R v Yu

[2021] NZHC 1048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-002022

[2021] NZHC 1048

THE QUEEN

v

GAOXIANG YU

Hearing:

11 May 2021

Appearances:

J Lee for Crown

G Gotlieb, J Ding and H Krebs for Defendant

Sentence:

11 May 2021

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:

Meredith Connell, Auckland K3 Legal/H Krebs, Auckland

R v YU [2021] NZHC 1048 [11 May 2021]

Introduction

[1]    Mr Yu, you appear for sentence today having entered a plea of guilty to the charge of being an accessory after the fact to the murder of Baochang Wang. The charge was laid pursuant to s 176 of the Crimes Act 1961. The maximum penalty for such offending is seven years’ imprisonment. The plea was entered after I gave you a sentence indication on 9 March 2021.1

[2]    You are currently serving a sentence of six years’ imprisonment for drug related offending.2

Background – Summary of facts

[3]    You  were  charged  along  with  a number of other persons.  Mr Piao  and  Mr Zhang, two of your co-offenders who faced the same charge, have already been dealt with by the Court after also entering guilty pleas. I will return to the sentences imposed on them shortly.

[4]The summary of facts to which you have entered your plea records as follows:

(a)You were involved in an organised criminal syndicate which manufactured and supplied methamphetamine in New Zealand. So was the deceased, Mr Wang.

(b)By mid-August 2017, Mr Wang had accumulated significant debts to the head of the syndicate. The head of the syndicate further suspected that Mr Wang had stolen drugs from him to sell on his own accord. As retribution, the head of the syndicate arranged to have Mr Wang killed.

(c)Mr Wang was killed on the evening of 19 August 2017 at an address in Massey. He was stabbed numerous times with a military-style dagger with a 25 centimetre blade.

1      R v Yu [2021] NZHC 440.

2      R v Yu [2019] NZDC 16307.

(d)After Mr Wang’s death, the head of the syndicate arranged for a number of associates, including you, to assist in the concealment of the murder.

(e)From the early hours of 20 August 2017, you acted as an accessory after the fact of Mr Wang’s murder. You knew that the head of the syndicate and one of his co-accused had been involved, but you nevertheless assisted them by tampering with and suppressing evidence against them in order to enable them to avoid arrest and detection.

(f)Over the following two days, the head of the syndicate instructed you to undertake various tasks, including applying bleach to the blood splattered areas of the house, including the kitchen where blood had pooled on the floor around Mr Wang’s body, and to the windows and blinds. You were also instructed to clean up Mr Wang’s apartment in central Auckland. Mr Wang had used the apartment to manufacture methamphetamine on behalf of the syndicate and you and another person removed drug manufacturing equipment from the apartment.

(g)The head of the syndicate canvassed various locations around the North Island to find a suitable place to bury Mr Wang’s body. The body had been covered in ice and placed in a chest freezer. A location off the Desert Road in Taupo was identified as a burial site. On the night of 22/23 August 2017, you left for the burial site in a vehicle. You were accompanied by another person. The vehicle was used as a pilot vehicle, driving ahead of the van which contained Mr Wang’s body, which was still in the freezer. It was your and the other person’s job to survey the route for any police who might be out on the road. When you arrived at the burial site, you assisted others in carrying the freezer out of the van and in unloading Mr Wang’s body into a shallow grave. You, together with other persons, then proceeded to cover the body in quickset concrete. You and others filled the grave with shovels you had all brought to the scene.

(h)Mr Wang was not reported missing to the police and his whereabouts were unknown for a period of some two years after his death. His remains were only exhumed in March 2020.

(i)You were spoken to by the police but you declined to make any comment.

Pre-sentence report

[5]    At interview, you stated that you come from a broken family and that in 2015, your father decided to send you to this country, where you enrolled in a hospitality course. You injured your wrist and as a result you were unable to continue with the course. You had too much free time on your hands and you started associating with anti-social peers. You also started consuming drugs and living an anti-social lifestyle. You expressed regret at this. You were adamant you are no longer seeing your past associates and that you now only have contact with pro-social friends.

[6]    It was the report writer’s view that you have shown remorse for your offending. You stated that you were “not aware of exactly what had happened”, but that you acted at the request of a “good friend” to “help out”. You said that when you saw the deceased you were shocked, but felt obliged to help your friend despite feeling “very reluctant”. You said that you only thought about the consequences of your actions afterwards and that you felt a huge relief when you were ultimately arrested. You stated that you are willing to take responsibility for your offending and comply with any sentence imposed as a way to make amends.

[7]    The pre-sentence report also recorded that this is your fifth Court appearance for sentencing since 2017. Key factors identified as contributing to your offending were your criminal associates and your offending supportive attitudes. It was considered that you may benefit from engaging in a departmental rehabilitative programme. Nevertheless, given the frequency of your offending and your yet to be addressed rehabilitative needs, the likelihood of reoffending was assessed as medium. Given the nature of your offending, it was assessed that there is a medium risk of harm to the community.

[8]    It was noted that the Immigration Department has confirmed that, given your current immigration status, you will be deported on your release.

