R v Gu
[2023] NZHC 2109
•9 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-090-002022
[2023] NZHC 2109
THE KING v
ZHICHENG GU
Hearing: 9 August 2023 Appearances:
Matthew Nathan KC and Joanne Lee for the Crown
Julie-Anne Kincade KC and Scott Brickell for Zhicheng Gu
Judgment:
9 August 2023
SENTENCING NOTES OF MOORE J
R v GU [2023] NZHC 2109 [9 August 2023]
Background
[1] Mr Zhicheng Gu, at the age of 31, you appear for sentence having been found guilty by a jury of the murder of Mr Wang Baochang (“Mr Wang”).1 Conviction for murder carries a maximum penalty of life imprisonment.2
[2] It is my task to sentence you. I will aim to keep these sentencing remarks brief and to avoid legal technicalities where possible. However, sentencing for murder is not an altogether straightforward exercise. Fortunately, similar complexities arose for this Court when sentencing your co-defendants, Mr Zhao3 and Mr Yu.4 You will therefore hear me refer on a number of occasions to the approach taken with those defendants. Where I can, I will footnote comments which do not need to be covered orally but which should be recorded so that those reading these sentencing notes later are able to understand how I have come to some of the conclusions which follow.
The offending
[3] It is first necessary for me to set out the facts of your offending. These will be familiar to you. But because sentencing is a judicial function which must be undertaken in open Court and in public, it is necessary for me to set out the facts which are relevant to how I arrive at the sentence you will receive.
[4] Having presided over your trial, and having viewed and on occasions reviewed the relevant evidence countless times and having seen and heard the witnesses, I am well placed to summarise the evidence and, of course where necessary, make findings of fact to the required criminal standard. So here are the facts as I find them.
[5] During 2017, you were a member of an organised crime syndicate which imported ephedrine and methamphetamine and also manufactured and supplied methamphetamine in New Zealand. Your co-defendants are all Chinese nationals. Mr Zhao headed the enterprise. He made the strategic decisions. He had the
1 I note that there appears to be some inconsistency in the order in which Mr Wang’s names are published. This is because Chinese surnames are traditionally written before the first or given name. I adopt this approach here.
2 Crimes Act 1961, s 172.
3 R v Zhao [2022] NZHC 2919.
4 R v Yu [2023] NZHC 1391.
international connections. He was instrumental in getting the drugs, both ephedrine and methamphetamine, into the country. He was the boss. The second in command was Mr Yu. Mr Yu was responsible for handling the drugs once they crossed the border and distributing them to local gangs or to methamphetamine manufacturers, some of whom were making the drug for or on behalf of the syndicate. You operated at a level just below Mr Yu. You were a senior and trusted member of Mr Zhao’s inner circle. Your role was to manufacture methamphetamine from the ephedrine imported by Mr Zhao. The victim, Mr Wang, played a similar role in the syndicate, manufacturing methamphetamine at rented properties. In his case it was in an apartment on Symonds Street.
[6] Through Mr Yu’s connections with local gangs, Mr Yu was informed that Mr Wang was planning to kidnap Mr Zhao, force him to reveal where he warehoused his drugs and displace him as leader. Mr Yu passed this information on to Mr Zhao. Unsurprisingly, this upset Mr Zhao. He was determined not to let that happen.
[7] A few days later, sometime around 17 August 2017, Mr Zhao told Mr Yu that he intended to confront Mr Wang about what he had heard and asked that he be present when he did so. That was the start of the plan which led to Mr Wang’s killing.
[8] Between then and 19 August 2017, Mr Zhao discussed his concerns with you, Mr Yu and another trusted associate, Mr Qin. A plan was hatched to confront and, if necessary, kill Mr Wang. If that was to happen, the plan was that Mr Yu would stand behind Mr Wang, hold him down and cover his mouth, while you stabbed him to death with a knife.
[9] On 19 August 2017, you went to the address in Massey where the syndicate had been operating a clandestine methamphetamine laboratory. There you met with Mr Zhao, Mr Yu and Mr Qin.
