Piao v R
[2020] NZCA 607
•2 December 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA494/2020 [2020] NZCA 607 |
| BETWEEN | YANLONG PIAO |
| AND | THE QUEEN |
| Court: | Kós P, Thomas and Gendall JJ |
Counsel: | S L McColgan for Appellant |
Judgment: | 2 December 2020 at 9 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
Introduction
On 28 July 2020 Mr Piao was sentenced to fourteen months’ imprisonment by Jagose J in the High Court at Auckland on one charge of being an accessory after the fact to murder.[1] At the time he was already serving a sentence of four years’ imprisonment for various charges involving methamphetamine offending.[2] Mr Piao appeals his sentence of fourteen months’ imprisonment on the basis that the Judge did not make any reduction for totality in relation to his live term of imprisonment on the methamphetamine charges.
Background
Index offending
[1]R v Piao [2020] NZHC 1839 [Sentencing notes].
[2]R v Gu [2019] NZDC 16307.
On 19 August 2017 Baochang Wang was murdered by three associates of Mr Piao. The victim, Mr Piao and the three associates were all engaged in a major methamphetamine manufacturing operation at the time. Mr Piao subsequently learned of the murder.
As to the general background of that offending, we record this from the Judge’s sentencing notes, dated 28 July 2020, which relevantly state:
[4] I turn to your offending. Mr Wang is alleged to have been murdered in Auckland in August 2017 by associates of yours. You found out about Mr Wang’s death soon after it occurred. You saw Mr Wang’s body. Mr Wang was not reported missing, and his location remained unknown until police exhumed his body in March this year. Your liability is not for murder, but instead arises independently, occurring after the initial crime is alleged to have been committed.
[5] In the very early hours of Tuesday, 22 August 2017, you and your associates drove to an isolated road off the Desert Road in the Taupo District, to dispose of Mr Wang’s body and thereby to suppress evidence of your associates’ involvement in his death. You and your associates travelled there in multiple vehicles, you driving a van with Mr Wang’s body in the rear. On arrival, a shallow grave was dug in wasteland off the isolated road. Mr Wang’s body was placed in the grave, and concrete poured over it. You and your associates then returned to Auckland.
[6] Mr Wang’s death only came to police attention because, in October 2019, you advised them of it and its consequences. The police are clear, without your information, Mr Wang’s death “would not have been investigated, his body not recovered and persons [not] held to account” for those matters.
Methamphetamine offending
Mr Piao’s drug offending, for which he had already been sentenced at the time he approached police regarding Mr Wang’s death, is described in Judge Thomas’ sentencing notes when she came to sentence Mr Piao and his co-offenders in the District Court at Auckland for the offending.[3]
[3]R v Gu, above n 2.
From this it is apparent that in January 2018 police executed search warrants at two properties in Auckland. At the first in Mt Roskill they found an active methamphetamine laboratory and retrieved substances and items being used to manufacture the drug. They also found 180 g of powder containing methamphetamine, but no final figure was provided as to the amount of pure methamphetamine. The Crown advises in its submissions that ESR estimated 3.9 kg of methamphetamine could have been manufactured using the substances located in the laboratory. Police also found a laser doppler machine worth $100,000 at the laboratory which had been stolen from the University of Auckland’s School of Biological Sciences.
At the second property searched, in Torbay, police found a package that had recently been imported and received by Mr Piao. It contained equipment and items used in the methamphetamine manufacturing process.
High Court decision
In his sentencing notes, on the accessory after the fact to murder charge, the Judge found Mr Piao had played an active role in the callous disposal of Mr Wang’s body. He noted particularly that the destruction of evidence after the taking of another’s life requires denunciation and deterrence.[4] He acknowledged there was no tariff judgment for sentencing on a charge of being an accessory after the fact to murder. But in doing so, the Judge referred to this Court’s findings as appropriate starting points of some two and a half years’ imprisonment where the body suffered indignities or was treated callously,[5] and three years where arrangements were made to dispose of the body at sea.[6] The Judge emphasised too that the disposal of a body to assist murderers in avoiding arrest is an attempt to defeat justice.[7]
[4]Sentencing notes, above n 1, at [10], citing R v Te Moana [2018] NZHC 1480 at [13].
[5]At [10], citing Te Kani v R [2020] NZCA 69 at [35]; R v Leach HC Wellington CRI-2006-085-4461, 27 October 2006; R v Wilkie-Morris [2016] NZHC 259; Betteridge v R [2019] NZCA 513 at [14]–[15]; and R v Boskell [2015] NZHC 286 which includes in its Annexure B a schedule of examples of accessory after the fact to murder sentencing.
