SALT v R [2022] NZCA 611

SALT v R [2022] NZCA 611 [6 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA176/2022[2022] NZCA 611BETWEEN TREMAYNE JORDAN SALTAppellantAND THE KINGRespondentHearing: 23 November 2022Court: Goddard, Woolford and Fitzgerald JJCounsel: E P Priest for AppellantZ R Hamill for CrownJudgment: 6 December 2022 at 10.00 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The application to adduce fresh evidence is declined.C The appeal is allowed.D The concurrent sentences of eight years and two months' imprisonmenton each charge are quashed and replaced with concurrent sentences ofsix years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] 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 grievousbodily harm.1 He now appeals against the sentence, almost five years out of time.Leave is required.Leave to appeal[2] Mr Salt has filed an affidavit explaining the delay. He says the Judge gave hima 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 appealingas an appeal would not succeed.[3] It was only when he later spoke to other prisoners that he learnt that acultural report may enable an otherwise appropriate sentence to be discounted whenan offender's background is said to have been a cause of their offending. He alsorecently 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.[4] This Court has regularly held that it will only entertain an appeal that is manyyears out of time in exceptional circumstances. That said, the merits of the appeal arelikely to be determinative of a leave application in such circumstances. The Crownopposes leave for the same reasons that it opposes the appeal on the merits.Factual background[5] Mr Salt was part of a street gang called Dope Money Sex (DMS), which wasinvolved 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 formethamphetamine allegedly supplied to him by Mr Salt's older brother. Threats weremade to the victim's father and he and the victim went into hiding.[6] In an effort to secure repayment of the drug debt, Mr Salt and his brotherdecided to kidnap the victim and hold him against his will with threats to try and gethis 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 thehouse. Mr Salt was armed with a .22 calibre rifle. He pointed this at the victim, got1 R v Salt [2017] NZHC 1467.him into a car and took him with others to a house where he was then effectivelyimprisoned. He was told he would be held until his father paid the debt and he wouldbe shot with a pistol if he tried to run away. Mr Salt and his brother told the victim hisfather had until midnight to pay the debt. During that time, they made the victimperiodically call his father and ask him to repay the debt. Mr Salt himself spoke to thevictim's father demanding the debt be paid.[7] During this time, Mr Salt and others took turns assaulting the victim bypunching him to the head, chin, body and arms. The victim was also assaulted withan aluminium pipe, although this specific act was not attributed to any one person.[8] The assaults were sometimes timed so the victim's father could hear them overthe telephone. Mr Salt frequently threatened the victim during his detention that hewas going to be shot. At one stage Mr Salt's brother stabbed his right knee with ascalpel.[9] At around 3:30 am on 11 July 2016, Mr Salt blindfolded the victim withblack tape. He was taken back into a car where he was made to sit alongside Mr Saltwho was again armed with a pistol. During the car journey he was told that he wouldbe killed if he spoke to the police and, before he was let go, he would be shot as awarning to his father. He was made to choose between being shot in his leg or hishands.[10] On arriving at a park, the victim was made to leave the car whereupon Mr Saltinstructed him to hold out his hands. Standing about a metre from the victim, Mr Saltshot at the victim's hands. He missed twice as the victim moved his hands when theshots were fired. A third shot hit the back of the victim's right hand between the thumband forefinger and exited through the palm of his hand. Because the victim had hishands together, the bullet travelled into the palm of his left hand where it remainedlodged. The victim was left at the park. The victim required multiple surgeries on hishand, including to remove the bullet and is likely to have arthritis in his thumb for therest of his life.High Court sentencing[11] On 19 May 2017, at Mr Salt's request, Woodhouse J gave him a sentenceindication. 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.[12] The Judge adopted a global starting point of 11 years' imprisonment for thetwo offences, although he commented that it could be in excess of 11 years. The Judgesaid 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 acceptthe sentence indication. Finally, the Judge commented that any further adjustmentwould have to be left for the sentencing when he would have much more informationabout Mr Salt's background.[13] Mr Salt accepted the sentence indication and pleaded guilty. Sentencing tookplace on 29 June 2017. The Judge referred to the sentence indication as forming partof the sentence, to be attached to his sentencing notes.[14] The Judge referred to the information he had received about Mr Salt'sbackground. He had a pre-sentence report, a letter from his mother, Mr Salt's ownletter and a certificate from the Department of Corrections confirming Mr Salt'sattendance at a preliminary alcohol and drug support programme. The Judge thenlisted the matters which he was satisfied should be taken into account in Mr Salt'sfavour 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 grandparentswhen he was younger, but thereafter was badly influenced by at leastsome 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 ofthe effect on the victim.