Mr Salt’s culpability, and suggest a real prospect of rehabilitation. A sentence of six years’ imprisonment strikes that balance.
An extension of time should be granted and the appeal allowed
It follows that the appeal has real merit. An appropriate approach to mitigating factors would result in a material reduction in Mr Salt’s sentence from eight years and two months’ imprisonment to six years’ imprisonment. In those circumstances it is in the interests of justice to grant an extension of time to bring the appeal, and to allow the appeal.
Result
An extension of time to appeal is granted.
The application to adduce fresh evidence is declined.
The appeal is allowed.
The concurrent sentences of eight years and two months’ imprisonment on each of the two charges are quashed and replaced with concurrent sentences of six years’ imprisonment on each charge.
Solicitors:
Crown Law Office, Wellington for Respondent
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