Salt v The King
[2023] NZCA 404
•29 August 2023 at 11am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA683/2022 [2023] NZCA 404 |
| BETWEEN | HESTON SALT |
| AND | THE KING |
| Hearing: | 18 July 2023 |
Court: | Gilbert, Lang and Woolford JJ |
Counsel: | E P Priest for Appellant |
Judgment: | 29 August 2023 at 11am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Mr Salt pleaded guilty to three charges of wounding with intent to cause grievous bodily harm. Venning J sentenced him to eight years and four months’ imprisonment, constructed as follows:[1]
(a)adopting a starting point of 11 years’ imprisonment;
(b)applying an uplift of six months for offending while subject to release conditions;
(c)allowing a discount of 10 per cent for Mr Salt’s disadvantaged background and cultural disconnection; and
(d)allowing a discount of 17.5 per cent for his guilty pleas.
[1]R v Salt [2022] NZHC 3007 [Sentencing notes].
Mr Salt appeals against his sentence. He contends the overall sentence was manifestly excessive for four reasons:
(a)the starting point was manifestly excessive and should have been in the range of seven to eight years;
(b)the discount for personal mitigating factors was inadequate and should have been 20 per cent;
(c)a full discount of 25 per cent ought to have been allowed for the guilty pleas in all the circumstances; and
(d)a discount of five per cent ought to have been allowed for remorse.
The facts
At around 7.30 am on 29 February 2020, Mr Salt and three unknown associates drove to an address in Mt Roskill in Mr Salt’s car. The driver remained in the car outside the address. Mr Salt and the other two offenders entered the house through the laundry door. Mr Salt was not armed but the other two were, one with a 12-gauge shotgun and the other with a .22 calibre rifle. Both firearms were loaded.
The Eliu family have lived at the house for nearly 30 years. Living there at the time were nine family members — Mr and Mrs Eliu, their two adult daughters, their partners (Messrs Finau and Vea) and three grandchildren. However, one of the daughters and two of the grandchildren happened to be away from the house at the time of the offending.
When Mr Finau saw Mr Salt and his associates enter the house through the laundry, he told his partner, who was heavily pregnant, to hide in the bedroom cupboard. One of Mr Salt’s associates approached Mr Finau and shot him with the .22 calibre rifle. The bullet penetrated Mr Finau’s’ right eye and lodged in his brain. This offender then fired again, with the bullet lodging in the door jamb of Mr Finau’s room. Mr Finau suffered serious injuries to his eye and left ear, with the largest metal fragments lying in his left middle ear cavity. Mr Finau has permanently lost vision in his right eye.
Mr and Mrs Eliu were in the adjacent bedroom. After hearing the first shot, Mr Eliu came out of his room and the same offender shot him through his right collar bone with the .22 calibre rifle. The bullet exited out the rear of his shoulder.
Hearing the shots, Mr Vea came out of his bedroom and walked into the laundry area. As he did so, he was shot in his upper left arm by the other offender with the shotgun. Mr Vea sustained a central wound to his left bicep with multiple pellet wounds surrounding it, causing loss of sensation below the left elbow joint.
Was the starting point too high?
The Judge considered the aggravating features of the offending were that this was a targeted home invasion involving multiple offenders and three victims, firearms were used, and serious injuries were inflicted, particularly to Mr Finau. Taking account of these factors, and given there were three offences, the Judge considered the case fell within the most serious of cases of wounding with intent to cause grievous bodily harm. On that basis, an appropriate starting point for the shooters would have to be close to the maximum penalty of 14 years’ imprisonment.[2]
[2]At [12].
The Judge accepted that Mr Salt had less culpability because he was not one of the shooters.[3] The Judge considered that a reduced starting point of 11 years’ imprisonment was appropriate to recognise this.[4]
[3]At [13].
[4]At [15].
Ms Priest, for Mr Salt, accepts that the offending by the shooters comes within band 3 of R v Taueki, for which a starting point somewhere in the range of nine to 14 years is indicated.[5] However, she submits that a starting point of 14 years could not be justified for the principal offenders. She drew our attention to 10 other cases where starting points ranging from eight to 13 years’ imprisonment were adopted. She submitted that these cases support her contention that an appropriate starting point for the shooters in the present case would have been 11 years’ imprisonment.
[5]R v Taueki [2005] 3 NZLR 372 (CA) at [34(c)].
