THE QUEEN v IVAN CHRISTOPHER WONG [2001] NZCA 73 (21 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca458/00

THE QUEEN

V

IVAN CHRISTOPHER WONG

Hearing:	19 March 2001
Coram:	Tipping J
	Robertson J
	Young J
Appearances:	F Tuiasau for Appellant
	J C Pike for Crown
Judgment:	21 March 2001

judgment of the court DELIVERED BY YOUNG J

[1] Ivan Charles Wong appeals against a sentence of 3 months periodic detention imposed on him in the District Court at Wellington on a charge of assaulting a female.He had been convicted by a jury.

[2] The offence took place on 4 April 2000.The appellant was flatting with the complainant and another man.There had previously been a relationship between the appellant and the complainant but that had ended about a year before the assault.

[3] In her sentencing remarks the Judge described the assault in this way:-

This offence occurred on 4 April this year. The victim was your flatmate. There was a dispute between you over a clothes dryer. You left the room and then returned.The evidence of the complainant and another flatmate was that you were angry and that you either pushed her off the bar stool on which she was sitting, or picked her up from where she was sitting and forcibly threw her to the ground. When she was on the ground, you verbally abused her, saying such things as, "I will rip your pretty little face off, so your pretty little face is not going to be so pretty any more".You also kicked the breakfast bar, which she was lying against, with your foot, in the vicinity of her head.

I accept that the complainant legitimately feared that you were going to take the matter further and that you may have actually kicked her head.It was an issue for the jury as to whether or not you actually touched her, and whether the charge of assault was also made out on the basis of your threatening behaviour.

By your own admission, it seems to me that the extended meaning of assault was made out, and I accept that the verdict of the jury was an appropriate one on the facts.

[4] The basis on which the Judge sentenced the appellant is not entirely clear from these remarks.The Crown case was that there had been an application of force (involving either a push or something worse) at the outset of the incident - an application of force which resulted in the complainant winding up on the floor.It seems, as well, that the Crown also relied, in the alternative, on the contention that the appellant was guilty, at the very least, of assault in the form of threatening behaviour.The Judge was of the view that the appellant admitted conduct within "the extended meaning of assault".She did not address directly whether she was satisfied that an assault involving actual physical violence had been made out.

[5] In those circumstances,the appropriate course is to determine the appeal on the assumption that the appellant was convicted on the basis of an assault involving threatening behaviour, including the verbal abuse to which the Judge referred to in her remarks, but no physical contact involving violence between the appellant and the complainant.

[6] The trial was a short one.The jury returned with its verdict on the morning of 24 November 2000, the second day of the trial.The Judge then directed that a stand down report be obtained from the community probation service and sentenced the appellant on the afternoon of 24 November.

[7] The pre-sentence report writer commented:-

Mr Wong was found guilty by a defended trail [sic], therefore the Court is aware of the details of the offence. Despite this guilty finding, Mr Wong maintains his innocence.He appeared very distressed at the interview about the guilty finding and stated repetitively that he was not guilty of the offence.Though discussions he did however admit that he had pointed his finger at her face and this caused her to flinch and fall off the chair.He also advised that he had kicked the wall but that he had not kicked it near her face.He reported that he could now understand that she might have felt distressed when he kicked the wall.He held a lot of anger towards the victim in this matter and stated that he "never wants to see her again".

...

Supervision was canvassed with Mr Wong.Mr Wong is not considered a suitable candidate for a sentence of Supervision. He stated that he would not be prepared to undertake an anger management course or counselling as he feels he "could not benefit" from such course, as he does not have a "problem with anger or violence".He further stated that he believes that "nobody" can teach him about anger management and controlling his temper, as he has learnt all he can about his area from Wai-Che-In and his doorman/bouncing work.

Mr Wong reports being in good physical health and there are no impediments to him undertaking a sentence of Periodic Detention.He did however state that should he get the hairdressing job, such as sentence would interfere with this employment as he would be required to work from Tuesday until Saturday. However his employment has not been confirmed. Mr Wong was very upset about the prospect of Periodic Detention and stated that he "would not do Periodic Detention or go to Prison".The consequences of not attending Periodic Detention if he was sentenced were canvassed with him, however, he appeared adamant he would not comply with the conditions of this sentence.

Advice

Given that Mr Wong has been found guilty on a violent offence, Community Service or a Fine are not considered appropriate.He also considered an unsuitable candidate for a sentence of Supervision, as he believes he does not have a problem with anger management or violence.

Although Mr Wong's has a very negative attitude towards compliance with a sentence of Periodic Detention, this is considered the most suitable sentence at this juncture.

[8] In her sentencing remarks the Judge said:-

Following the verdict, I stood you down to see a probation officer with a view to sentencing you today.I suggested to the probation officer that a sentence of supervision would be appropriate, with a referral to an anger management programme, or for anger management counselling. That option was canvassed with you.The probation officer has reported that you are not a suitable candidate for supervision.The basis for that view is that you have stated you are not prepared to undertake an anger management course or counselling as you do not have a problem with anger or violence.

