Chong v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0194

KA MING CHONG	Appellant
v
THE KING	Respondent

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JUDGES:	T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2023
DATE OF JUDGMENT:	30 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 62
JUDGMENT APPEALED FROM:	DPP v Chong [2021] VCC 1933 (Judge Hogan)

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CRIMINAL LAW – Sentence – Appeal – Kidnapping – Appellant sentenced to 7 years 6 months’ imprisonment for that offence – Co-offender sentenced to 1 year 6 months’ imprisonment for the same offence – Appellant orchestrated offending – Co-offender lured victim for financial reward – Whether judge erred in applying principle of parity – Whether appellant denied procedural fairness – Appeal allowed – Appellant suffered subsequent serious injury in custody – Resentenced to total effective sentence of 4 years and 8 months with a non-parole period of 3 years.

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Counsel
Appellant:		Mr G Hughan
Respondent:		Mr C B Boyce KC
Solicitors
Appellant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
TAYLOR JA:

Introduction and overview

On 23 July 2021 the appellant pleaded guilty to one charge of kidnapping[1] and one charge of possess imitation firearm without exemption/approval.[2]
[1]Contrary to s 63A of the Crimes Act1958.
[2]Contrary to s 5AB(1) of the Control of Weapons Act1990.
Following a plea hearing on 4 November 2021, the appellant was sentenced on 2 December 2021 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Kidnapping	25 years	7 years and 6 months	Base
Related Summary Offence
3	Possess imitation firearm without exemption or approval	240 penalty units or 2 years’ imprisonment	2 months’ imprisonment	2 months
Total Effective Sentence:		7 years and 8 months
Non-Parole Period:		5 years and 6 months
Pre-sentence Detention Declared:		548 days
Section 6AAA Statement:		Total Effective Sentence: 10 years 6 months Non Parole-Period: 7 years 6 months
Other Relevant Orders: N/A

The appellant’s co-offender, Wenting Lu, pleaded guilty to one charge of kidnapping and was sentenced on 18 August 2021 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Kidnapping	25 years	1 year and 6 months	Base
Total Effective Sentence:		1 year and 6 months
Non-Parole Period:		9 months
Pre-sentence Detention Declared:		23 days
Section 6AAA Statement:		Total Effective Sentence: 2 years 6 months Non Parole-Period: 2 years
Other Relevant Orders: N/A

On 5 August 2022 Macaulay JA granted the appellant leave to appeal against sentence on the following grounds:[3]
1.The sentencing judge erred in law by imposing a sentence on charge 1 in breach of the principles of parity because the sentence gives rise to a justifiable sense of grievance when compared with the sentence imposed upon the appellant’s co-offender for the same offence.
3.The sentencing judge denied procedural fairness to the appellant, by taking into account adversely to the appellant that at the committal proceedings the complainant ‘… was also gratuitously cross-examined about his visa status here in Australia’, without giving the appellant notice that her Honour would do so.
[3]Leave to appeal was refused with respect to ground 2.
The appellant also seeks leave to appeal on the following additional ground:
4.Fresh evidence throws a different light on the circumstances of the appellant’s incarceration as they existed at the time of sentence and requires that the appellant is resentenced.
For the reasons that follow ground 1 must succeed. The appellant will be resentenced as set out in paragraph 72.