Working from that proposed starting point for the shooters, Ms Priest submitted that a reduced starting point of seven to eight years’ imprisonment would appropriately reflect Mr Salt’s lesser role and culpability. She observed that s 9(2)(d) of the Sentencing Act 2002 requires the court to take account as a mitigating factor where the offender had little involvement in the offence. She notes that the Judge accepted Mr Salt’s culpability was lower than that of the shooters. She submitted that this Court’s decisions in Keil v R and R v Kara support her submission that Mr Salt’s lesser role should have been met by a starting point of seven to eight years.[6]
[6] Keil v R [2017] NZCA 563; and R v Kara [2007] NZCA 189.
In our assessment, this was extremely serious offending of its type involving numerous aggravating features:
(a)Premeditation.
(b)Home invasion in the early hours of the morning when family members including children were likely to be, and were, present.
(c)Multiple offenders, two of whom were armed with loaded firearms.
(d)The use of firearms, targeting the head and upper body.
(e)There were three victims, all of whom were shot.
(f)The serious nature of the injuries inflicted on all three victims, particularly to Mr Finau.
Given these factors, including the fact there were three separate offences, it is hard to argue with the Judge’s assessment that a sentence at or near the top of band 3 in Taueki would be warranted for the shooters. It is fortuitous that no one was killed. We do not accept that an 11-year starting point, below the middle of the band, would be an adequate response for the shooters in all the circumstances.
Of the 10 decisions referred to by Ms Priest, seven were lower court sentencing decisions, six in the High Court and one in the District Court. Only three were decisions of this Court. As a preliminary observation, it is not generally helpful on sentence appeals to this Court to cite large numbers of lower court sentencing decisions. The purpose of guideline judgments is to avoid the need for this.[7] It is usually more helpful to return to the guideline judgment when considering whether a particular sentence is outside the appropriate range rather than to numerous other cases which have sought to apply those guidelines.
[7]See R v Taueki, above n 5, at [10]–[11].
The three decisions of this Court relied on by Ms Priest to support her contention that an 11-year starting point would have been appropriate for the shooters were Tahuri v R, Griffin v R and Jefferies-Smith v R.[8]
[8]Tahuri v R [2013] NZCA 254; Griffin v R [2019] NZCA 422; and Jefferies-Smith v R [2020] NZCA 315.
Mr Tahuri became involved in an argument with his neighbour, who had rival gang affiliations. A short time later, Mr Tahuri appeared in his neighbour’s driveway having armed himself with a shotgun. He fired two shots in quick succession towards the house, wounding one of the occupants. The victim sustained a serious injury to his shoulder.[9] Rodney Hansen J adopted an 11-year starting point for Mr Tahuri, who was aged 21 at the time of sentencing. This starting point was not challenged on appeal. The argument on appeal was whether the overall discount for Mr Tahuri’s youth and previous good character was adequate.[10]
[9]Tahuri v R, above n 8, at [2]–[4].
[10]At [39]–[41].
It seems to us that Mr Tahuri’s offending was significantly less serious than that of the shooters in the present case. If anything, we see this case as supporting the Judge’s view that a 14 year starting point would have been appropriate.
Griffin is also distinguishable. That case concerned an armed robbery at a rural residential address that went badly wrong. One of Mr Griffin’s two co-offenders fatally shot the victim and was found guilty of murder. Mr Griffin brought three firearms and ammunition to the scene, and he was also the driver. He was not armed but he knew the firearm was to be used in the robbery and that it was loaded. He was found guilty of manslaughter. All three offenders were found guilty of aggravated robbery.[11] The principal offender was sentenced to life imprisonment with a minimum period of imprisonment of 17 years and a concurrent sentence of nine years for aggravated robbery.[12] After adopting a starting point of 12 years’ imprisonment, Katz J sentenced Mr Griffin to 10 years and nine months’ imprisonment for manslaughter with a concurrent sentence of eight years and six months for aggravated robbery. Due to his prior convictions under the three strikes legislation, he was required to serve the full term of his sentence.[13] Because Griffin was a case of manslaughter, this Court’s guideline judgment in Taueki was only relevant by way of comparison or cross-check and indicated that the 12-year starting point was within range.
[11]Griffin v R, above n 8, at [1]–[6].
[12]At [7].
[13]At [9] and [11].