[15] The Judge noted that the Sentencing Act 2002 required him to have regard tothe above matters, but in his judgment the reduction could not be large in relation tothe 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 sentencebecause of Mr Salt's previous offending, the previous offending nonetheless did weighagainst the positive considerations. The Judge concluded: "Putting that in simpleterms, I cannot look at all the good things and just ignore a long period of bad things".3[16] In the end, the Judge gave Mr Salt a discount of nine months for a combinationof youth, family circumstances and remorse. That brought the starting point down to10 years and three months' imprisonment before the previously indicated discount of20 per cent for Mr Salt's guilty pleas. The end sentence imposed on Mr Salt wastherefore eight years and two months' imprisonment on each charge, to beserved concurrently.Application to adduce fresh evidence[17] Mr Salt seeks leave to admit fresh evidence on appeal in the form of a culturalreport pursuant to s 27 of the Sentencing Act by Elynn 'Atiola and Semisi Pohiva ofTuitala Law Ltd. Counsel for Mr Salt, Ms Priest, acknowledges that s 27 reports2 R v Salt, above n 1, at [17].3 At [17].should not generally be produced for the first time on appeal. Section 335 of theCriminal Procedure Act 2011 does, however, allow new evidence to be presented onappeal if it is necessary or expedient in the interests of justice. New evidence willneed 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 reportson appeal and can substitute sentences when a report is clearly relevant to culpability.Approach on appeal[18] 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 therewas an error in the sentence and a different sentence should be imposed. Althoughs 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) andcontinues to be utilised when considering s 250(2).4 This Court has emphasised thatthe focus is on the correctness of the end sentence, not the process by which thesentence was reached.5Submissions[19] Mr Salt does not take issue with the starting point of 11 years' imprisonmentadopted 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.[20] Ms Priest submits the discount for personal factors should instead total30–35 per cent, comprised as follows:(a) 10 per cent discount for youth;4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].5 At [36].(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.[21] Ms Priest submits that these discounts were justified based on the materialbefore the sentencing Judge, and the appropriateness of these discounts was confirmedby the s 27 report that Mr Salt sought to adduce as fresh evidence on appeal.[22] Ms Hamill, counsel for the Crown, submits that the Judge was correct totemper the quantum of discount by reference to the gravity of the offending andMr Salt's criminal history. She submits that in assessing the available discount formitigation against the overall circumstances of the case and Mr Salt's background, theJudge did not err. The discount he fixed was appropriate in the circumstances.[23] The Crown says that the s 27 report should not be received as further evidenceon appeal. It is not fresh. Nor is it cogent: it simply fleshes out, with more detail, theinformation that was before the sentencing Judge contained in the pre-sentence reportand in a letter from Ms Salt's mother.Should the s 27 report be received as fresh evidence?[24] On a number of occasions this Court has said that generally s 27 reports shouldnot be submitted for the first time on appeal.6[25] However, if the information in a s 27 report is cogent then we accept sometimesit will be appropriate for it to be considered by a court on appeal.7[26] In this case there was substantial information about Mr Salt's background andfamily circumstances available to the sentencing Judge in the pre-sentence report andin the letter from Mr Salt's mother.6 Simcic v R [2022] NZCA 592 at [43]; and Laipato v R [2021] NZCA 562 at [13], citing Carroll vR [2019] NZCA 172 at [8] and Clarke v R [2021] NZCA 96 at [14].7 Laipato v R, above n 6, at [16].[27] The pre-sentence report noted that Mr Salt was a heavy user ofmethamphetamine at the time of the offending and if he was "straight" would not havedone "all of this". He had no structure in his life and was in a "dark place". He gotexpelled from school in Year 9 and had never had a job. Once he was expelled, hegravitated to anti-social peers. Mr Salt felt sorry for the victim and was willing toparticipate in restorative justice if the victim was willing to do so. He alsoacknowledged the need for drug rehabilitation.[28] Mr Salt's mother advised the Court by way of a letter that Mr Salt was theseventh of her nine children. He was the youngest son. Mr Salt was initially raisedby his grandparents. Problems started when his grandfather died when he wasfive years old. Mr Salt found it hard when he went to live with her, and he looked upto his older brothers as role models as his father was never a real presence in thechildren's lives.[29] Mr Salt's mother advised the Court that three of Mr Salt's brothers have beenincarcerated and one of his older brothers was a co-offender. Mr Salt's use ofmethamphetamine was also highlighted by his mother. She said she felt as if she hasfailed Mr Salt and society and wished she could turn back time and be given anotherchance to guide him and love him.