R v Yu

Case [2023] NZHC 1391 2 June 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-002022

[2023] NZHC 1391

THE KING

v

GAOXIANG YU

Hearing: 2 June 2023

Appearances:

Matthew Nathan KC for the Crown

Nick Chisnall KC and Julie Ding for the Defendant

Sentencing Notes:

2 June 2023

SENTENCING NOTES OF MOORE J

R v YU [2023] NZHC 1391 [2 June 2023]

Background

[1] Mr Gaoxiang Yu, at the age of 26, you appear for sentence having pleaded guilty to the murder of Mr Wang Baochang (“Mr Wang”).1 This charge carries a maximum penalty of life imprisonment.2 It is my task to sentence you.

[2] These sentencing remarks will take longer than is usual. That is because your case engages a number of procedural and legal complexities which are novel and far from straight forward. I will try to keep it as brief as I can and avoid getting too legally technical. 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 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 describe them.

[4] The facts are contained in a summary which you accepted shortly after you pleaded guilty. There is no dispute about them.

[5] The summary records that during 2017, you were a member of an organised crime syndicate which manufactured and supplied methamphetamine in New Zealand. Your co-defendants, Mr Zhao and G, were first and second in command respectively. The victim, Mr Wang, was also a member of the syndicate.

[6] You were informed by an acquaintance that Mr Wang was planning to rob or kidnap Mr Zhao. You passed this information on to Mr Zhao. Sometime around 17 August 2017, Mr Zhao advised you that he intended to confront Mr Wang. He asked that you be present when that occurred.

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.

[7] On 19 August 2017, you went to an address in Massey. This was where the syndicate had been operating a clandestine methamphetamine laboratory. There you met Mr Zhao, G and an un-named associate. Mr Zhao informed you of his plan to kill Mr Wang if he admitted he intended to rob Mr Zhao. If that was to happen you were to stand behind Mr Wang, hold him down and cover his mouth, while G stabbed him with a knife.

[8] Later that same evening, under a false…

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 R v Yu

Details

AGLC: R v Yu [2023] NZHC 1391
Case: [2023] NZHC 1391
Decision Date: 2 June 2023

CaseChat Overview and Summary

The case of R v Yu involves sentencing for the murder of Mr Wang by Mr Gaoxiang Yu. The court had to determine the appropriate sentence for Mr Yu, taking into account the aggravating factors of the crime, the guilty plea, and the assistance provided to authorities. The court also considered the mitigating factors, including Mr Yu's age, vulnerable psychological condition, and status as a foreign national. The court determined that it would be manifestly unjust to impose life imprisonment on Mr Yu, given the mitigating factors and the time he had already spent in pre- and post-sentence detention. Instead, the court imposed a finite sentence of 15 years' imprisonment, with a minimum term of imprisonment of eight years. The sentence was imposed cumulatively on the sentences Mr Yu was currently serving.

The court found that the murder involved calculated or lengthy planning, but did not involve a high level of brutality, cruelty, depravity, or callousness. The court considered the appropriate minimum term of imprisonment (MPI) to be 16 years, but after applying discounts for personal circumstances, the notional MPI was determined to be seven years and three months. The court then considered whether it would be manifestly unjust to impose life imprisonment, and determined that it would be, given the mitigating factors and the time Mr Yu had already spent in detention. The court then determined the appropriate finite sentence to be 15 years' imprisonment, with an MPI of eight years. The court imposed the sentence cumulatively on the sentences Mr Yu was currently serving, resulting in an effective end sentence of approximately 10 years and six months.

Orders