It can be seen that Griffin does not support Ms Priest’s submission that an 11‑year starting point would have been appropriate for the shooters in the present case. Mr Griffin was not armed with a gun and nor was he a shooter. The starting point of 12 years for him rather suggests that the starting point of 11 years for Mr Salt is within range.
Jefferies-Smith was also a manslaughter case. The circumstances were not comparable to the present, other than at a very general level. For these reasons, we consider this decision provides no material assistance to the assessment of the appropriate starting point for the shooters in the present case.
In summary, we consider the Judge was right to indicate that a 14-year starting point would be justified for the shooters. This would be consistent with Taueki and would give effect to Parliament’s directive in s 8(c) of the Sentencing Act that the court must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed. Like the Judge, we consider the shooters’ offending falls into that category.
In any case, Mr Salt was not one of the shooters. The more pertinent question is to consider whether the 11-year starting point was appropriate to reflect his role and culpability. We do not accept that Mr Salt had only a limited involvement in the offence such that the mitigating factor in s 9(2)(d) is squarely engaged. However, we accept that his culpability can appropriately be viewed as being less than that of the shooters. As this Court stated in Taueki, where there are multiple offenders with different levels of involvement, the actual culpability of each offender will need to be assessed.[14]
[14]R v Taueki, above n 5, at [42].
This Court’s decisions in Keil and Kara also provide little assistance in the present case.
The offending in Keil occurred following an altercation at a family gathering the previous day in which Mr Keil’s father was seriously injured in an unprovoked attack by Mr Taumata and his son, Mr Haronga.[15] Mr Keil, who was 28, witnessed the assault on his father and was aggrieved at what had taken place. In furtherance of a common plan to resolve “family differences”, a group of nine people, including Mr Keil, travelled to Mr Taumata’s property in two vehicles. Knowing of the violent reputation of both Mr Taumata and Mr Haronga, and the latter’s “unpredictable and hostile nature”, they armed themselves with various weapons including two baseball bats, a wheel brace and a crowbar.[16] Mr Taumata suffered serious injuries in the ensuing attack including a fractured eye socket and facial bones and permanent loss of vision in one eye. Mr Haronga sustained less serious injuries, including bruising, abrasions, and a fractured thumb.
[15]R v Keil [2017] NZDC 2674 at [5].
[16]At [9].
The primary offenders were not identified. Only Mr Keil and Mr Paul, who were charged as parties, were found guilty of wounding with intent to cause grievous bodily harm to Mr Taumata. Mr Keil was also found guilty of injuring with intent to cause grievous bodily harm to Mr Haronga. Mr Keil was a passenger in one of the vehicles and admitted to being the leader of the group of younger men. He made the decision to stop the cars and enter the property to confront Messrs Taumata and Haronga. Mr Haronga wielded a gun and pulled the trigger, but it did not fire. This prompted Mr Keil to run back to his car in the driveway and arm himself with a baseball bat. He admitted attempting to disarm Mr Haronga by hitting him across the wrist. Mr Haronga then swung a tomahawk he was holding in his other hand, so Mr Keil hit him across that arm causing Mr Haronga to drop both weapons. Mr Keil and the others then retreated in the vehicles and left. Mr Haronga pursued them in his vehicle and attempted to ram them. Mr Keil appealed against conviction, not sentence. He contended that the Judge incorrectly ruled against the availability of self-defence, the summing up was unbalanced, and the verdicts were unreasonable. He did not appeal against his sentence of five years’ imprisonment.[17]
[17]Keil v R, above n 6, at [1]–[3].
Mr Paul admitted that he travelled to the property with Mr Keil and the others with the common intention of having “one outs” (one-on-one fighting). He said Mr Taumata struck him on the head and he retaliated by punching Mr Taumata on the head.[18] The starting point of six years’ imprisonment adopted for his role was not challenged on appeal. This compared to a starting point of seven years’ imprisonment for Mr Keil.[19]
[18]At [15].
[19]At [48]–[49].
Ms Priest argues that Mr Salt’s offending was only slightly more serious than that of Messrs Keil and Paul. We do not accept this. The overall context and circumstances of their offending are so markedly different that no useful comparison can be made. The unchallenged starting points adopted in the District Court in that case do not provide any material assistance to us in determining whether the starting point adopted for Mr Salt was outside the available range.