[6]At [10], citing R v Raroa [1987] 2 NZLR 486 (CA) at 495.
[7]At [10], citing R v Raroa, above n 6, at 495.
The Judge considered there were no mitigating features of the offending here. It was instead aggravated by the inherent callousness of the disposal and the concealment of Mr Wang’s body in a manner that amounted to “cruel desecration” by entombing it in concrete at an isolated location.[8] He said there was premeditation in the arrangements that were made for Mr Piao to obtain a vehicle and drive with the body to the Desert Road area. There was no spontaneity, or element of “stupidity or loyalty”.[9]
[8]At [16] citing R v Roigard [2016] NZHC 166 at [53]–[54].
[9]At [16], citing R v Mako [2000] 2 NZLR 170 (CA) at [36]; and R v Leach, above n 5, at [15].
While the Judge noted his suspicions about the circumstances of Mr Wang’s disappearance, and the later connection of this to the drug offending that was a consequence of the murder, he was not prepared to hold the drug offending itself as aggravating the later accessory after the fact charge.[10]
[10]At [17].
Ultimately, an adjusted starting point of three years’ imprisonment was seen by the Judge as appropriate, citing the premeditation in particular.[11]
[11]At [18].
As to personal mitigating factors, the Judge identified the fact that Mr Piao’s guilty plea came at its earliest opportunity. However, Mr Piao’s expressions of remorse to the pre-sentence report writer were not sufficient to warrant recognition, given that these were somewhat late, being made three years since the offending.[12]
[12]At [20].
The Judge acknowledged the central point that Mr Piao, “at some risk to [himself] and [his] family”, had provided extensive assistance to police in relation to Mr Wang’s murder. He accepted that “[w]ere it not for [his] co-operation, Mr Wang’s fate would likely have remained unknown”.[13] The Judge noted that up to a 60 per cent discount from the three year starting point would be available to reflect the totality of the mitigating factors in the circumstances.[14] On this basis, the end sentence was reduced to one of 14 months’ imprisonment (rounded down) by applying the full 60 per cent discount (22 months). As part of this total discount of 60 per cent, a full 25 per cent for the guilty plea was provided. An effective discount of just over 36 per cent, therefore, was applied for Mr Piao’s assistance to police.[15]
[13]At [21].
[14]At [21], citing R v Hadfield CA337/06, 14 December 2006 at [22].
[15]At [20]–[22].
Finally, the Judge found, in relation to the drug offending for which Mr Piao was serving a sentence of imprisonment, totality was not a statutorily required consideration under s 85 of the Sentencing Act 2002. Nonetheless, he determined he should have regard to totality to ensure the total period of imprisonment Mr Piao would serve was not disproportionate to his overall offending.[16] In approaching a proportionality analysis, the Judge found what in effect would have been a 14-month uplift to the four‑year sentence for the drug offending would not have rendered the overall imprisonment sentence manifestly excessive. The principal impact of extending Mr Piao’s non-parole period beyond November 2020 reflected the seriousness of his additional conviction for being an accessory after the fact to murder.[17]
Submissions
[16]At [23], citing Taylor v R [2018] NZCA 444 at [15].
[17]At [25].
Mr McColgan for Mr Piao identifies the issue on appeal as a narrow one: “should his Honour have provided a further reduction for totality … and therefore is the total end sentence manifestly excessive?”
He submits when one stands back and considers what Mr Piao has done to assist in bringing the alleged murderers of Mr Wang to answer for his death, imposing a 14-month sentence for this offending is “wholly out of proportion to the overall criminality in both sets of offending”.
Mr McColgan accepts the sentence imposed here was “undoubtedly correct if being imposed on its own”. However, he objects to the lack of a totality reduction which he says was needed in relation to the overall criminality.
He says the failure to make a totality reduction:
… reduces the reduction Mr Piao properly received for his guilty plea, vital assistance to the authorities and the jeopardy he has placed himself and his family in as a result of his assistance.
If a further reduction for totality is applied, Mr McColgan contends it would not amount to double counting, and he says a failure to provide a further discount would be to undercount.[18]
Analysis
Construction of sentence
[18]Referring to L (CA719/2017) v R [2019] NZCA 676 at [50].