Circumstances of the offending

In April 2020 the appellant operated an import/export business. Under cover of that business he sought to illegally import a consignment of cigarettes with a street value of about $500,000. On 23 April 2020 the package that the appellant expected to contain those cigarettes was delivered to him by Yu-wen Chen, a sub-contractor truck driver for AGL Logistics. Upon delivery the package did not contain the cigarettes.
The appellant suspected Chen was responsible for the missing cigarettes. He determined to kidnap Chen in order to find out what had happened to them.
The co-offender Lu was the receptionist for an online escort agency used by the appellant. She knew him as ‘Joel.’ In May 2020 he used the WeChat platform to contact Lu. He told her that he needed help to find someone who had stolen his cigarettes. The appellant and Lu exchanged messages over the course of about a week. On 16 May 2020 the appellant asked Lu to contact Chen – whom he referred to as ‘Tom’ – and provided her with ‘Tom’s’ WeChat account.
The following day Lu contacted ‘Tom’ via WeChat. She said her name was Cindy and that she needed a bed frame and other furniture moved.
In a WeChat message on 18 May 2020 the appellant told Lu that two teams of people were interested in the job and that it was necessary ‘to capture and kidnap [Chen] for a few days until he confesses who is the instructor. Quite brutal.’
Thereafter Lu continued to use WeChat to communicate with ‘Tom’ and ensured he would be alone when he came to move the bed frame. Chen had the permission of AGL Logistics to use the truck and complete the job privately for a fee of $120.
On 24 May 2020 Chen arrived at the address nominated by Chen in A’Beckett Street Melbourne. After the bed frame had been loaded onto his truck, Lu sent Chen the delivery address via WeChat. That address, in Meadow Heights, had been nominated by the appellant. Chen arrived at that address and parked across the driveway.
Chen had noticed a Toyota vehicle with three persons inside parked near a man of Asian appearance standing near the delivery address. He asked that man where he should leave the bed frame. After leaving it at the front door as requested, Chen returned to the back of his truck. The Toyota then sped into the street and parked directly behind him.
The three men exited the Toyota and hit Chen with a baseball bat multiple times. He fell to the ground and was also punched and kicked. Chen feared for his life. The three men then grabbed him and put him in the back of the truck. His hands and ankles were tied with plastic cable ties. When he asked ‘why are you doing this to me?’ Chen was told ‘shut up, you will meet someone later’. He was then left alone in the back of the truck.
The appellant observed these events. He left the area only after Chen was placed in the truck.
As the truck drove away Chen was aware that the Toyota was following it. He managed to slip his fingers and hands out of the ties. He took his boots off and freed his ankles before putting his boots back on. Chen then opened a gap in the door of the truck, squeezed his body through it and jumped out when he estimated it was on the highway. The Toyota, behind the truck, sounded its horn.
Chen flagged down a passer-by, who called police. An ambulance arrived a short time later. Chen was taken to the Royal Melbourne Hospital. His injuries included a fractured elbow, displaced fracture of two fingers, defensive wounds to his left forearm, bruising to both his head and arms and swelling and pain to his spinal region.
Later in the afternoon the appellant met Lu and gave her $500. He told her to delete the message history between them.

Arrest

On 2 June 2020 police executed a search warrant at Lu’s residence. An iPad with the WeChat conversations between her and the appellant was seized.
The appellant was arrested on the same day. During a search of his home an imitation firearm[4] and an iPhone 11 were seized. He gave a no comment record of interview in relation to the kidnapping. He said he had bought the firearm online, ‘just for collection.’
[4]This was the subject of charge 3. It was not alleged that it was connected with the kidnapping the subject of charge 1.
Lu was arrested on 3 June 2020. She told police that she had sold her bed to ‘Joel’ for $500 and that Joel wanted it delivered by ‘Tom’. Lu denied knowing that Joel intended to kidnap Tom. She agreed that Joel had asked her to photograph Tom and his truck and send the photographs to him. Lu also said that Joel asked her to delete any conversations and photographs relating to Tom.

Procedural history

Lu was committed by way of straight hand-up brief on 19 November 2020. In June 2021 Lu made an application for a sentence indication in the County Court.[5] On 18 June 2021 that indication was provided. Lu was arraigned and pleaded guilty to a single charge of kidnapping on that same date.
[5]Pursuant to s 208 of the Criminal Procedure Act2009.
On 24 June 2021 the appellant was committed to stand trial following a contested committal.
On 5 July 2021 Lu’s plea was adjourned part heard after she indicated she would give a statement against the appellant.
On 22 July 2021 the appellant indicated he would plead guilty to kidnapping. He was aware that Lu had expressed her willingness to make a statement implicating him. Later that day, the appellant received Lu’s statements.
On 23 July 2021 the appellant was arraigned and entered pleas of guilty to the charges.
Lu’s plea concluded on 4 August 2021. As noted above, she was sentenced on 18 August 2021.
The appellant’s plea was heard on 4 November 2021. Again as noted above, he was sentenced on 2 December 2021.