Kara was a successful appeal by the Solicitor-General resulting in a sentence of three-and-a-half years’ imprisonment being quashed and replaced by a sentence of five years’ imprisonment following a guilty plea to a charge of causing grievous bodily harm with intent to cause grievous bodily harm. The principal offender was found guilty of murder. Mr Kara’s role was as a secondary offender, “staunching up” to the victim and supporting the principal offender by his presence.[20] Mr Kara was 16 at the time and it was accepted that he did not anticipate that a blow or blows would be struck to the head, nor the likelihood of the ultimate fatal outcome. This Court considered that Mr Kara’s offending was on the cusp between band 2 and band 3 of Taueki.[21] However, because this was an appeal by the Solicitor-General, the sentence was to be adjusted no more than the minimum necessary to remove the element of manifest inadequacy. It was on that basis that this Court substituted a starting point of seven years’ imprisonment.[22]
[20]R v Kara, above n 6, at [26(e)].
[21]At [30].
[22]At [33].
We make two points about this case. First, it can be seen that Mr Kara’s role in the offending was low level and it was accepted he did not foresee that any blow would be struck to the victim’s head or the likelihood of the consequences. We see Mr Salt as being in a different category. Secondly, for the reasons this Court gave, the seven-year starting point would have been higher had it not been an appeal brought by the Solicitor-General. The case is not authority for the proposition that a seven-year starting point would have been the appropriate response to Mr Salt’s offending.
We will not prolong this judgment by working through the other seven cases that were referred to us. The exercise above, focusing on the decisions of this Court, will suffice to demonstrate why reference to the guideline judgment, rather than to a myriad of other first instance decisions that seek to apply it, is the preferable course. Otherwise, the principal objective of a guideline judgment, which is to promote consistency, will be undermined. These points were emphasised in Taueki.[23]
[23]R v Taueki, above n 5, at [10]–[11]. See also Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [4]; and Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [24].
In conclusion, we have not been persuaded that the Judge erred in adopting a starting point of 11 years’ imprisonment, placing Mr Salt’s offending in the lower half of band 3. Given the distinguishing feature that there were three offences, with three victims having been shot in the head or upper body, this starting point seems to us to be unimpeachable.
Was the discount for personal mitigating factors inadequate?
Before addressing personal mitigating factors, we mention the personal aggravating factor the Judge took into account as this must be considered when assessing whether the end sentence was manifestly excessive.
Mr Salt has 12 previous convictions, the most relevant being:
(a)Aggravated robbery in March 2008 (when he was 18) for which he was sentenced to 10 months’ home detention.
(b)Kidnapping and blackmail in July 2016 (when he was 26) for which he was sentenced in August 2018 to three years and three months’ imprisonment.
Mr Salt was on parole for this latter offending at the time he committed the present offences. The Judge did not apply any uplift for the previous offending, only for the fact the present offending occurred while Mr Salt was still subject to the prior sentence.[24] There is no challenge to the uplift of six months the Judge applied for this personal aggravating factor.
[24]Sentencing notes, above n 1, at [15].
Mr Salt is of Tongan descent and was aged 30 at the time of the offending. He is married with three children, who were aged 16, 11 and eight at the time of sentencing. Mr Salt’s wife is still supportive of him but says she is disappointed in him and does not support the decisions he has made. She says he has placed the family in a tough position. She works full-time as well as caring for the children.
The pre-sentence report prepared by a probation officer assessed Mr Salt’s offending as having been contributed to by negative peer associations (gang related), alcohol and drug abuse, violence, and poor problem solving. Mr Salt’s propensity to commit more serious crime has steadily increased over time. A significant concern was that, despite having been given the opportunity, he had yet to address his rehabilitative needs. He was at that time untreated for his alcohol and drug abuse and violence. In these circumstances, Mr Salt was assessed as presenting a high risk of harm to others. This risk was likely to remain elevated until he is able to effect long‑lasting change in his lifestyle through meaningful engagement in intensive rehabilitation programmes.
A comprehensive s 27 report was also provided to the Judge for the purposes of sentencing. While Mr Salt has faced some challenges in his life, including because his father was often absent, his upbringing was comparatively unremarkable.
Mr Salt’s parents remain supportive of him. He also received support from his wider family and had the benefit of a loving relationship with his maternal grandparents with whom he often spent weekends and regularly attended church.