You further stated to the probation officer that you believe that nobody can teach you about anger management and controlling your anger as you have learnt all that you can about this area by Tai Chi Chuan and your doorman/bouncer work.

I regret that you take that view because on the evidence that came out in the trial, it certainly seems to me that you would have benefited from taking the advice and counselling that would have been made available.But because of your attitude, I have to consider other sentencing options.In view of the seriousness of the charge, the imposition of a fine would not be appropriate, nor would a sentence of community service.

That leaves the only possible option being periodic detention.Your counsel accepts that that would be appropriate.That recommendation is also endorsed by Ms Guy for the Crown. I appreciate that it will involve some inconvenience to you and may cause you some difficulty in your employment.You are unemployed at the moment but you are hopeful of obtaining fulltime work in your occupation as a hairdresser.Any difficulties that you may have will simply have to be worked around because given that the matter went to trial, the verdict of the jury, and your apparent lack of remorse for your offending, it is necessary to impose a substantial penalty.

I note that you have previous convictions.They were entered in the 1980s and there are no previous convictions for offences of a violent nature.Your counsel has asked that any sentence of periodic detention that I impose be kept as short as possible.

Taking all matters into account I will impose a sentence of 3 months' periodic detention.That takes into account the period of 1 month that the Periodic Detention Work Centre will be closed over the Christmas period, so it is effectively a period of 2 months' periodic detention. You are to report to the Wellington Work Centre on 2 December.

[9]It is reasonably clear from the Judge's sentencing remarks that the appellant would have received a sentence of supervision had he displayed a more amenable attitude when he spoke to the pre-sentence report writer.

[10] The appellant has now filed an affidavit in which he acknowledges that he has problems with anger and violence and claims that he would undertake an anger management course and comply with a sentence which was structured around a requirement that he do so.

[11] It was obviously unfortunate for the appellant that the sentencing occurred on the basis of a pre-sentence report which reflected his then anger, lack of acceptance of the verdict and lack of remorse.Mr Tuiasau's essential argument for the appellant is that this can and should be remedied by this court re-embarking on the sentencing process.

[12] The problem which this appeal presents, is not entirely uncommon - a sentence imposed which reflects an intractable attitude on the part of the defendant and then an appeal on the basis that the defendant/appellant now has a different attitude and one which suggests that a rehabilitative sentence might be productive.This might be justified in some cases.But we are reluctant to encourage appeals which proceed on this basis.Allowing appeals could be thought to encourage the sort of behaviour in which the appellant engaged on the day of sentencing. Moreover the later that remorse is expressed, the less the weight which can sensibly be attached to it.

[13] This was a very unpleasant assault which plainly terrified the complainant.There was not a plea of guilty.There was a striking absence of remorse.In that context, the sentence of periodic detention could not be regarded as inappropriate.

[14] It is, of course, open to the appellant to seek counselling or other treatment for his anger management problems if he sees that as appropriate, as it probably is.He can do so without a sentence structured around a requirement that he do so.

[15] So we have no difficulty with the imposition of periodic detention.There is, however, one aspect of the case which troubles us.

[16] The Judge intended to impose a sentence which would require the appellant to serve an effective sentence of 2 months periodic detention.To achieve that the Judge imposed a sentence of three months; this to allow for the Christmas shutdown.If the appeal is simply dismissed, the appellant will have to serve a sentence which would be 50% longer than what the Judge intended and told the appellant that she intended.

[17] This must be a common situation.It must be common enough that sentences of periodic detention which are imposed towards the end of the calendar year are structured to accommodate the shutdown over Christmas of periodic detention centres but then, because of deferral following the lodging of ultimately unsuccessful appeals, have to be served in a way which is practically more onerous than was intended by the sentencing judges.As well, the situation can go the other way.Sentences of periodic detention imposed earlier in the year, which are deferred by reason of unsuccessful appeals, may eventually be served in circumstances where the offender has the advantage of the Christmas shutdown which were not allowed for by the sentencing Judge.

[18] We are of the view that, in general, all of this should normally be regarded as being in the nature of rub of the green.In our view, appellate judges, whether in this Court or the High Court, are not, at least in general, required to fine-tune sentences on appeal to allow for this factor.But having regard to the particular structure of the sentencing remarks in this case and the 50% uplift factor referred to in paragraph [16], we think that the appellant would be left with a justified sense of grievance if we did not vary the sentence so that its practical effect accords with what was intended by the sentencing Judge.To that extent and that extent only, we are prepared to allow the appeal.

[19] So the appeal is allowed and the sentence is reduced to 2 months periodic detention.The appellant is to report to the Wellington Work Centre on Saturday, 24 March at 9.00 a.m. and thereafter on one occasion in each week and on such other occasion or occasions in each week as the Warden may from time to time specify with a maximum duration in custody not to exceed ten hours and the aggregate of periods of custody in each week not to exceed 18 hours.

Solicitors

F Tuiasau, Wellington, for Appellant

Crown Law Office, Wellington