[10] Later that same evening, as part of the plan to confront Mr Wang, Mr Zhao met Mr Wang and his then-girlfriend, Z at a restaurant in the city. After dinner the three drove out to the Massey address under some pretext relating to the business. Mr Zhao led Mr Wang inside while Z remained in the car outside. Mr Yu met them at the door.
He was armed with what he told the jury was an unloaded gun. Mr Zhao also had a gun. The men pointed the guns at Mr Wang’s head and began to challenge him. You were inside armed with a knife.
[11] At gunpoint, Mr Zhao ordered Mr Wang to sit in a chair in the lounge. There was some evidence at trial that initially Mr Wang thought it was a joke but soon realised that the men meant business when his hands and feet were bound and he was tied to a chair. Once restrained in this way, Mr Zhao began questioning Mr Wang. Mr Wang denied the allegations. Mr Yu had the gun pointed at Mr Wang. You were standing nearby. Mr Qin was told to go out and tell Z that Mr Wang would be staying at the property to manufacture drugs and she should go home.
[12] At some point, you and Mr Yu left the room to discuss the plan to kill Mr Wang if it came to that. You told Mr Yu to be prepared to “take action” and between you, you agreed on a hand signal which would be the prompt or cue to put the plan into effect – starting with Mr Yu first getting a towel to cover Mr Wang’s mouth to suppress any sounds he might make.
[13] Mr Zhao called you and Mr Yu back into the room. Mr Zhao told Mr Wang that he would check on Z. He then left the house and went outside to talk to Z. Once outside, he realised he had left his phone inside. He instructed Mr Qin to go back to retrieve it.
[14] In the meantime, you and Mr Yu gave Mr Wang some methamphetamine. Then you gave Mr Yu the signal. As agreed, Mr Yu went to the kitchen and got a towel. He walked behind Mr Wang and covered his mouth. At that point you began to stab Mr Wang in the chest and abdomen. Mr Wang attempted to defend himself. Somehow he grabbed your wrists, causing you both to fall to the floor. You managed to release yourself from Mr Wang’s grip and continued to stab him five to six times more in the chest. Mr Wang died almost immediately afterwards.
[15] Mr Qin, who had been dispatched to retrieve Mr Zhao’s phone, heard some of the commotion as he approached the house. He reported back to Mr Zhao that what he had heard was consistent with Mr Wang being killed.
[16]Z left and went home. Mr Zhao returned to his hotel room in the city.
[17] You and Mr Yu each showered. You waited for more instructions from Mr Zhao.
[18] The next day Mr Zhao asked Mr Yu and Mr Qin to search for a suitable place to dispose of Mr Wang’s body. In the meantime, his body was covered in ice and placed in the bathtub.
[19] Over the next few days, Mr Zhao instructed you and various others to do certain things. Mr Yu and Mr Piao (recruited by Mr Zhao after the killing) cleared and restored Mr Wang’s rented apartment in Symonds Street, where he had been manufacturing the drug. They took the manufacturing equipment back to the Massey address. You, Mr Piao, Mr Yu and another drove around Auckland and as far away as Whangapoua on the Coromandel Peninsula, looking for somewhere suitable to dispose of the body. You drew a blank. By this time Mr Wang’s body was starting to decompose. A chest freezer was bought to put it in.
[20] You finally settled on a burial site in the central North Island south of Taupō, off the Desert Road. At about midnight on 22 August 2017, two of your associates shared a Google location pin with the group. An hour later, Mr Piao left in a van with the freezer in the back containing Mr Wang’s body. You and Mr Yu followed in a separate car.
[21] When you reached the chosen spot you helped the others carry the freezer and its contents from the van to the burial site. Mr Wang’s body was placed in a shallow grave. You and Mr Yu filled in the grave after covering the body in quick setting concrete.
[22] After you all got back to Auckland, Mr Zhao began to harbour misgivings about the depth of the grave. He thought it was too shallow. He told you and three others to return to the Desert Road and re-bury Mr Wang, which you did.
[23] The next task was how to explain Mr Wang’s disappearance to Z. Mr Zhao told her that he was arranging for Mr Wang to return to China. Z left New Zealand shortly afterwards.
[24] Mr Wang was not reported missing for over two years. It was not until Mr Piao was arrested on drug charges that this information came to light. The Google location data from his phone was examined by the Police. As a result, the likely location of Mr Wang’s grave was identified.