Sentencing reasons

After outlining the appellant’s offending and the procedural history of the charges against both him and Lu, the sentencing judge referred to her sentencing remarks in respect of Lu.[6] Her Honour had found Lu to have had ‘a crucial role’ in enticing the unsuspecting Chen for the appellant and to have performed it for financial reward. That reward was three-fold. First, to keep the appellant as a regular client of the escort agency.[7] Second, to receive $10,000 for her part in the kidnapping. Third, to prospectively gain employment in the appellant’s international trading business. Lu’s assistance to law enforcement authorities in the form of her statement against the appellant was described by the prosecution and accepted by her Honour as ‘less than moderate’.[8]
[6]DPP v Chong [2021] VCC 1933 (‘Sentencing remarks’), [13].
[7]As a receptionist and booking agent, Lu received ten to 15 percent of booking fees. The appellant used the escort agency once or twice per week at a price of $500 to $1,000 per booking.
[8]Sentencing remarks, [12].
The judge then outlined the appellant’s personal circumstances.[9]
[9]Sentencing remarks, [15]-[20].
The appellant was aged 28 years at the time of the offending and 30 years when sentenced. He was born in Malaysia, the only child of his parents. They separated when he was young. The appellant then lived with his mother, whom he described as physically and psychologically abusive. He had sporadic contact with his father until his death in 2019.
The appellant’s home life led him to display oppositional behaviour and associate with negative peers. He commenced drinking alcohol at the age of 15 and used cannabis for a short time when he was 18. The appellant developed an alcohol dependency. He drank two bottles of whisky a week until the time of his arrest. In early 2020 he began using ‘ice’ and would do so, on average, once per fortnight until his arrest.
The appellant attended school in both Singapore and Malaysia, but was often a truant. After leaving school he qualified as a hairdresser and worked as such for seven years. In his early twenties, the appellant moved to Taiwan. There he completed a course in personal training and worked as a personal trainer for four years.
In 2017 the appellant married Elysia Eui. She obtained a study visa to Australia. The appellant came to Australia with her as a secondary applicant. Thereafter he worked in casual jobs for a couple of years. In 2019 he and his half-brother set up an import/export business. It was embryonic at the time of the appellant’s offending.
Ms Eui and the appellant are separated and intend to divorce. Ms Eui has visited him in prison. The appellant’s relationship with his mother remains troubled, although she did travel to Australia from Malaysia to visit him in custody. The appellant’s mother was forced to remain in Australia as a result of the border restrictions imposed during the COVID-19 pandemic.
The judge noted that the appellant had a limited prior criminal history.
Next, her Honour referred to the custodial environment experienced by the appellant since his remand.[10]
[10]Sentencing remarks, [21]-[28].
The appellant had undergone periods of quarantine isolation designed to combat the spread of COVID-19 in prisons. He worked as a hairdresser from January 2021 but ceased that employment in August 2021 when he was placed in protection following an incident with other prisoners. At the time of sentencing the appellant still had protection status and was placed at Ravenhall. Although available to him, the appellant displayed no interest in drug and alcohol programs.
The judge then referred to the evidence of Dr Mathew Barth, a psychologist who had conducted a psychological assessment of the appellant in October 2021. Dr Barth concluded that the appellant’s maladaptive personality traits exhibited features of an Antisocial Personality Disorder, but did not fully meet the DSM-5 diagnostic criteria. However, the appellant met the diagnostic criteria for a moderate level of Alcohol Use Disorder and a mild level of Stimulant Use Disorder. His symptoms of depression and anxiety, present since childhood, attracted the diagnosis of Adjustment Disorder with Depressed Mood.
The appellant told Dr Barth that the offending occurred at a time of financial stress, heavy drinking and ice use. Dr Barth said that the appellant had limited insight into his substance abuse and lacked any realistic plans to remain abstinent.