Mr Salt is described as being intelligent and articulate. He completed his formal education at well-regarded schools. He said he enjoyed his primary school experience where he found learning exciting. He said he also enjoyed activities at intermediate school but would often get in trouble. He found high school more of a struggle, falling behind in subjects such as maths, science, and physical education. However, he enjoyed English, which was a strength for him.
Mr Salt was physically disciplined at home, but not significantly beyond cultural norms of the time. He regarded it as normal. More importantly, Mr Salt feels disconnected from his Tongan culture and language. He regrets not being able to speak Tongan and wishes his father had taught him. Mr Salt will be able to address these matters and it appears that his father is motivated to assist him.
Although his father was never involved in gangs, his older brothers were, and Mr Salt aspired to do what they did. He said he admired the gangs because they were all Pasifika and mainly Tongan. He said he was able to do this because his mother worked long hours to support the family and his father was often not around.
The Judge accepted that Mr Salt’s disadvantaged background and cultural disconnection had made it more likely that he would become involved in gangs and violent offending. However, the Judge considered that a reduction of 10 per cent was the most that could be allowed for this factor in all the circumstances, bearing in mind the serious nature of the offending.[25]
[25]At [22].
Ms Priest submits that a discount of 20 per cent should have been allowed to reflect Mr Salt’s background, addiction, and rehabilitative potential. She claims that Mr Salt’s life choices were severely limited by the environment he grew up in. He was distanced from his culture and violence was normalised as a means of discipline. She argues that life in a gang, abuse of drugs and alcohol, and a life of crime may be seen as inevitable. She contends that gang affiliation was a substitution for a lack of familial stability and Mr Salt’s current offending is a direct result of his longing for acceptance in group environments and the normalisation of violence throughout his childhood.
We consider that Ms Priest overstates the case. Compared to many other cultural reports, what stands out here is that Mr Salt had a good upbringing and enjoyed the love and support of various family members. He had ability and was provided with a good education. We cannot accept Ms Priest’s submission that his life choices were severely limited by the environment he grew up in. He had the support of a number of good role models including his mother, his grandparents with whom he spent a lot of time, and his aunt. The physical discipline he received at home may have been harsh but we do not consider it can be relied on as any form of justification or explanation for the extreme violence involved in the present offending.
Ms Priest refers to “addiction”, but neither the pre-sentence report nor the s 27 report refers to this. It is clear that Mr Salt has a long-term problem with alcohol and drug abuse but there is no evidence that he was an addict or that the present offending was driven by addiction.
We accept that Mr Salt has prospects for rehabilitation. However, at least at the time of sentencing, he had not taken any steps to address this. It is to be hoped that with his ability and expressed desire to make positive changes to his life, he will fully engage in the rehabilitative programmes that will be offered to him. To this end, as he himself remarked to the writer of the s 27 report, the lengthy term of imprisonment he knew he was facing could be a “blessing in disguise”.
We are not persuaded that the discount the Judge allowed for personal mitigating factors was manifestly inadequate. On the contrary, it appears to be within the appropriate range in all the circumstances. The observations of the majority of the Supreme Court in Berkland v R need to be kept in mind in this context. They made the point that sentencing purposes and principles such as deterrence, denunciation and community protection will usually be more powerfully engaged where the offending is particularly serious and the discount available for an offender’s background may correspondingly reduce, even if it has contributed to the offending.[26]
Was the discount for the guilty pleas inadequate?
[26]Berkland v R, above n 24, at [94].
Mr Salt was charged in November 2020. His guilty pleas were entered on 6 April 2022, three weeks prior to the commencement of the trial in the High Court at Auckland. The lateness of the entry of pleas meant that no other criminal trial could be re-scheduled to take its place. In all the circumstances, the Judge considered that a discount of 17.5 per cent should be allowed for the guilty pleas.[27]
[27]Sentencing notes, above n 1, at [24].
Ms Priest submits that the full discount of 25 per cent should have been allowed. While acknowledging the guilty pleas were entered relatively late in terms of proximity to trial, she contends that Mr Salt did not receive proper legal advice on the impact of pleading guilty until she was instructed in 2022. There were difficulties taking instructions because COVID-19 restrictions limited access to clients by VMR only, with long delays making bookings and technical difficulties. Ms Priest says that as soon as Mr Salt received proper legal advice and resolution was agreed with the Crown, he entered guilty pleas. She observes that there was a material change in the charges and the summary of facts to reflect Mr Salt’s lesser involvement. Ms Priest also says that there was late disclosure of some documents by the Crown.