[30] We agree with Crown counsel that there is substantial overlap between thes 27 report and the information contained in the pre-sentence report and in the letterfrom Mr Salt's mother. The s 27 report gives more detail and context to some of thethemes covered by the other documents such as the poverty faced by the family, andthat Mr Salt's disruptive behaviour at school (which resulted in reduced educationalopportunity) was to some extent because of a lack of food at home. The fact ofMr Salt's poor educational outcome and the changing dynamics and challenges of hisfamily life were, however, before the Judge.[31] As the Crown acknowledges, the use of severe physical discipline andMr Salt's cultural disconnect were factors that were not explicitly identified in thematerial available at sentencing. But the clearest factors contributing to Mr Salt'soffending that are discernible from the s 27 report are Mr Salt's family dynamics, theinfluence of his older brothers and his methamphetamine use at the time. These werematters explicitly identified by the Judge at sentencing. Likewise, Mr Salt'smotivation to rehabilitate was also before the Judge at sentencing.[32] In those circumstances, we consider the s 27 report should not be admitted asfresh evidence. As Ms Priest very properly accepted in the course of argument, muchof the information in it was already before the Judge, albeit not articulated in the mosthelpful way to identify its relevance to culpability. This Court has the benefit ofMs Priest's submissions articulating the causal link between Mr Salt's background andthe offending; further evidence is not required for that purpose. The application toadduce fresh evidence is therefore declined.[33] We go on to consider whether, by reference to the material that was before thesentencing Judge, there was a material error in the sentence imposed.DiscussionYouth[34] The Crown notes that the Judge did identify Mr Salt's relative youth as amitigating factor and submits the Judge did not err in assessing it together withMr Salt's general personal circumstances. It further submits that a discrete discountfor youth was not required in the circumstances of this case.[35] The extent to which Mr Salt's youth formed part of the overall 6.8 per centdiscount for personal factors is, however, not clear. In our view, it would have beenpreferable for a discrete discount for youth to have been separately identified.[36] Churchward v R8 and subsequent cases recognise the relevance of youth,noting that young people are more vulnerable to external pressures, negativeinfluences and may act more impulsively than adults. Young persons may fail toappreciate the full gravity of the offending, while at the same time knowing that it iswrong. Further, the effect of imprisonment on young persons may be crushing,8 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[79].especially long sentences. Lastly, young people have greater capacity forrehabilitation.[37] This was premediated offending over an extended period of more thanfive hours, not impulsive conduct in response to unfolding circumstances as inDiaz v R.9 But we accept that Mr Salt was acting under the influence of his olderbrother, and the street gang he had become involved with through his brothers'influence. His relative youth made him susceptible to external pressures andanti-social peers, particularly in the context of his upbringing and his familycircumstances following the death of his grandfather.[38] In those circumstances, we accept Ms Priest's submission that a youth discountof 10 per cent would have been appropriate, particularly when taking into account thelength of the term of imprisonment Mr Salt was facing.Family circumstances[39] The Judge's overall discount of 6.8 per cent was described as including anallowance for Mr Salt's family circumstances, including his addiction tomethamphetamine. We have already concluded that an allowance of 10 per cent forMr Salt's youth would have been appropriate. What additional allowance should havebeen made for his family circumstances?[40] In Zhang v R,10 this Court recognised that a number of mitigatingconsiderations arose in relation to addiction. It considered that addiction may logicallygive rise to a discount of up to 30 per cent of the sentence depending on the extent towhich it mitigates moral culpability for the offending. The Court cautioned, however,that any such discount should be based on persuasive evidence as opposed to mereself-reporting.11 Here, Mr Salt has reported an addiction. His addiction is confirmedby 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 purposeof recovering a drug debt owed to the gang that Mr Salt was involved with, and from9 Diaz v R [2021] NZCA 426.10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.11 At [148]–[149].which he was obtaining drugs — took place in the context of that addiction, and thepressures to which it gave rise. Mr Salt explains that the victim's friend contactedMr Salt to get some methamphetamine. Once he met with her, she told him where thevictim 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.[41] Mr Salt's introduction to methamphetamine was at an early age of 15 or16 years through the influence of his older brothers. Apart from addiction, otherfactors which contributed to the offending were exposure to physical abuse, poverty,neglect and cultural disconnect. In this case, we consider that an appropriate discountfor Mr Salt's family circumstances, including his addiction to methamphetamine,would be 10 per cent.Remorse[42] The sentencing Judge accepted Mr Salt was remorseful. He stated:12From what the probation officer has said I can accept that you have somegenuine remorse for what you have done, beyond what is reflected in the guiltypleas, and an understanding of the effect on the victim.