Dr Barth’s evidence was not argued to enliven the Verdins[11] principles, but as relevant to the appellant’s personal circumstances. The judge found that the appellant’s experience of custody would be more onerous than that of someone who did not suffer the same psychological problems.[12]
[11]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[12]Sentencing remarks, [31].
Her Honour referred to the matters the appellant could call on in mitigation of sentence. These were his limited criminal history, volunteer work with the State Emergency Service, work in custody as a hairdresser as well as his pleas of guilty.[13] The judge noted that the pleas were entered during the COVID-19 restrictions, which increased their utilitarian value. The pleas of guilty were also taken to indicate some remorse, but the appellant’s contrition was a ‘recent development’.[14] Her Honour also noted that the appellant faced mandatory cancellation of his visa at the time of sentencing.[15]
[13]Sentencing remarks, [32].
[14]Sentencing remarks, [33].
[15]Sentencing remarks, [35]-[36].
The judge then turned to the issue of parity of sentence with that imposed on Lu. Her Honour said that the appellant bore a heavier moral culpability than Lu because he conceived the plan.[16] Her Honour stated that there was ‘a very large disparity’[17] in the roles played by the appellant and Lu by reason of five matters. First, that the appellant was 28 years old whereas Lu was 22 years. The appellant presented to Lu as ‘something of a man of the world’.[18] Second, the appellant devised the plan to kidnap Chen. It was not an impulsive drug or alcohol fuelled act. Third, while Lu showed ‘callous indifference’ to Chen, the appellant had a specific plan to capture and assault him, hiring a team of thugs to assist and standing nearby as the initial assault took place. Fourth, the appellant hoped his offending would recover illegally imported cigarettes worth $400,000 to $500,000. The financial reward he promised to Lu, being about $10,000, was significantly smaller. Fifth, the appellant, unlike Lu, ran a contested committal at which Chen was cross-examined. Sixth, Lu pleaded guilty five weeks before the appellant and also gave assistance to law enforcement authorities.
[16]Sentencing remarks, [37]-[38].
[17]Sentencing remarks, [38].
[18]Ibid.
As to the fifth matter, relevant to ground 3, her Honour’s remarks were as follows:
Unlike Lu, you ran a contested committal where, by reason of questions asked on your behalf, the victim was made to relive the ordeal that he endured. As I have stated, he was asked about the presence of the people in the car who had assaulted him and thrown him into the back of the truck and about him being driven away, with the car following the truck. He was also gratuitously cross-examined about his visa status here in Australia.[19]
[19]Ibid.
There was a footnote to the last sentence which referred to 3 pages of the committal transcript from 24 June 2021.
Earlier, the judge had said, when noting the appellant’s statements of remorse:
I take that into account, but note that it must be a recent development as it had not stopped you putting the victim through the ordeal of cross-examination at committal, even though the prosecution case against you was a relatively strong one. Although it was not particularly extensive cross-examination, he was required to turn his mind to the circumstances of his capture and being thrown into the back of a van and the horror of having the vehicle with the assailants in it following close behind.[20]
[20]Sentencing remarks, [33].
The sentencing judge next referred to the effect of the offending on Chen.[21] She noted the maximum penalty for kidnapping and that it is a Category 2 offence requiring a mandatory term of imprisonment.[22] Her Honour remarked that other cases of kidnapping are fact specific and comparative sentences are of little assistance.[23] Her Honour found the appellant’s prospects of rehabilitation difficult to assess[24] before finding that he had ‘a great deal of work’[25] to do to rehabilitate himself.
[21]Sentencing remarks, [39]-[40].
[22]Sentencing remarks, [41].
[23]Sentencing remarks, [42].
[24]Sentencing remarks, [48]-[52].
[25]Sentencing remarks, [52].

