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 then  asked  her  to  drive  him  to  Hamilton.  She  refused.  At  this, Mr Wong-Tung became angry and snatched the victim’s phone from her. He loaded his firearm, pointed it at her and said she had to take him to Hamilton. After stopping off at another address Mr Wong-Tung drove to Hamilton with the victim in the car.

[10]   Throughout the rest of the night Mr Wong-Tung continued to drive the victim around to various addresses in Hamilton dealing in methamphetamine and picking up firearms and ammunition.

[11]   At one point, two of Mr Wong-Tung’s associates got into the car. One of them joined the victim in the back seat. He offered her methamphetamine. When she refused, he grabbed her by the hair, pushed her head against the window and forced her to smoke from the pipe.

[12]   Mr Wong-Tung’s associate then spread the victim’s legs with his hands and rubbed her genitalia through her clothing. When he could not undo the buttons to her pants he put his hand under her jumper and squeezed her breast. The two associates later got out of the vehicle and Mr Wong-Tung continued to drive around Hamilton with the victim in the car.

[13]   The following morning Mr Wong-Tung and the victim returned to Auckland. When the car was pulled over to the side of a road, the victim’s father happened to be passing and recognised the car. Mr Wong-Tung sped off with the victim and stopped at a nearby house. He removed his possessions from the car and told the victim to drive away, warning her that his friends were following her and that they would “come for [her]” if she told anyone what had happened.

Sentence indication

[14]   The Judge gave a sentence indication on 31 July 2023 with the benefit of submissions from both the Crown and the defence as well as a victim impact statement. Mr Wong-Tung accepted the sentence indication.

[15]   The Judge identified the following aggravating features of the offending: the persistent threat of violence (arising from the loaded firearm Mr Wong-Tung had pointed at the victim throughout the offending), the harm caused to the victim and the length of the detention overnight.

[16]   The Judge indicated a starting point of three years and six months’ imprisonment with a two month uplift to take into account previous offending while subject to a sentence.

[17]   It was acknowledged that a full 25 per cent guilty plea reduction would be available. As to the issue of further discounts, the Judge said she would not rule out a youth discount but said she would need some persuasion and it would likely be limited, given Mr Wong-Tung’s extensive criminal history and the current escalation in seriousness of his offending. The Judge was of the view that the escalation meant other sentencing principles, especially protection of the community, needed to be prioritised. She considered it was perhaps possible for a reduction of around 10 per cent to reflect youth. The Judge also noted that other discounts might be available depending on information in reports prepared for sentencing.

Sentencing decision

[18]   At the time of sentencing the Judge had the following additional material available: a s 27 cultural report dated 16 November 2023; a Provision of Advice to the Courts (PAC) report dated 28 August 2023; a psychiatric report dated 29 August 2023; certificates of achievement from the Department of Corrections; and an acceptance letter from Grace Foundation into their residential rehabilitation and reintegration programme.

[19]   Having considered the cultural report the Judge acknowledged that there was a linkage between the offending and Mr Wong-Tung’s unstable and troubled background, a lack of education, and that he was a second generation gang member and had spent time in state care. The Judge also considered the psychiatric report which evidenced Mr Wong-Tung’s persistent symptoms of ADHD and some “mental health matters as  well”.2  The  Judge  referred  to  the  psychiatrist’s  opinion  that Mr Wong-Tung was likely to meet the criteria for anti-social personality disorder. The Judge viewed that as more in the nature of a “personality trait, not an illness that can be  treated”  and  that  this  in  itself  was  a  big  cause  for  concern  in  terms  of   Mr Wong-Tung’s rehabilitative prospects.3

[20]   As indicated in the sentence indication the Judge considered it was appropriate to prioritise other sentencing principles (ie deterrence) and the protection of the community and the  victim  given  the  “major  escalation  in  the  seriousness  of  [Mr Wong-Tung’s] offending”.4

[21]The end sentence was constructed on the following basis:

(a)a starting point of three years and six months’ imprisonment;

(b)an uplift of two months for previous offending and offending while subject to a sentence;

2 At [15].

3 At [17].

4 At [16].

(c)a 25 per cent discount for guilty plea; and

(d)a combined 15  per  cent  discount  for  personal  factors  including  Mr Wong-Tung’s youth, cultural factors and matters contained in the psychiatric report.