[43] Where there is tangible evidence of genuine remorse, a discount of five to eightper cent may be appropriate.13 Should there be a further discount for remorse, inaddition to youth and family circumstances, in this case?[44] Mr Salt felt very sorry for the victim and was willing to participate inrestorative justice with him if he wished to do so. He acknowledged his need to takepart in rehabilitation programmes and had voluntarily participated prior to sentence ina Department of Corrections preliminary alcohol and other drug support programmes.The Judge accepted that Mr Salt was remorseful beyond the remorse inherent in hisguilty pleas. In those circumstances, a separate discount of five per cent for remorsewas appropriate.12 R v Salt, above n 1, at [16].13 McArthur v R [2013] NZCA 600 at [13]–[14]; and Rowles v R [2016] NZCA 208 at [18].Overall discount for mitigating factors[45] The Judge acknowledged that the Sentencing Act required him to have regardto mitigating factors, but said the reduction could not be a large one because of thegravity of the offending. However, the gravity of the offending should already bereflected in the starting point adopted. The Judge's approach of denying otherwiseappropriate discounts for mitigating factors because of the seriousness of the offendingrisks an element of double counting.[46] This Court has acknowledged the possibility that the seriousness of theoffending might temper any discount given for personal factors.14[47] However, the Court has applied relatively substantial discounts for personalfactors, 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 formitigating factors should only be reduced or refused if full mitigation would notproperly give effect to the principles of sentencing set out in the Sentencing Act.16[48] Crown counsel points to the case of Tahuri v R17 as illustrative of the principle,adopted by the Judge in this case, that discounts for mitigation cannot be assessed ina vacuum. As such it provides a useful comparison, according to the Crown.[49] Mr Tahuri and his neighbour were associated with rival gangs. When anargument ensued between them, Mr Tahuri retrieved a shotgun and fired two shots atthe neighbour's house injuring one of the occupants. The injury was to the shoulderand consistent with being close-range. The victim required surgeries and had on-goingpain. A starting point of 11 years' imprisonment was adopted in that case followed bya 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.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].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].17 Tahuri v R [2013] NZCA 254.[50] The Crown notes that the Court in Tahuri observed those factors "might insome circumstances justify a somewhat larger discount".18 However, the Court heldthat "any credit for youth and previous good character cannot be assessed in avacuum".19 It pointed to the gravity of Mr Tahuri's offending and "overtones of gangtensions" as relevant to the assessment of the appropriate discount.20 Together withan absence of remorse in that case, these factors justified the quantum of discount andthis Court found no error.[51] We agree with Crown counsel that direct comparison of the quantum ofdiscount provides only limited assistance, but in Tahuri the sentencing Judge gavetwice the discount given in this case (18 months versus nine months) just forMr 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 offenceand expressed no remorse for the injuries suffered by the victim. He took noresponsibility for the offending and was assessed as being of high risk of re-offending.[52] The Court in Tahuri nonetheless found that whilst the extent of the discount inthat case of 18 months for youth with any addition for previous good character maybe at the low end of an appropriate range, it was by no means out of the range.21[53] In this case, we have concluded that discounts totalling 25 per cent wereappropriate to reflect mitigating circumstances personal to Mr Salt. That would beadded to the 20 per cent discount for a guilty plea. We do not consider that this is acase in which otherwise appropriate discounts should not be taken into account insentencing. Applying a 45 per cent discount to the starting point of 11 years'imprisonment would result in an end sentence of six years' imprisonment.[54] Standing back, and considering all the circumstances of the offending and theoffender, 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 timeand has had significant long term health consequences. A substantial term of18 At [42].19 At [43].20 At [43].21 At [44].imprisonment is required. But that term of imprisonment needs to reflect themitigating factors that reduce Mr Salt's culpability, and suggest a real prospect ofrehabilitation. A sentence of six years' imprisonment strikes that balance.An extension of time should be granted and the appeal allowed[55] It follows that the appeal has real merit. An appropriate approach to mitigatingfactors would result in a material reduction in Mr Salt's sentence from eight years andtwo months' imprisonment to six years' imprisonment. In those circumstances it is inthe interests of justice to grant an extension of time to bring the appeal, and to allowthe appeal.Result[56] An extension of time to appeal is granted.[57] The application to adduce fresh evidence is declined.[58] The appeal is allowed.[59] The concurrent sentences of eight years and two months' imprisonment oneach of the two charges are quashed and replaced with concurrent sentences ofsix years' imprisonment on each charge.Solicitors:Crown Law Office, Wellington for Respondent