WONG v NEW ZEALAND POLICE [2023] NZHC 1677

WONG v NEW ZEALAND POLICE [2023] NZHC 1677 [30 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-78[2023] NZHC 1677BETWEEN TECK CHUONG WONGAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June 2023Appearances: C G Nolan for AppellantS J Mallett for CrownJudgment: 30 June 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 30 June 2023 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Teck Wong pleaded guilty to charges of intentionally making an intimate visualrecording,1 and indecent assault.21 Crimes Act 1961, s 216H – maximum sentence of three years' imprisonment.2 Section 135 – maximum sentence of seven years' imprisonment.[2] He was sentenced in the District Court to 10 months home detention.3 Heappeals 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, thevictim 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 victimup at around 3:25am outside a bar in Christchurch. He drove the victim to theRangiora address. Once they arrived, she asked him if she could wait in his car untilher 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 theside, exposing her vagina and touching her genitals. He then used his cell phone totake 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 possiblyhave been a belief that the victim was consenting as she was asleep. The second factornoted was the breach of trust. Passengers in taxis and similar vehicles are entitled tofeel safe from interference or attack. The Judge said that Mr Wong took advantage ofthe 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 thefact she remains seriously affected.[9] Finally, the taking of photos was held to be a further seriously aggravatingfactor.[10] The Judge considered the written submissions and the cases which were citedin them. However, he said none of the cases drew any real similarity to this situationand so he considered the facts in light of the penalties for this type of offending, andin 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 wasthus reduced by 25 per cent. Mr Wong has no previous convictions, and has beengranted New Zealand citizenship meaning that he satisfied the character requirementsof the Immigration Act 2009. He has also made a payment to the victim of $1000 foremotional harm. For these factors, the sentence was reduced by five per cent. The endsentence was thus 21 months' imprisonment.[14] Mr Nolan for the defendant submitted that he was remorseful. However, theJudge saw little or no genuine recognition of the harm caused and so allowed noreduction in relation to remorse.[15] As the end sentence was that of less than two years' imprisonment, the Judgeconsidered whether a sentence of home detention may be appropriate. He consideredthat in all the circumstances, home detention was the least restrictive sentence whichwas appropriate. Mr Wong was sentenced to 10 months of home detention. Therewas also an order made that all images of the victim on the defendant's phone were tobe 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 CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.4 The focus is not on the process by which the sentence was reached, buton the correctness of the end result.5 In making this assessment, appellate courts donot interfere with the legitimate exercise of judicial discretion or indulge in meretinkering with the sentence.SubmissionsAppellant's submissions[17] Mr Nolan submitted that the starting point was too high and referred to variouscases which he said demonstrated this.[18] First, in Ruiz-Mio v Police,6 a starting point of three years' imprisonment wasadopted for one charge of indecent assault and one charge of attempting to make anintimate visual recording. The appellant there attempted to film up a 14-year-old girl'sskirt. On another occasion, the defendant posed as a security guard and approached a16-year-old girl. He indicated he would search her bags in the fitting room and whilein there he touched her breasts, squeezed her buttocks and tried to touch her vaginaunder 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 herclothing.7 The victim felt uncomfortable and left to check on her daughter, closing thedoor behind her. The appellant followed and entered the bedroom, pushing her ontothe bed and pulling up her top and bra. He fondled her breast and sucked on her nippledespite the victim telling him to stop. Eventually he did stop and kissed her on theback. He said he wanted to spend a night with her and at that point he stood up, exposed4 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 andplaced it on his penis. At one stage he placed his hand on her genital area over the topof 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 detentionwhich allowed for the time he had spent in prison.