Wong v Police

[2023] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-78

[2023] NZHC 1677

BETWEEN

TECK CHUONG WONG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 June 2023
Appearances:	C G Nolan for Appellant S J Mallett for Crown
Judgment:	30 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 June 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1]                  Teck Wong pleaded guilty to charges of intentionally making an intimate visual recording,1 and indecent assault.2

1      Crimes Act 1961, s 216H – maximum sentence of three years’ imprisonment.

2      Section 135 – maximum sentence of seven years’ imprisonment.

WONG v NEW ZEALAND POLICE [2023] NZHC 1677 [30 June 2023]

[2]                  He was sentenced in the District Court to 10 months home detention.3 He appeals his sentence on the grounds:

(a)the starting point adopted was too high;

(b)there was insufficient credit for personal mitigating factors; and

(c)the least restrictive sentence was not imposed in the circumstances.

Facts

[3]                  Mr Wong is an Uber driver. At around 3:20am on Sunday 14 August 2022, the victim used the Uber app to order a ride to a Rangiora address.

[4]                  Mr Wong was working at the time and accepted the ride. He picked the victim up at around 3:25am outside a bar in Christchurch. He drove the victim to the Rangiora address. Once they arrived, she asked him if she could wait in his car until her friends arrived however, she proceeded to fall asleep in the passenger seat.

[5]                  The victim was wearing a skirt which shifted upwards while she was sleeping, exposing her underwear. Mr Wong reached across and pulled the underwear to the side, exposing her vagina and touching her genitals. He then used his cell phone to take three images of the victim’s vagina.

District Court decision

[6]Mr Wong was sentenced by Judge Couch on 11 May 2023.

[7]                  The Judge firstly noted the serious nature of the offending. It involved contact (albeit brief) with the victims’ genitals in a situation where there could not possibly have been a belief that the victim was consenting as she was asleep. The second factor noted was the breach of trust. Passengers in taxis and similar vehicles are entitled to feel safe from interference or attack. The Judge said that Mr Wong took advantage of the victim’s vulnerability and also noted that she was only 18 years old.

3      Police v Wong [2023] NZDC 9180.

[8]                  The Judge discussed the serious impact that this has had on the victim and the fact she remains seriously affected.

[9]                  Finally, the taking of photos was held to be a further seriously aggravating factor.

[10]              The Judge considered the written submissions and the cases which were cited in them. However, he said none of the cases drew any real similarity to this situation and so he considered the facts in light of the penalties for this type of offending, and in light of the aggravating features he had identified.

[11]              For the totality of the offending, a starting point of two years and six months’ imprisonment was taken.

[12]There were held to be no personal aggravating factors.

[13]              By way of mitigation, guilty pleas were entered promptly and the sentence was thus reduced by 25 per cent. Mr Wong has no previous convictions, and has been granted New Zealand citizenship meaning that he satisfied the character requirements of the Immigration Act 2009. He has also made a payment to the victim of $1000 for emotional harm. For these factors, the sentence was reduced by five per cent. The end sentence was thus 21 months’ imprisonment.

[14]              Mr Nolan for the defendant submitted that he was remorseful. However, the Judge saw little or no genuine recognition of the harm caused and so allowed no reduction in relation to remorse.

[15]              As the end sentence was that of less than two years’ imprisonment, the Judge considered whether a sentence of home detention may be appropriate. He considered that in all the circumstances, home detention was the least restrictive sentence which was appropriate. Mr Wong was sentenced to 10 months of home detention. There was also an order made that all images of the victim on the defendant’s phone were to be deleted by police before the phone was returned to the defendant.

Principles on appeal

[16]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.5 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.

Submissions

Appellant’s submissions

[17]              Mr Nolan submitted that the starting point was too high and referred to various cases which he said demonstrated this.

[18]              First, in Ruiz-Mio v Police,6 a starting point of three years’ imprisonment was adopted for one charge of indecent assault and one charge of attempting to make an intimate visual recording. The appellant there attempted to film up a 14-year-old girl’s skirt. On another occasion, the defendant posed as a security guard and approached a 16-year-old girl. He indicated he would search her bags in the fitting room and while in there he touched her breasts, squeezed her buttocks and tried to touch her vagina under the pretext of checking whether she had stolen anything.

[19]              In Prasad v R, the appellant touched the victim on the back on the inside of her clothing.7 The victim felt uncomfortable and left to check on her daughter, closing the door behind her. The appellant followed and entered the bedroom, pushing her onto the bed and pulling up her top and bra. He fondled her breast and sucked on her nipple despite the victim telling him to stop. Eventually he did stop and kissed her on the back. He said he wanted to spend a night with her and at that point he stood up, exposed

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Ripia v R [2011] NZCA 101 at [15].

6      Ruiz-Mio v Police [2014] NZHC 2902.

7      Prasad v R [2020] NZHC 1207.

his penis and asked the victim for oral sex. She protested but he took her hand and placed it on his penis. At one stage he placed his hand on her genital area over the top of her pants before she pushed his hand away. A starting point of 18 months’ imprisonment was adopted and the sentence imposed was six months’ home detention which allowed for the time he had spent in prison.