[25] On 23 March 2020, the Police conducted an examination of the site and exhumed Mr Wang’s remains which by that time were largely skeletal although some remnants of his brain were able to be tested for the presence of drugs. This testing revealed what seems likely to have been very high levels of methamphetamine in his body at the time of death.
Procedural history
[26] So, how was it that you came to the notice of the Police in relation to Mr Wang’s death?
[27] On 18 January 2018, you were arrested on a raft of serious drug and firearm charges arising out of two related Police operations. You pleaded guilty to these charges 13 months later, on 8 February 2019. You were sentenced by Judge E M Thomas in the District Court at Auckland on 16 August 2019.5 From a starting point of seven years’ imprisonment, you received a two year discount for previous good character, remorse, time spent on EM bail, and successful completion of residential rehabilitation. You received a further 20 per cent discount for your guilty pleas. This resulted in an effective end sentence of four years’ imprisonment.
[28] On 15 May 2020, presumably as a result of the information provided by Mr Piao, you were charged with Mr Wang’s murder.
5 R v Gu [2019] NZDC 16307.
[29] Your statutory release date on the drug and firearm charges was 4 January 2023. However, given the murder charge, you continued to be remanded in custody.
[30] Unlike your co-defendants, Mr Zhao and Mr Yu, who have both pleaded guilty to Mr Wang’s murder, and been sentenced, you defended the charge.
[31] On 29 June 2023, after a four week trial, you were found guilty of Mr Wang’s murder. That is the backdrop to how we are where we are today.
Victim impact statements
[32] I have received two victim impact statements. The first, which was read by Mr Nathan, is from X, Mr Wang’s ex-wife and the mother of his two children. The second is from Mr Wang’s father.
[33] X states that her family are still struggling to come to terms with Mr Wang’s death, despite the passage of over five years. Her children no longer ask their mother how their father died, because they see how upset the question makes her. She reports suicidal thoughts and suffers from severe depression. She points out that as a result of your actions, her children will never experience the love they might expect and rightly deserve from their father.
[34] Mr Wang’s father lives in China. He was so shocked when he heard the news in April 2020 that he suffered a heart attack. Out of fear as to how she might react, Mr Wang Senior did not tell his wife until 2021, when their son’s ashes were taken back to China. As expected, the news caused her health to quickly deteriorate and she ended up in hospital for over two months. Mr Wang was their only son and they too are struggling to accept his death.
[35] Both of these statements speak to the devastating and enduring effect your actions have had on those close to Mr Wang.
Approach to sentencing
[36] Everyone who commits murder is liable to life imprisonment unless such a sentence would be manifestly unjust, given the circumstances of the offence and the offender.6 This is a conclusion likely to be reached in exceptional cases only.7
[37] It is common ground in your case that there are no such circumstances, either in relation to you or your offending, which might justify a departure from that presumption. The sole question for me in sentencing you is what is the appropriate minimum term of imprisonment (“MPI”) you must serve before being eligible for parole?
[38] If a person is sentenced to life imprisonment for murder, the Court must impose an MPI of not less than 10 years.8 If the murder involves one or more of the aggravating factors listed in s 104 of the Sentencing Act 2002 (“the Sentencing Act”), then the Court must impose an MPI of at least 17 years unless it would be manifestly unjust to do so.9
[39] In practical terms, the first phase of the approach I must follow involves three steps:10
(a)first, to consider whether any of the aggravating factors listed in s 104 is engaged;
(b)secondly, if one or more of those factors is engaged, to then consider whether an MPI of 17 years would be manifestly unjust; and
(c)thirdly, if satisfied a 17 year MPI would be manifestly unjust, to consider the appropriate notional MPI.
6 Sentencing Act 2002, s 102.
7 R v Rapira [2003] 3 NZLR 794 (CA) at [121].
8 Sentencing Act, s 103(2).
9 Section 104.
10 R v Williams [2005] 2 NZLR 506 (CA); and Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25].
[40] This third step will first involve setting a notional starting MPI, before considering what adjustments need to be made to the starting MPI to account for your personal circumstances. That will inform the ultimate question of what MPI is appropriate. I now turn to consider each of those questions.
