Piao v R

Case [2020] NZCA 607 2 December 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA494/2020
[2020] NZCA 607

BETWEEN	YANLONG PIAO Appellant
AND	THE QUEEN Respondent

Court:	Kós P, Thomas and Gendall JJ
Counsel:	S L McColgan for Appellant Z A Fuhr for Respondent
Judgment: (On the papers)	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’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Piao v R

Details

AGLC: Piao v R [2020] NZCA 607
Case: [2020] NZCA 607
Decision Date: 2 December 2020 at 9 am

CaseChat Overview and Summary

Yanlong Piao appealed against his sentence for being an accessory after the fact to murder, arguing that the sentencing judge should have made a further reduction for totality in relation to his concurrent term of imprisonment for methamphetamine offences. Piao had been sentenced to fourteen months’ imprisonment for his role in disposing of the body of Baochang Wang, who had been murdered by Piao’s associates. At the time of his sentencing, Piao was already serving a four-year sentence for methamphetamine offending. The appeal against sentence was dismissed. The Court of Appeal found that the sentencing judge had appropriately considered the totality principle when imposing the sentence for the accessory after the fact charge, and that the overall sentence of five years and two months was not manifestly excessive. The judge had already provided a substantial discount for Piao’s guilty plea and assistance to the authorities, which ensured the effective penalty for the accessory charge was modest in proportion to the actual offending. The Court of Appeal concluded that no error of principle had occurred and dismissed the appeal against sentence.

Orders