[22]   The Judge reached an end sentence of two years and two months’ imprisonment. In doing so the Judge applied the Moses5 methodology incorrectly.  Mr Wong-Tung benefited from that error. The end sentence, using the numbers adopted by the Judge should have been two years and three months’ imprisonment. The Judge incorrectly added the uplift in [21(b)] above for personal aggravating factors to the starting point in [21(a)] above and then deducted the discount for personal mitigating factors from that total. Applying Moses correctly, the discount for personal mitigating factors is calculated against the starting point in [21(a)] above, not against the total of [21(a)] and [21(b)].6

The law

[23]   There is a right of appeal against sentence7 which exists even when a sentence indication has been given and accepted.8

[24]   The appeal court must allow the sentence if it is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.9 In any other case the appeal must be dismissed.10 Even if there is an error of the requisite kind, the appellate court considers the result, rather than the process by which the sentence is reached. The appellate court will not intervene if the sentence is within the range that can properly be adjusted by accepted sentencing principles.11

5      Moses v R [2020] NZCA 296.

6      See for example: Gray v R [2020] NZCA 548 at [31] and Stuart v R [2021] NZCA 539 at [14]– [16].

7      Criminal Procedure Act 2011, s 244.

8      Section 245.

9      Section 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

[25]   In this case the assessment I must make is whether the end sentence of two years and two months’ imprisonment is manifestly excessive.

Starting point

[26]   Mr Piho, counsel for the respondent, submits that the discounts applied by the Judge were adequate. Further, even if more generous discounts could have been given for personal mitigating factors,12 the end sentence was well within range as the starting point adopted was considerably lower than was available to the Court. Mr Piho submits a global starting point in the range of four years to four years and six months would have been justified for a protracted kidnapping where a firearm was used.

[27]   On the other hand, Ms Shanahan submits on behalf of Mr Wong-Tung that there can be an infinite variety of circumstances which underlie the crime of kidnapping. She submits the starting point adopted by the Judge is consistent with similar case law.13

[28]   I accept that a starting point of around four years would have been available having regard to the following factors:

(a)The length of the detention: the victim was detained for a significant period. She was forced to drive to Hamilton and was detained overnight. She was only able to escape from Mr Wong-Tung the next morning after being driven back to Auckland.

(b)The presence of a firearm and threat of violence: Mr Wong-Tung used a loaded firearm to compel the victim to allow him to use her vehicle for the evening. With that threat having been made even its presence in the car would have had an effect on the victim throughout the detention.

(c)The extent of the harm: the victim impact statement revealed that the victim suffered significant emotional harm as a result of the offending.

12     That submission is made without accepting the discounts were inadequate.

13     R v Stephenson [2018] NZHC 2628; Anguna v R [2020] NZCA 127.

Mr Wong-Tung’s offending put the victim in a vulnerable position when she was assaulted by one of Mr Wong-Tung’s associates and forced to consume methamphetamine. While Mr Wong-Tung did not himself commit these acts against the victim, his offending put the victim in a position where she was unable to resist the offending by Mr Wong-Tung’s associate.

[29]   I make the four year assessment having regard to R v Stephenson14 where a five year starting point was adopted on the lead charge of kidnapping. The offending was more serious in that case and a starting point of four years in the instant case recognises that distinction. I consider four and a half years as submitted by Mr Piho would be too high.

Discounts for personal factors

[30]   Ms Shanahan submits that the Judge erred in giving inadequate discounts for Mr Wong-Tung’s personal factors, namely his youth, cultural background and psychiatric factors. Ms Shanahan submits there was no reason for the decision to combine these factors to one global discount of 15 per cent as opposed to separate discounts. While acknowledging there is a degree of overlap, Ms Shanahan submits that these features are largely distinctive of each other and warrant individual discounts.

[31]   In the alternative, Ms Shanahan submits if this Court is minded to agree with the Judge’s approach in applying a global discount, a discount of at least 20 to 30 per cent would have been appropriate.

[32]It is apparent from the psychiatric and cultural reports that:

(a)Mr Wong-Tung had an unstable upbringing. He was exposed to substance abuse by both his parents from a very young age and both of his parents served terms of imprisonment at various points during his

14     R v Stephenson, above n 13.

childhood which resulted in him spending a significant part of his upbringing in youth justice institutions and foster homes.

(b)As a consequence of the instability in Mr Wong-Tung’s home life and upbringing, he struggled to settle at school and has not received a proper education.

(c)When in state care during his childhood, Mr Wong-Tung was bullied and abused.

(d)Mr Wong-Tung’s mother drank heavily while she was pregnant. The report writer notes that this puts him at risk of FASD.

(e)Mr Wong-Tung was heavily exposed to gangs during his upbringing as his father was involved in the Mongrel Mob.

(f)Arising from his exposure to methamphetamine and alcohol use by others, Mr Wong-Tung started drinking alcohol and smoking cannabis at a very young age. He then started using methamphetamine.