Do any of the aggravating factors in s 104 of the Sentencing Act apply?
[41] Mr Nathan, in his written submissions, submits that two of the s 104 factors are engaged:
(a)first, that the murder involved calculated or lengthy planning;11 and
(b)secondly, that the murder was committed with a high level of brutality, cruelty, depravity, or callousness.12
Did the murder involve calculated or lengthy planning?
[42] To meet this criterion the planning need not be competent or sophisticated but must be present to a high degree.13 This tends to be illustrated by the length of time or degree of thought that has gone into the planning.
[43] I am satisfied that the planning and premeditation in this case meets this threshold. I accepted the same when sentencing your co-defendant Mr Yu,14 as did Lang J when sentencing Mr Zhao.15 The plan to lure Mr Wang to the Massey address by subterfuge with the intention of confronting and killing him was formulated in the days prior to his death. You took a number of active steps in furtherance of that plan, even if your involvement in the planning was not as central as Mr Zhao’s.
[44]It follows that I am satisfied that s 104(1)(b) is engaged.
11 Sentencing Act, s 104(1)(b).
12 Section 104(1)(e).
13 Desai v R [2012] NZCA 534 at [39]; and Kaur v R [2017] NZCA 465 at [49].
14 R v Yu, above n 4, at [40].
15 R v Zhao, above n 3, at [20].
Was the murder committed with a high level of brutality, cruelty, depravity, or callousness?
[45] It is not strictly necessary for me to go on and consider any other s 104 factors. However, I record for completeness that I would not have found this factor engaged, although I must say only by the slimmest of margins.
[46] As I said when sentencing Mr Yu,16 while there were most certainly elements of brutality and callousness involved in Mr Wang’s murder, comparable caselaw suggests they do not reach the level to activate the engagement of s 104(1)(e).17
[47] Then there are the extensive efforts to dispose of Mr Wang’s body and conceal his death. Unlike your co-defendants, you were not charged with being an accessory after the fact and so your involvement in these efforts has not yet been accounted for. In particular, you played a key role in locating a suitable burial site and burying Mr Wang’s body, twice. These efforts certainly elevate the level of cruelty in the offending, though not, in my view, to the s 104(1)(e) threshold. I shall return to this aspect of your conduct later.
[48] It follows that I am satisfied the s 104(1) threshold has been met in respect of planning and premeditation, but not in respect of brutality and callousness.
Would it be manifestly unjust to impose an MPI of at least 17 years?
[49] Because one of the s 104 factors is engaged, I must consider whether an MPI of 17 years would be manifestly unjust. This is the second step.
[50] The standard for a finding of manifest injustice is set at a high level. As a matter of overall impression the case must fall outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.18
16 R v Yu, above n 4, at [43].
17 Fraser v R [2010] NZCA 313; and Price v R [2021] NZCA 568.
18 R v Williams, above n 10, at [67].
[51] The Crown responsibly accepts that in all of the circumstances of this case, it may be manifestly unjust to impose a 17 year MPI. I agree. This is because the minimum term of 17 years would also need to reflect any discounts you are entitled to for personal circumstances and time spent on pre- and post-sentence detention. These are likely to result in an MPI less than 17 years.
[52] It follows that I am satisfied the imposition of such a term would be manifestly unjust. I now turn to consider the appropriate notional MPI before adjustments for personal circumstances.
What is the appropriate notional MPI?
[53] Mr Nathan KC, for the Crown, submits that the appropriate starting MPI sits at least 18 years’ imprisonment. Your counsel, Ms Kincade KC, submits that it should be 16 years.
