Wong-Tung v The King - [2024] NZHC 473

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-650

[2024] NZHC 473

BETWEEN
SOLOMON WONG-TUNG

Appellant

AND

THE KING

Respondent

Hearing: 4 March 2024

Appearances:

S Shanahan on behalf of A Bloem for Appellant C Piho for Respondent

Judgment:

7 March 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 7 March 2024 at 10 am

Registrar/Deputy Registrar Date:

Solicitors:
Bloem & Associates, Auckland Kayes Fletcher Walker, Auckland

WONG-TUNG v R [2024] NZHC 473 [7 March 2024]

[1] The appellant, Solomon Wong-Tung, was sentenced to two years and two months’ imprisonment on 5 December 2023 on one charge of kidnapping by Judge (now Justice) Grau in the Manukau District Court1 after Mr Wong-Tung had accepted an earlier sentence indication.

[2]Mr Wong-Tung now appeals his sentence on two grounds as follows:

(a)the Judge erred by granting inadequate discounts for youth, cultural and psychiatric factors; and

(b)the Judge erred by not placing enough weight on the sentencing purposes and principles of rehabilitation, reintegration and imposing the least restrictive outcome appropriate in the circumstances.

[3] Mr Wong-Tung does not take issue with the starting point but says that as a result of the two alleged errors above, the sentence imposed was manifestly excessive.

[4]The respondent’s position is that:

(a)the Judge expressly considered Mr Wong-Tung’s youth, cultural and psychiatric factors (such that a discount of 15 per cent for these factors was granted). A discount for youth was generous in the circumstances given Mr Wong-Tung’s extensive criminal history; and

(b)there was no error arising from the asserted failure to consider the principles of rehabilitation and reintegration in circumstances where the Judge adopted a particularly lenient starting point of three years and six months. A starting point in the range of four years to four years and six months’ imprisonment was available.

[5] Accordingly, the respondent’s position is that the end sentence cannot be said to be manifestly excessive and the appeal should be dismissed.

1 New Zealand Police v Solomon Tereoiti Wong-Tung [2023] NZDC 28112.

Background

[6] I set out a summary of the offending based on the summary of facts which Mr Wong-Tung is taken to have accepted when entering his guilty plea.

[7] In the early evening of 10 May 2022 the victim left her home to go to work. At the top of the street Mr Wong-Tung waved down her vehicle, spoke to her and said he knew her brother. He asked her to take him to get his phone. The victim reluctantly agreed.

[8] Mr Wong-Tung then asked the victim to drive him to various addresses in Auckland. He told the victim that members of a rival gang, the Killer Beez, had gone to his sister’s address to look for him and that he needed to arm himself in retaliation. He showed the victim a firearm which he loaded and unloaded.

[9] Mr Wong-Tung then directed the victim to drive to his father’s house in Māngere. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 473
Decision Date: 7 March 2024

CaseChat Overview and Summary

Solomon Wong-Tung appeals his two-year-and-two-month imprisonment sentence for kidnapping, imposed by Judge Grau in the Manukau District Court. Wong-Tung's appeal grounds are that the Judge granted inadequate discounts for youth, cultural, and psychiatric factors and did not sufficiently consider the sentencing purposes and principles of rehabilitation, reintegration, and imposing the least restrictive outcome appropriate in the circumstances. The respondent argues that the Judge adequately considered Wong-Tung's youth, cultural, and psychiatric factors, granting a 15% discount, and that the sentence was appropriate given the escalation in the seriousness of the offending and the need to prioritize other sentencing principles such as deterrence and community protection.

The court examined the evidence regarding Wong-Tung's background, including his unstable upbringing, exposure to substance abuse, and involvement in gangs. It considered the psychiatric report which indicated symptoms of ADHD and potential anti-social personality disorder. The court noted the Judge's adoption of a starting point of three years and six months, an uplift of two months for previous offending, a 25% discount for a guilty plea, and a 15% discount for personal factors. However, the court found an error in the application of the Moses methodology, resulting in a sentence that should have been two years and three months, not two years and two months. Despite this error, the court concluded that the sentence was not manifestly excessive, considering the nature and scale of the offending, which involved a significant threat of violence and prolonged detention of the victim.

Regarding the second ground of appeal, the court found that the Judge appropriately prioritized sentencing principles such as accountability, denunciation, and deterrence. It concluded that the sentence adequately addressed Wong-Tung's rehabilitative prospects and needs for reintegration into the community. The appeal was dismissed.

Orders