There is no dispute as to the appropriateness of the starting point here. Mr McColgan acknowledges too that the final 14-month sentence was “undoubtedly correct if being imposed on its own”. However, he says, and we accept, that a key mitigating feature of the offending at issue was Mr Piao’s assistance to the authorities. Because of his assistance to police, which came “at some risk to [his] family”, and was of critical value in bringing Mr Wang’s murderers to justice,[19] the Judge himself acknowledged that a combined discount of around 60 per cent was both available and appropriate for Mr Piao’s early guilty plea, and his “extensive” assistance to the authorities.[20] As we have outlined, that assistance was recognised by an effective discount of around 36 per cent.
Totality
[19]Sentencing notes, above n 1, at [21] and [6].
[20]See R v Hadfield, above n 14, at [22], approved in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [23]; Peric v R [2007] NZCA 471 at [7]–[9]; Ong v R [2012] NZCA 258 at [12]–[17]; and Anaru v R [2014] NZCA 283 at [9].
Though the Judge was not sentencing Mr Piao for the distinct methamphetamine charges and the accessory after the fact to murder offending at the same time, he was nonetheless required to consider the totality principle in determining the appropriate sentence for the accessory offending.
In Haywood v R, this Court said:[21]
[11] Therefore, we do not think the end sentence should be approached sequentially as an adjustment of the appropriate end sentence of the burglary and assault in order to fit the totality principle. Rather, the analysis should be guided from the outset with the appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending. That is so even though technically the result is achieved by adjusting the second sentence, because the first sentence is already in place. So we think the question is not whether a two year adjustment from the starting point [for the second sentence] is appropriate to satisfy s 85(2). Rather, the question is whether 13 and a half years would be wholly out of proportion to the gravity of the whole of the offending…
[21]Haywood v R [2015] NZCA 551.
A sentencing court must be anxious not to impose a second sentence that “potentially could lead to an overall ‘crushing’ sentence”.[22] The totality principle is engaged where, as here, an offender is already serving a sentence of imprisonment and the sentencing court is required to impose a further sentence of imprisonment for an offence committed before the offence which led to the imposition of the previous sentence. The court must at that point look at the offending and “criminal behaviour” in its totality and consider the appropriateness of the total sentence as if the offender was before the court for all the offences.[23]
[22]At [13].
[23]R v Bradley [1979] 2 NZLR 262 (CA) at 263–264. See also R v Jeffries [1992] 1 NZLR 134 (CA) at 137; and Geoff Hall (ed) Hall’s Sentencing (online ed, LexisNexis) at [SA85.6].
As we see it, that is precisely what the Judge did in the present case. The Judge expressly confronted the question of totality. He asked himself whether a total effective sentence of five years and two months (four years plus 14 months) would be out of proportion to the gravity of Mr Piao’s overall offending.[24] The Judge was satisfied that the addition of 14 months to the existing four-year sentence appropriately reflected the seriousness of this additional conviction,[25] and thus Mr Piao’s overall offending.
[24]Sentencing notes, above n 1, at [23].
[25]At [24].
As the Crown properly notes, an adjustment for totality is not automatic.[26] Proportionality of the total effective sentence to the gravity of the overall offending will be determinative. The Judge’s proportionality assessment here, in our view, was appropriate. Mr Piao’s methamphetamine offending was plainly serious and of a commercial nature.[27] His being an accessory after the fact to murder was also particularly grave in its execution and the resulting concealment of the murder. He played a central role in the transportation of Mr Wang’s body to be buried and helped to conceal it in a particularly undignified way in a remote location. Mr Piao received a substantial and full 60 per cent discount for his guilty plea and assistance to the authorities (including about 36 per cent for this assistance).[28] This ensured the effective penalty for that accessory charge was modest in proportion to the actual offending. We find the Judge was thus entirely justified in coming to the view that a total effective sentence for both sets of offending of five years and two months was not disproportionate to the overall gravity and did not require a totality adjustment.
[26]Ashcroft v R [2014[ NZCA 551 at [32].
[27]R v Gu, above n 2.
[28]See above at [19].
We are not persuaded the one ground advanced for Mr Piao in support of his appeal has been made out here. The end sentence imposed was appropriate and not manifestly excessive,[29] and the Judge did not err in imposing this sentence. In our judgment that end sentence was within the available range for Mr Piao’s overall offending and no error of principle has occurred here.[30]
Result
[29]Skipper v R [2011] NZCA 250 at [28].
[30]Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [36].
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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