[54] I thank counsel for referring me to a number of cases which provide some guidance as to the appropriate notional MPI. Several involve premeditated murder in the context of drug-related activity, although none is on all fours. As observed by Lang J when sentencing Mr Zhao, these types of cases often attract MPIs of between 16 and 18 years.19 I have footnoted what I consider to be the most helpful cases and how I assess their relevance to your facts.20
[55] The most useful comparisons, necessarily so, are to be drawn against your co-defendants, Mr Zhao and Mr Yu. Lang J described Mr Zhao as “clearly the
19 R v Zhao, above n 3, at [22].
20 In terms of the level of premeditation and brutality, the present offending is less serious than Pandey-Johnson v R [2012] NZCA 595, and R v Moore HC Wellington CRI-2006-085-4361, 11 April 2008, for which MPIs of 18 years were selected. It is more comparable to R v Gosset [2019] NZHC 1366, in which one factor under s 104 was engaged, although the Court was unable to discern the particular role of each offender leading to the imposition of 16-year MPIs for both. There are some parallels to R v Roigard [2019] NZCA 8, in which the offender made ongoing efforts to suggest the victim had simply disappeared. But it is more serious and different in context, in my view, than each of Kahia v R [2022] NZCA 38, R v Ormsby-Turner [2023] NZHC 406, and Momoisea v R [2019] NZCA 528, which attracted starting MPIs of between 12 and 14 and a half years’ imprisonment.
instigator” and the director of the extensive efforts to conceal the crime.21 Mr Zhao received a starting MPI of 18 years’ imprisonment.22
[56] In sentencing Mr Yu, I noted that he did not direct or instigate the murder, nor stab Mr Wang.23 However, his role was nonetheless an important one involving several active steps taken in furtherance of the plan. Mr Yu received a starting MPI of 16 years’ imprisonment.24
[57] This is not a situation like in R v Gosset, where the offenders were treated as joint and equal participants in the murder.25 You each played a different role. Though not the mastermind behind the plan to murder Mr Wang, you were the one who actually inflicted the fatal injuries having given Mr Yu the “signal” to get a towel and hold the victim down. For that your culpability must be lower than that of Mr Zhao but higher, albeit not significantly so, than that of Mr Yu.
[58] I consider a notional starting MPI of 16 years and six months’ imprisonment accurately reflects your role and culpability in the offending. It also reflects the fact that your extensive post-death involvement has not been accounted for in an accessory to murder charge but is plainly relevant in terms of assessing the totality of the offending. It would be an odd outcome indeed if the full extent of what you did as an active and willing participant in this enterprise, including steps to avoid detection, could not be included in the totality analysis.26
Adjustments to the MPI for personal circumstances
[59] I now turn to consider what adjustments need to be made to the starting MPI to account for your personal circumstances.
21 R v Zhao, above n 3, at [23].
22 At [23].
23 R v Yu, above n 4, at [56].
24 At [57].
25 R v Gosset, above n 20.
26 R v K [2020] NZHC 233 at [62]; R v Frost [2008] NZCA 406 at [40]; and Singh v R [2019] NZHC 436.
Personal circumstances
[60] The first mitigating factor advanced by Ms Kincade relates to your personal circumstances.
[61] Ms Kincade submits that you should be entitled to a discrete discount under s 8(h) of the Sentencing Act on the basis that incarceration will be disproportionately severe due to your status as a foreign national. This has been recognised as a mitigating factor in the context of serious drug-related offending previously,27 and resulted in a “modest discount” which I gave Mr Yu.28
[62] Ms Kincade says that you do not speak fluent English and do not appear to have any family support in New Zealand. She also notes that your parents are older and you may not see them again, which was a factor considered by the Court of Appeal in Chai v R to strengthen the case for a discount under this head.29 She submits that unlike Chai, however, you have not had enough life experience at the age of 31 to easily adjust to life in prison. Ms Kincade contends that a discount of 10 per cent is appropriate.
[63] Mr Nathan, on the other hand, submits that a discount for your status as a foreign national would sit uncomfortably with your role in the offending, which was significant.
[64] The PAC report records you arrived in New Zealand from China in 2010 as a student. That was 14 years ago. You enrolled at Otago Boys High before embarking on a graduate degree in civil engineering at MIT, here in Auckland which you did not complete.
[65] While I have found that your culpability sits slightly above that of Mr Yu, I do not consider this greatly affects your entitlement to a discount under this factor. I accept that a modest discount is appropriate, though not to the level contended for by your counsel because you have, it seems, lived in this country since you were about
27 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [163].
28 R v Yu, above n 4, at [75].
29 Chai v R [2020] NZCA 202.
17 and you are now 31. This is not a case where, for an example an international drug courier is intercepted and finds themselves incarcerated for years in a totally unfamiliar land and a foreign culture. New Zealand is not a foreign place for you.