Mr Salt provided an affidavit in the High Court explaining in part his reasons for changing counsel and why his guilty pleas were delayed. Ms Priest says that an offender should not be penalised for invoking their right to receive full and proper legal advice before making a decision, impliedly suggesting that is what the Judge did in assessing the appropriate discount.
In Hessell v R, the Supreme Court stated that the benefits that guilty pleas bring to the criminal justice system and its participants provide the core justification for recognising guilty pleas in the sentence. The assumption is that those pleading guilty are in fact guilty.[28] The benefits of a guilty plea include the benefit to victims through the acknowledgement of responsibility for the offending, sparing victims, their families and witnesses the stress of a trial, costs savings for the state, and reduction in trial back-logs leading to the more effective operation of the justice system.[29] Determining the appropriate discount requires an evaluative judgment taking account of all the relevant circumstances, including whether the plea was entered at the first reasonable opportunity, the reason for any delay, the inevitability or otherwise of conviction, the benefits for victims and witnesses, and the saving of state resources.[30] Consistency and therefore reasonable predictability should be strived for, while recognising that the particular circumstances of each case will differ.
[28]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [46].
[29]At [45].
[30]Moses v R, above n 24, at [23].
Mr Salt was initially charged in the District Court on 12 November 2020 with aggravated burglary and three charges of wounding with intent to cause grievous bodily harm. On 16 November 2020, the Crown assumed responsibility for the prosecution of three charges, being aggravated burglary and two charges of wounding with intent to cause grievous bodily harm. In mid-January 2021, the charges were amended to include a fourth charge of attempted murder. The guilty pleas to the present charges (on the basis of the amended summary of facts) were entered on 6 April 2022, 17 months after he was initially charged and only three weeks before the trial was due to commence. It was also six months after Ms Priest was instructed.
Mr Salt was clearly entitled to full legal advice and complete disclosure before entering his guilty pleas. In the absence of a waiver, we do not consider it would be proper to accept Ms Priest’s submission that counsel originally assigned failed to give adequate advice. In any case, Mr Salt was not a newcomer to the criminal justice system, and it seems unlikely that he would not have appreciated the advantages at sentencing of an early guilty plea.[31] However, even putting these matters to one side it seems to us that Mr Salt is not entitled to the full 25 per cent discount. The lateness of the pleas meant that one of the justifications for a discount was lost, namely reduction in trial backlogs and consequent improvement to the operation of the justice system. The saving of state resources was also lessened as a result of Mr Salt’s delayed guilty pleas. We consider the Judge was right to recognise that some reduction was required to differentiate Mr Salt’s position from that of an offender who accepts responsibility at the outset and pleads guilty at the first reasonable opportunity. The Judge considered all relevant circumstances and the adjustment he made seems reasonable. We see no appealable error in the discount applied for the guilty pleas.
Should there have been a discount for remorse?
[31]See R v Salt [2017] NZHC 1979 at [42].
The Judge explained why he was not prepared to allow the further reduction of five per cent sought for remorse:
[25] Ms Priest also argues for a further reduction of five per cent for remorse. You have provided material to the Court to support that submission including affidavit evidence. You say that in fact you have recently reconciled with Mr Finau while you were both on remand. You exercised together and shook hands. The Crown responded by providing the Court with CCTV footage from a couple of days later which shows you trying to force your way into his cell (assisted by your cell mate) while the corrections officers were opening Mr Finau’s door to let him into his cell. The CCTV footage is compelling. It puts the lie to your suggestion you only wanted to ask Mr Finau why he had changed his exercise regime. There is a period of about 40 seconds while Mr Finau was outside his cell on the landing and you were just down the landing from him. If you had wanted to speak to him, you could have. Also, your cell mate was lurking nearby and obviously keeping watch over his shoulder before he joined in. Under s 24(2)(d) of the Sentencing Act the onus was on you to establish the remorse that you had argued for. I do not consider you to be genuinely remorseful at all. You lack insight into your offending and its impact on others. Your concern is [for] your personal situation.
The experienced Judge was not satisfied on the basis of the material put before him that Mr Salt was genuinely remorseful. The difficulty Ms Priest faces in appealing this aspect of the sentencing decision is that she must demonstrate that the Judge’s failure to make this positive finding was wrong. Having reviewed the materials, we are not persuaded the Judge erred in declining any further discount for remorse.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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