[33]   There is no doubt the Judge was correct to find that there was a clear linkage between the relevant background factors and the offending. The Judge also added into the mix Mr Wong-Tung’s personality disorder diagnosis. However, in cases of serious violence, cultural factors will have a lesser effect on sentencing because the considerations of denunciation and community protection prevail.15 All the purposes and principles of sentencing must be considered. As was stated in Cossey v R “mitigating factors cannot just be accumulated without regard to whether the final sentence adequately serves other sentencing principles such as accountability”.16

[34]   As to any discount  for  youth,  that  needs  to  be  seen  in  the  context  of  Mr Wong-Tung’s criminal history. At the age of 22 years (20 years at the time of the offending) Mr Wong-Tung has amassed 37 convictions in the District Courts. He has

15     Davidson v R [2020] NZCA 230 at [33].

16     Cossey v R [2021] NZCA 677 at [15].

57 Youth Court notations, including for aggravated robbery. His prior convictions for unlawfully taking a motor vehicle (one conviction in 2022, two convictions in 2021 and one conviction in 2019) and possession of an offensive weapon in 2021 are relevant given the use of a firearm in the victim’s vehicle in this case. Additionally, the offending occurred while Mr Wong-Tung was subject to sentences for that offending.

[35]   I accept Mr Piho’s submission that while Mr Wong-Tung is entitled to a discount for youth, such a discount must be tempered by Mr Wong-Tung’s substantial criminal history.17 As Mr Piho submits, this is a factor the Judge was alive to when in her sentence indication she said she would not “rule out a youth discount,” but it would “likely be limited given Mr Wong-Tung’s significant history and this escalation in seriousness of offending”.

[36]   There is nothing inherently wrong with giving a combined discount for the three factors Mr Wong-Tung relied on in mitigation. Ms Shanahan accepted that in oral submissions.

[37]   Mr Piho submits that the assessment of an appropriate allowance to recognise matters in a s 27 report is a very fact-specific exercise. While making that submission Mr Piho refers to three Court of Appeal decisions where the Court considered discounts of 15 per cent for the offender’s personal and cultural background were appropriate. Each involved an offender who had suffered considerable deprivation in their early lives.18

[38]   However, in the three cases referred to by Mr Piho, the offenders were adult offenders and accordingly there was no need for the Court to consider a youth discount.

[39]   Arguably 15 per cent was on the low side and a 20 per cent discount for the three factors combined may have been more appropriate. That is the figure at the lower end of the range Ms Shanahan promotes. However, even with a total discount

17     Ross v R [2013] NZCA 263 at [17].

18     Harris v R [2021] NZCA 143 at [28]; Waho v R [2020] NZCA 526 at [33]; and Davidson v R, above n 15 at [34].

of 45 per cent (20 per cent plus the 25 per cent for a guilty plea) and adopting the four year starting point, which I consider would have been available to the Judge, and adding the uplift of two months for prior convictions (no issue was taken with the uplift), this results in a sentence of two years and four months’ imprisonment. This is, in fact, longer than the sentence imposed by the Judge, and longer than the sentence that would have been imposed had the Judge applied the Moses methodology correctly.19

[40]   For all the above reasons it cannot be said that the sentence was manifestly excessive on this ground. However, it is necessary to go on and consider the second ground of appeal before reaching a final conclusion on this issue.

Second ground of appeal

[41]   Ms Shanahan submits that Mr Wong-Tung’s sentence of imprisonment does not appropriately recognise his needs for rehabilitation and support with reintegrating into the community. She submits that any punitive element for the purposes of sentencing has already been addressed by the length of time Mr Wong-Tung has spent in custody. Instead, the focus should be on Mr Wong-Tung’s rehabilitative prospects and need for support within the community.

[42]   Ms Shanahan submits that Mr Wong-Tung requires support and access to rehabilitative courses and programmes for his safe reintegration into the community, as evidenced by the cultural and psychiatric reports. She submits that the opportunities for rehabilitation in a maximum security prison, where Mr Wong-Tung is serving his sentence, are limited. Rather, Mr Wong-Tung’s rehabilitation needs would be more appropriately addressed from within the community. It is contended, notwithstanding his extensive criminal history, that Mr Wong-Tung has a strong chance of rehabilitation. His mother and brother are willing to assist him in that regard.

[43]   Ms Shanahan submits that had the Judge imposed a sentence of 24 months, this would have had a significant effect in practice because at the time of sentencing,

19     Refer [22] above.

Mr Wong-Tung would have served his sentence due to the time he had spent in custody. With a 26 months’ sentence his statutory release date is 7 January 2025.

[44]   The Judge referred to the need to take into account rehabilitation and reintegration. She said she was impressed that Mr Wong-Tung had made a start but it was only a very small start.

[45]   I do not consider the Judge was wrong in deciding it was appropriate to prioritise other sentencing principles. While serving a sentence for dishonesty offending Mr Wong-Tung kidnapped a young woman overnight at gunpoint. The nature and scale of Mr Wong-Tung’s offending means that the sentencing purposes of accountability, denunciation and deterrence are engaged.20

Result

[46]   The sentence of two years and two months’ imprisonment is not manifestly excessive.

[47]The appeal is dismissed.

Gordon J

20     Sentencing Act 2002, s 7(1)(a), (e) and (f).