[66] I propose to allow a discount of six months from the starting MPI of 16 years and six months, to reflect your status as a foreign prisoner. That is slightly more than I allowed for Mr Yu whose situation was not markedly different. That brings the MPI to 16 years’ imprisonment.
Age and remorse
[67] The next factors which arise from the material which I have read and is before the Court relates to age and remorse.
[68] I have before me two letters of support provided by Ms Kincade, the first written by your father and the second by your younger sister. Both are heart wrenching and speak to the real sense of loss your family suffers and the self-blame they feel, especially your mother who has experienced health setbacks as a result of these events. They describe you as the backbone of the family. Both acknowledge that you have done wrong but they also express hope that you will change your ways. Emphasis is also placed on your age at the time of the offending and the apparently sincere expressions of remorse you have shared with them. The PAC report, however, records that you maintain your innocence and insist the jury’s verdict was wrong.
[69] That would explain why your counsel has not sought a discount for remorse. As for youth, I note that at the time of the offending your age was at the very upper limit of, if not above, what would normally justify a discount.
[70]For the reasons given, no discount is given for age or remorse.
Totality considerations
[71] The next adjustment to the starting MPI is for totality. It is crucial that the sentence I impose is not out of all proportion to the gravity of the overall offending.30
30 Sentencing Act, s 85(2).
This involves consideration of the time you have spent in pre- and post-sentence detention across the drug, firearm and murder charges. These charges were all laid as a result of the activities of the drug syndicate in which you were involved.
[72] On the Crown’s calculation, you have spent a total of 223 days on pre-sentence detention in relation to the drug and firearm charges, and a further 217 days in relation to the murder charge. Mr Nathan tells me that Corrections has advised you will be credited with the latter – being the 217 days vis-à-vis the murder charge – but not with the 223 days in relation to the drug and firearm charges. That is because the murder charge was not laid until after you had been sentenced on the drug and firearm charges.
[73] Based on that information the Crown accepts, and I am satisfied, in accordance with the guidance given in Booth v R, that you are entitled to a one-to-one reduction of 223 days from the starting MPI.31 This is also consistent with the approach taken for Mr Yu.
[74] You have also spent a total of 1237 days, or close to three years and five months as a sentenced prisoner. While post-sentence detention is not usually credited against the MPI, issues of totality would arise if it were not taken into account in your case. The Crown properly accepts that you may be entitled to a distinct discount for this factor as was considered appropriate by this Court when sentencing Mr Zhao and Mr Yu.
[75] Mr Zhao received a discount of nine months, or approximately four per cent of the starting MPI of 18 years, to reflect the two years spent as a sentenced prisoner.32 Mr Yu received a discount of one year and 10 months, being approximately half of the three year and nine month period on post-sentence detention.33
[76] In your case, Mr Nathan submits and Ms Kincade agrees that the Court should follow the approach taken for Mr Yu in crediting approximately half of the period on post-sentence detention. In your case this is 619 days.
31 Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [24].
32 R v Zhao, above n 4, at [33].
33 R v Yu, above n 4, at [82].
[77] This, in addition to the 223 days spent on pre-sentence detention, produces a total reduction for pre- and post-sentence detention of 842 days, or approximately 28 months.
Conclusion on personal mitigating factors
[78] It follows that I have identified discounts totalling 34 months, or two years and 10 months, from the starting point MPI of 16 years and six months’ imprisonment.
[79]This leads to an MPI of 13 years and eight months’ imprisonment.
[80] I am satisfied that this is the appropriate MPI having regard to your culpability, personal circumstances and the purposes and principles of sentencing.34
End sentence
[81]Mr Gu, please stand.
[82]On the charge of murder, you are sentenced to life imprisonment.
[83] Additionally, I order an MPI of 13 years and eight months’ imprisonment which means that you must remain in prison until at least that time. Whether you are released and when you are released will depend on the Parole Board at that time. When or if you are, it is likely you will be deported back to China.
[84]Stand down.
Moore J
Solicitors:
Crown Solicitor, Auckland Ms Kincade KC, Auckland Mr Brickell, Auckland
34 Sentencing Act, ss 7 and 8.