[20] In Aylwin v R, a sentence of 100 hours' community work was imposed for onecharge of indecent assault.8 The victim was asleep in bed at a friend's house when theappellant got into the bed in just his underwear. Early the following morning therewas physical contact between them. However, the nature of this was disputed.Although the complainant alleged he pulled her underwear aside and touched hervagina, he was only convicted on a charge of touching her stomach which reflectedhis version of events. The Court of Appeal described the incident as being "very muchat the lower [end] of the scale".9[21] In R v Popeea, the offending occurred on board a cruise liner travelling to NewZealand.10 The defendant and the victim had been socialising in a group, drinkingalcohol. The defendant then invited the victim to his cabin where he began to removesome 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 ofsix to seven months' imprisonment was adopted here.[22] Mr Nolan points out that in most of these cases, a lower starting point wasadopted and the case of Prasad involved more serious offending than in the presentcase. In his submission, a starting point of 18-20 months' imprisonment was moreappropriate, particularly noting that the Court of Appeal, in S (CA227) v R, said thatgiven the sheer variety of indecent assaults, a tariff would be unworkable but a generalrange 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 giveany reduction on account of remorse when there should have been. It is submitted that8 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 notexpressing direct remorse or empathy for the victim, being more focussed upon theloss of his licence, this could have been due to a restricted grasp of the Englishlanguage. Furthermore, Mr Nolan submits that by attending a restorative justiceconference and paying an emotional harm payment, Mr Wong tangibly demonstratedhis remorse. He suggests discounts of five – 10 per cent should have been allowed forboth lack of previous convictions and remorse.[24] Finally, Mr Nolan submits that the least restrictive sentence was a sentence ofcommunity detention and supervision, as was recommended in the pre-sentencereport.Respondent's submissions[25] In relation to the starting point, Mr Mallett, for the respondent, does notconsider 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 wherea starting point of three years imprisonment was adopted. This is because in this case:(a) the appellant successfully took multiple pictures of the victim'sexposed vagina;(b) the victim was asleep at the time the offending commenced and alsoinside the appellant's vehicle and thus highly vulnerable;(c) the relationship of Uber driver and passenger gives rise to a breach oftrust 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 isreflected in the higher starting point adopted.[27] Mr Mallett also submits that the present offending is more serious than inPrasad 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 oftrust.[28] Mr Mallett does however, accept, that the offending in Prasad was morepersistent and occurred in the victim's home.[29] Finally, Mr Mallett says the case of Aylwin v R bears no resemblance to thepresent offending. No starting point was adopted and, on appeal, it was noted that itwas an offence "very much at the lower of the scale".[30] With regards to the credit for personal mitigating factors, the respondent rejectsthe submission there should be further credit available for remorse, saying an offenderis not entitled to a separate discount for merely professing remorse and the thresholdis not met in this case.[31] Finally, with regards to whether community detention was the least restrictiveoutcome, 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 wasopen for the Court to conclude that such a sentence would not meet the purposes andprinciples of sentencing.Analysis[32] As counsel note, there is no tariff decision for such offending. The startingpoint is to be assessed having regard to the aggravating and mitigating features of theoffending and in light of the starting points adopted for comparable offending.[33] Here, I consider the Judge correctly identified the following factors as relevantaggravating factors:(a) The harm caused as a result of the offending. The victim impactstatement outlines the deep anxiety and fear that the victim suffers dueto the offending. When she is out in the evenings, she is terrified thatshe might see him and her heart races when she sees similar cars to thatwhich Mr Wong drove. She has trouble sleeping and experiencesnightmares. Her counsellor has concluded that she is suffering fromanxiety as a result of the offending and that this will be a long-lastingissue. The victim has resorted to alcohol as a coping mechanism andcan no longer sit in the front seat of an Uber.(b) The abuse of trust. The relationship between a taxi/Uber driver and apassenger is one of trust. The passenger trusts the driver to get them totheir destination safely. This trust was breached as a result ofMr Wong's actions.(c) The victim was particularly vulnerable. Here, the victim wasintoxicated and asleep at the time of the offending, placing her in aposition of extreme vulnerability.(d) The taking of photographs was a seriously aggravating feature whichneeded to be reflected in the starting point for the totality of theoffending.