[20]              In Aylwin v R, a sentence of 100 hours’ community work was imposed for one charge of indecent assault.8 The victim was asleep in bed at a friend’s house when the appellant got into the bed in just his underwear. Early the following morning there was physical contact between them. However, the nature of this was disputed. Although the complainant alleged he pulled her underwear aside and touched her vagina, he was only convicted on a charge of touching her stomach which reflected his version of events. The Court of Appeal described the incident as being “very much at the lower [end] of the scale”.9

[21]              In R v Popeea, the offending occurred on board a cruise liner travelling to New Zealand.10 The defendant and the victim had been socialising in a group, drinking alcohol. The defendant then invited the victim to his cabin where he began to remove some of his clothing and have the victim touch his penis while he touched her genitalia. The victim explained that she was intoxicated and afraid to resist. A starting point of six to seven months’ imprisonment was adopted here.

[22]              Mr Nolan points out that in most of these cases, a lower starting point was adopted and the case of Prasad involved more serious offending than in the present case. In his submission, a starting point of 18-20 months’ imprisonment was more appropriate, particularly noting that the Court of Appeal, in S (CA227) v R, said that given the sheer variety of indecent assaults, a tariff would be unworkable but a general range for indecent assault should be between 6 months and two years’ imprisonment.11

[23]              In terms of mitigating factors, Mr Nolan submitted that the Judge did not give any reduction on account of remorse when there should have been. It is submitted that

8      Aylwin v R [2007] NZCA 458.

9 At [47].

10      R v Popeea [2015] NZHC 1882.

11     S (CA227) v R [2017] NZCA 459.

Mr Wong has reported that he understands what he has done is wrong. While not expressing direct remorse or empathy for the victim, being more focussed upon the loss of his licence, this could have been due to a restricted grasp of the English language. Furthermore, Mr Nolan submits that by attending a restorative justice conference and paying an emotional harm payment, Mr Wong tangibly demonstrated his remorse. He suggests discounts of five – 10 per cent should have been allowed for both lack of previous convictions and remorse.

[24]              Finally, Mr Nolan submits that the least restrictive sentence was a sentence of community detention and supervision, as was recommended in the pre-sentence report.

Respondent’s submissions

[25]              In relation to the starting point, Mr Mallett, for the respondent, does not consider that any of the cases cited by the appellant assist the appellant on appeal. Instead, they are consistent with the starting point adopted by the sentencing Judge. He argues that the present offending was more serious than in Ruiz-Mio v Police where a starting point of three years imprisonment was adopted. This is because in this case:

(a)the appellant successfully took multiple pictures of the victim’s exposed vagina;

(b)the victim was asleep at the time the offending commenced and also inside the appellant’s vehicle and thus highly vulnerable;

(c)the relationship of Uber driver and passenger gives rise to a breach of trust which is not present in the facts of Ruiz-Mio; and

(d)the appellant touched the victim’s exposed genitals.

[26]              In any event, even if the Court considers that Ruiz-Mio is more serious, this is reflected in the higher starting point adopted.

[27]Mr Mallett also submits that the present offending is more serious than in

Prasad because:

(a)it is aggravated by the taking of intimate visual recordings;

(b)there was not the same age disparity in Prasad; and

(c)the victim in Prasad was not vulnerable and there was not a breach of trust.

[28]              Mr Mallett does however, accept, that the offending in Prasad was more persistent and occurred in the victim’s home.

[29]              Finally, Mr Mallett says the case of Aylwin v R bears no resemblance to the present offending. No starting point was adopted and, on appeal, it was noted that it was an offence “very much at the lower of the scale”.

[30]              With regards to the credit for personal mitigating factors, the respondent rejects the submission there should be further credit available for remorse, saying an offender is not entitled to a separate discount for merely professing remorse and the threshold is not met in this case.

[31]              Finally, with regards to whether community detention was the least restrictive outcome, Mr Mallett notes that no reasons are given for that assertion. Furthermore, community detention cannot be imposed for a period longer than six months. It was open for the Court to conclude that such a sentence would not meet the purposes and principles of sentencing.

Analysis

[32]              As counsel note, there is no tariff decision for such offending. The starting point is to be assessed having regard to the aggravating and mitigating features of the offending and in light of the starting points adopted for comparable offending.

[33]              Here, I consider the Judge correctly identified the following factors as relevant aggravating factors:

(a)The harm caused as a result of the offending. The victim impact statement outlines the deep anxiety and fear that the victim suffers due to the offending. When she is out in the evenings, she is terrified that she might see him and her heart races when she sees similar cars to that which Mr Wong drove. She has trouble sleeping and experiences nightmares. Her counsellor has concluded that she is suffering from anxiety as a result of the offending and that this will be a long-lasting issue. The victim has resorted to alcohol as a coping mechanism and can no longer sit in the front seat of an Uber.

(b)The abuse of trust. The relationship between a taxi/Uber driver and a passenger is one of trust. The passenger trusts the driver to get them to their  destination  safely.  This  trust  was  breached  as  a  result  of  Mr Wong’s actions.