Ground 1

Appellant’s contentions

The appellant contends that while the differences in their respective offending required the imposition of a significantly higher sentence and non-parole period on him, the differences in the sentences and non-parole periods actually imposed on him and Lu were far too great. The sentence of imprisonment imposed upon the appellant for kidnapping is five times that imposed on Lu. Further, his non-parole period is 7.33 times that set for Lu.
The appellant argues that the sentencing reasons reveal several errors underpinning this inordinate disparity.
First, three of the factors listed by her Honour as relevant to the role played in the offending by each of the appellant and Lu are not relevant to role at all. These are the modest age difference between them, that the appellant ran a contested committal and that Lu provided some assistance to authorities.
Second, her Honour’s recitation of the appellant’s offending elides Lu’s crucial role in the offence.
Third, her Honour failed to consider the commonality between the appellant and Lu. In particular they both pleaded guilty to the same offence – albeit with different roles – relatively close in time and during the COVID-19 pandemic. Further, Lu’s assistance was of ‘less than moderate value’ and could not have resulted in anything more than a moderate benefit.
Fourth, her Honour failed to refer to cases relied upon by the appellant or the principles derived from them and instead relied upon cases involving the sentencing of the ‘architect of offending’.

Respondent’s contentions

The respondent submits that the most significant factor differentiating the appellant and Lu was their respective roles in the offending. They were not equal participants. The appellant was the instigator of the kidnapping, recruited a team of people to assist, actively monitored the execution of it and sought to conceal the offending by asking Lu to delete her WeChat messages. Lu, although not peripheral to the offending, was embroiled in it by the appellant and acted under his instructions.
The respondent further submits that the distinction between the appellant and Lu extends beyond their respective roles in the offending. First, the appellant’s moral culpability was markedly more serious than that of Lu. Second, the appellant anticipated recovering $500,000 of cigarettes whereas Lu’s promised reward was $10,000 and the hope of future employment. Third, Lu at 22 years of age was a youthful offender for whom rehabilitation assumed prominence. The appellant was aged 28 years. Fourth, Lu had no criminal history. The appellant did, albeit limited to driving offences. Fifth, while both pleaded guilty at similar stages, the appellant only did so after learning that Lu had given a statement to authorities. Sixth, the appellant ran a contested committal and subjected Chen to cross-examination. Lu did not. Seventh, Lu provided assistance to law enforcement authorities. The appellant did not. Eighth, the appellant’s prospects for rehabilitation were hard to assess whereas Lu had fairly good prospects.
The respondent argues that in the circumstances, the only available sentence in respect of the appellant was a significant custodial term. In Lu’s case, a combination sentence would have been within range.
The respondent also submits that there was a rational basis for the disparity in the non-parole periods imposed. That imposed with respect to Lu was designed to promote her rehabilitation. That imposed with respect to the appellant addressed the more pressing sentencing purposes of general deterrence, just punishment and denunciation.