[34] I do not consider the cases relied on by the appellant are particularly helpful inassessing a starting point for the reasons given by the respondent. In any event, to theextent comparisons can be drawn, they tend to confirm the starting point wasappropriate.[35] Another case which I consider is more relevant is Mohammed v R, where thedefendant was a taxi driver.12 The complainant got into the front seat and had been12 Mohammed v R [2023] NZCA 119.drinking. She gave the address of her destination but the driver detoured to buy thecomplainant a bottle of wine and then encourage her to drink it which she did. Duringthis time, she became more intoxicated and messaged her friends and husband. Thedriver was playing music and sang explicit songs directed at the complainant, singinglyrics such as "I want to fuck you". He also leaned over and brushed his hand overher 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 fingeraround 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 underwearagain. She grabbed his arm to stop him and called the police from the car. A startingpoint 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. WhileMr Wong did not supply the victim with alcohol or make suggestive comments, thenature of the offending is similar in that it involved taking advantage of an intoxicatedand sleeping taxi passenger. Mr Wong's offending had the added feature in that hetook pictures of the victim's genitalia. This is a far more serious example of anintimate visual recording than, say, the example in Ruiz-Mio of trying to film up askirt. I am satisfied that a starting point of two years six months appropriately reflectsthe seriousness of the offending.[37] The starting point then has to be adjusted to reflect the aggravating andmitigating 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 intoaccount the fact the defendant has no previous convictions, and has satisfied thecharacter requirements of the Immigration Act and has made a payment of $1000, wasat the lower end of the available range, but not in error, subject to the question ofwhether there was genuine remorse.[39] Mr Wong participated in a restorative justice process although the victimdeclined to be present. Instead, her views were represented by a specialist victimsupport person. While the pre-sentence report states Mr Wong did not express directremorse or empathy for the victim and he minimised his offending behaviour, Iconsider the Restorative Justice Community Panel Conference Report and theaccompanying 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 andhonestly talked about his offending. He showed some ability to understand the hurthe 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 sorryfor what it cost her and the impact to her or to her family". The outcomes of theconference included that he agreed to be assessed for counselling or treatment and toengage 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 thatletter he again apologised for his actions and said he felt extremely ashamed of whathe had done to her, saying it was "rude and stupid". He also said the incident madehim understand that he had to be "more respectful to women in the future" and it alsomade 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 amsatisfied he gained some, albeit imperfect, insight into the consequences of hisoffending and attempted, in some tangible way, to address the harm he had done. Inall those circumstances, I consider there should have been a discrete discount forremorse, 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 tome to impact on the final sentence. This is because the Judge imposed less than halfof the nominal prison sentence as the end home detention sentence. From a startingpoint of 30 months, the combined 10 per cent discount for good character and remorsewhich I would allow takes the sentence down to 27 months and, with the 25 per centdiscount for guilty plea, results in an end sentence of just over 20 months. Thatconverts to a home detention sentence of 10 months. The ultimate question on appealis whether the end sentence is appropriate and, despite the fact I would have given adiscrete discount for remorse, I am satisfied it is.[42] The final issue is whether the sentence of home detention was the leastrestrictive sentence which is appropriate in the circumstances.13 The respondent pointsout that a sentence of community detention cannot be for a period of longer thansix months.14 That sentence clearly would not reflect the gravity of the offending andso can not meet the requirement of being a sentence that is appropriate in all thecircumstances. While the sentence of home detention will interfere with Mr Wong'semployment prospects, that is an inevitable outcome of being sentenced appropriatelyfor this offending.Conclusion[43] For all these reasons, I am satisfied the end sentence imposed was appropriateand the appeal is dismissed.Solicitors:Crown Solicitor, ChristchurchCopy To:C Nolan, Barrister, Christchurch13 Sentencing Act 2002, s 8(g).14 Section 69B.