(c)The victim was particularly vulnerable. Here, the victim was intoxicated and asleep at the time of the offending, placing her in a position of extreme vulnerability.

(d)The taking of photographs was a seriously aggravating feature which needed to be reflected in the starting point for the totality of the offending.

[34]              I do not consider the cases relied on by the appellant are particularly helpful in assessing a starting point for the reasons given by the respondent. In any event, to the extent comparisons can be drawn, they tend to confirm the starting point was appropriate.

[35]              Another case which I consider is more relevant is Mohammed v R, where the defendant was a taxi driver.12 The complainant got into the front seat and had been

12     Mohammed v R [2023] NZCA 119.

drinking. She gave the address of her destination but the driver detoured to buy the complainant a bottle of wine and then encourage her to drink it which she did. During this time, she became more intoxicated and messaged her friends and husband. The driver was playing music and sang explicit songs directed at the complainant, singing lyrics such as “I want to fuck you”. He also leaned over and brushed his hand over her breasts to which she did not consent. She then became drowsy and fell asleep. The defendant stopped the car, put his hand into her underwear and ran his finger around the exterior of her genitals. This woke her up and he moved his hands away. When she subsequently fell asleep again later, he placed his hand into her underwear again. She grabbed his arm to stop him and called the police from the car. A starting point of 24 months’ was not challenged on appeal, nor was the requirement to pay

$7,000 in reparation for emotional harm to the victim.

[36]              I consider that the present offending is similar to that in Mohammed v R. While Mr Wong did not supply the victim with alcohol or make suggestive comments, the nature of the offending is similar in that it involved taking advantage of an intoxicated and sleeping taxi passenger. Mr Wong’s offending had the added feature in that he took pictures of the victim’s genitalia. This is a far more serious example of an intimate visual recording than, say, the example in Ruiz-Mio of trying to film up a skirt. I am satisfied that a starting point of two years six months appropriately reflects the seriousness of the offending.

[37]              The starting point then has to be adjusted to reflect the aggravating and mitigating factors personal to the offender, together with any guilty plea discount.

[38]              The Judge’s decision to reduce the sentence by five per cent to take into account the fact the defendant has no previous convictions, and has satisfied the character requirements of the Immigration Act and has made a payment of $1000, was at the lower end of the available range, but not in error, subject to the question of whether there was genuine remorse.

[39]              Mr Wong participated in a restorative justice process although the victim declined to be present. Instead, her views were represented by a specialist victim support person. While the pre-sentence report states Mr Wong did not express direct

remorse or empathy for the victim and he minimised his offending behaviour, I consider the Restorative Justice Community Panel Conference Report and the accompanying letter written by Mr Wong do evidence genuine concern for the victim. Mr Wong, with his wife, fronted up to a restorative conference where he frankly and honestly talked about his offending. He showed some ability to understand the hurt he had caused, saying he had made his wife “worry” and he had made the victim feel “angry and hurt” and that he owed the victim an apology, saying he was “really sorry for what it cost her and the impact to her or to her family”. The outcomes of the conference included that he agreed to be assessed for counselling or treatment and to engage in any treatment recommended by the assessment. He also agreed to pay

$1,000 in reparation to the victim and to provide a copy of his apology letter. In that letter he again apologised for his actions and said he felt extremely ashamed of what he had done to her, saying it was “rude and stupid”. He also said the incident made him understand that he had to be “more respectful to women in the future” and it also made him realise how important his wife and daughter was to him.

[40]              Thus, while the pre-sentence report was sceptical of Mr Wong’s remorse, I am satisfied he gained some, albeit imperfect, insight into the consequences of his offending and attempted, in some tangible way, to address the harm he had done. In all those circumstances, I consider there should have been a discrete discount for remorse, in addition to a five per cent discount for previous good character.

[41]              However, even if that additional discount was allowed, it does not appear to me to impact on the final sentence. This is because the Judge imposed less than half of the nominal prison sentence as the end home detention sentence. From a starting point of 30 months, the combined 10 per cent discount for good character and remorse which I would allow takes the sentence down to 27 months and, with the 25 per cent discount for guilty plea, results in an end sentence of just over 20 months. That converts to a home detention sentence of 10 months. The ultimate question on appeal is whether the end sentence is appropriate and, despite the fact I would have given a discrete discount for remorse, I am satisfied it is.

[42]              The final issue is whether the sentence of home detention was the least restrictive sentence which is appropriate in the circumstances.13 The respondent points out that a sentence of community detention cannot be for a period of longer than    six months.14 That sentence clearly would not reflect the gravity of the offending and so can not meet the requirement of being a sentence that is appropriate in all the circumstances. While the sentence of home detention will interfere with Mr Wong’s employment prospects, that is an inevitable outcome of being sentenced appropriately for this offending.

Conclusion

[43]              For all these reasons, I am satisfied the end sentence imposed was appropriate and the appeal is dismissed.

Solicitors:

Crown Solicitor, Christchurch

Copy To:
C Nolan, Barrister, Christchurch

13     Sentencing Act 2002, s 8(g).

14     Section 69B.