Analysis

The principles concerning parity of sentences are well settled. Co-offenders being sentenced for the same offence should, all things being equal, be treated alike. Relevant differences between them can justify different outcomes.[26]
[26]See, e.g. Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ); [1984] HCA 46 and Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA).
A sentencing judge must engage in a comparative analysis of the co-offenders’ circumstances.[27] This includes relative culpability, roles played by each offender, personal circumstances, unique mitigating or aggravating features and other relevant matters.[28]
[27]Nipoe v The Queen [2020] VSCA 137, [40] (Maxwell P, Niall and Emerton JJA).
[28]Postiglione v The Queen (1997) 189 CLR 295, 301-2 (Dawson and Gaudron JJ); [1997] HCA 26.
As this Court has said:
… sentencing is not a mechanical exercise wherein comparative circumstances of offenders are weighed with arithmetical certainty, however, disparity arguments inevitably involve numerical comparison together with an evaluation and comparison of other, less commensurable factors.[29]
[29]Tran v The Queen [2021] VSCA 278, [40] (Kaye and T Forrest JJA).
Plainly, the sentencing judge turned her mind to the issue of parity and the need to undertake the comparative analysis. Despite the appellant’s argument that her Honour described some factors of differentiation between the appellant and Lu as relevant to the roles played by each of them when they were not, it is clear that the judge compared their respective similarities and differences across the relevant spectrum of considerations. This included levels of moral culpability, role in the offending and the suite of mitigating factors personal to each of them.
The differences between the appellant and Lu revealed by such a comparative analysis justify a significantly disparate sentence. In particular, the moral culpability of the appellant and his role as instigator, recruiter and overseer of the kidnapping enterprise demands a significantly higher sentence than that imposed on Lu even before her cooperation and relative youth are considered.
However, the essence of this ground is not asserted error by the sentencing judge in incorrectly describing factors relevant to the respective roles of the appellant and Lu in the comparative analysis but the breadth of the disparity in the sentences imposed. After taking account of all relevant factors highlighted in the submissions of the parties, we have formed the view that the disparity between the sentences imposed is excessive. There is a 500 percent difference in the head sentences and a 733 percent difference in the non-parole periods. The magnitude of that difference is, in all the circumstances, productive of a justifiable sense of grievance.
It follows that ground 1 is made out.

Remaining grounds

It is therefore unnecessary to consider ground 3. That said, in our view, little turns on the judge’s use of the descriptor ‘gratuitously’ when describing the cross-examination of Chen by the appellant’s counsel at committal. There is nothing to indicate that her Honour visited any consequence of this mild criticism of counsel upon the appellant. As is evident from the passages of her Honour’s sentencing remarks extracted above, the judge was concerned with the fact that the appellant, as opposed to Lu, ran a contested committal at all. As that inevitably involved the cross-examination of Chen, that fact was relevant to the appellant’s level of contrition.
Although it is similarly unnecessary to consider the application to add proposed ground 4, the factual basis underpinning it becomes relevant to the resentencing exercise consequent upon the success of ground 1. That basis may be summarised as follows.
On 22 July 2022 the appellant was assaulted by a fellow prisoner. The appellant and three others were playing cards. His partner in the game became angry and stood, preparing to fight. When the appellant turned to walk away, his assailant hit him from behind with a coffee cup (or similar object). He was struck to his right eye.
The appellant was taken to hospital and underwent two surgeries on 23 July 2022. One cleaned and repaired the lacerations to his face and head, including behind his right ear and immediately above and beside his right eye. The other attempted to repair his right eye and eyelid. A third operation followed a few days later to remove protruding stitches from his eyeball.
The appellant remained in hospital for a period of two weeks. He suffered significant pain. He has lost sight in his right eye and will be fitted with a prosthetic eyeball. He now has trouble judging distance and the speed at which someone approaches him. He cannot play sport. He feels more vigilant around people than he did prior to the incident. He is medically unfit to work within the prison. His experience of custody is significantly more onerous than before.
This serious post-sentence incident has assumed importance in the resentencing process.

Conclusion

The appeal is allowed. The sentence imposed on the appellant in the County Court on 2 December 2021 is set aside. The appellant will be resentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Kidnapping	25 years	4 years and 6 months	Base
Related Summary Offence
3	Possess imitation firearm without exemption or approval	240 penalty units or 2 years’ imprisonment	2 months’ imprisonment	2 months
Total Effective Sentence:		4 years and 8 months
Non-Parole Period:		3 years
Section 6AAA Statement:		Total Effective Sentence: 6 years and 6 months Non Parole-Period: 4 years and 3 months

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[2023] VSCA 62

30 March 2023