Mr Kirker’s report

[9]    Your counsel has obtained a report from Barry Kirker, a clinical and forensic psychologist. Mr Kirker initially saw you in January and March 2019. He saw you again in February 2021. He is of the view that you function at a “somewhat emotionally detached cognitive intellectual level”. Mr Kirker also reviewed your background. He noted that, in 2017, your relationship with your then girlfriend had broken up and that the fact that you were then offending was one of the reasons behind that break up. He noted your gradual introduction into first cannabis and then methamphetamine. He reported your attitude to your current offending and noted that you never considered contacting the police, out of loyalty to your friend and a desire to be helpful. He noted that you have mixed feelings about the victim; you consider that he was not a good person but that he did have children who are now fatherless. You told Mr Kirker that what transpired with the body was a “surreal experience”.

[10]   Mr Kirker was of the view that you present as an individual who, at the time of your offending, was lost and confused. He also said that you appear to have been somebody who was prepared to take a risk in order to improve your life, while at the same not caring about what happened to you. He noted that as a result, you were not prepared to question or challenge things you were asked to do and that you became caught up in the social and financial gratification you were then getting. He considered that once you became caught up in the drug world, you were not able to get away from it due to the loyalties and self-preservation, and that your offending was maintained by your own drug use, and your desensitisation or disconnection from your own emotional state and from potential empathy for the victims of your offending.

The victim impact statements

[11]   [Redacted] is Mr Wang’s estranged widow. She is saddened and heartbroken by her former husband’s death. She explains how she met him and that they had children together. When the children now ask about their father, she finds it hard to explain to them what has happened. The children have lost their “guardian”. They

will never experience the love which they would have got from their father. [Redacted]. She also details the financial impact that Mr Wang’s death has had on her and on the family.

[12]   Mr Wang’s father, [redacted], lives in China. He explains how he became aware of his son’s death. He was shocked when he heard the news. He suffered a heart attack and had to stay in hospital for some two weeks as a result. Baochang Wang was his only son and he had great expectations for him. He has not told his wife about their son’s death because he fears for the consequences if he does so. He is struggling to accept the fact that his son is dead and he has been unable to eat or sleep. He says that his and his wife’s lives have become meaningless and he fears that they will die in “loneliness and grief”.

[13]   The victim impact statements speak to the devastating effect Mr Wang’s death on the victims; they are also relevant to your offending. You intended to and did help those responsible for the murder. You contributed to the hurt suffered by the victims of the offending.

Submissions

[14]   Ms Lee, on behalf of the Crown, adopted the submissions Mr Johnstone made for the Crown when I gave the sentence indication. She submitted that your offending was serious offending of its kind, involving callousness and indignity to Mr Wang’s body and to his family. She submitted that the offending requires a stern starting point and endorsed the starting point I adopted when I gave the sentence indication. She acknowledged the need for parity in sentencing, and submitted that the starting point adopted in particular for Mr Piao should guide the starting point for your offending. She submitted that a higher starting point than that adopted for Mr Zhang, which was two years and nine months, is justified because you had a more direct involvement in the burial and the desecration of Mr Wang’s body than did Mr Zhang. She referred to other authorities, noting that a starting point of three years’ imprisonment or more is consistent with the starting points adopted in like cases. She accepted that you are entitled to a guilty plea discount and to the various other discounts which I discussed when I gave you the sentence indication.

[15]   Mr Gotlieb, on your behalf, also referred to the submissions he advanced when the sentence indication was given. He then referred to Court of Appeal authority where it was stated that two and a half years’ imprisonment is an appropriate starting point where the body has suffered indignities or has been treated callously.3 He noted that two of your co-defendants have already been sentenced in relation to the same charge, and he referred to the starting point sentences adopted in those cases. He argued that you felt compelled to comply with the directions from the head of the syndicate, and he referred to observations made by Mr Kirker about your mental health and other factors behind your offending. Mr Gotlieb submitted at the sentence indication that a starting point of two years and six months’ imprisonment was appropriate and that there should be no uplift for your previous convictions. He noted your relative youth – you were 20 years old at the time of the offending – and he submitted that you should be entitled to a discount for this. He also referred to your mental health, noting Mr Kirker’s view that it is likely that you were suffering from a substance abuse condition and mood disorder at the time of the offending. He submitted that you have endeavoured to engage in rehabilitative programmes and he argued that you should be entitled to a full credit for any guilty plea. Further, he argued that, rather than impose a cumulative sentence, your current sentence should be uplifted to take into account totality considerations.

[16]   Before me today, Mr Gotlieb has again argued that your involvement in the disposal of Mr Wang’s body was not of your own choice and submitted that you felt compelled to comply with the directions of other more senior syndicate members. He argued that your level of involvement was more akin to that of Mr Zhang than that of Mr Piao. He repeated the submission made at the time of the sentence indication that a starting point of less than three years’ imprisonment would be appropriate, but he acknowledged that no additional aggravating or mitigating factors that were not addressed at the time the sentence indication was given have since been identified.

3      Te Kani v R [2020] NZCA 69 at [35].

Principles and purposes of sentencing

[17]   The key purposes of sentencing in this case are to hold you accountable for the harm you have caused to Mr Wang, to his family and to the community,4 to promote in you a sense of responsibility for and an acknowledgement of that harm,5 to denounce your conduct,6 and to deter you and others from committing like offending.7 The Court also has to take into regard the relevant principles of sentencing and take into account the gravity of your offending, your degree of culpability and the seriousness of this type of offending.8 It is also necessary to consider the general desirability of consistency with appropriate sentencing levels,9 and to be mindful of the need to impose the least restrictive outcome appropriate in the circumstances.10

[18]   The now appropriate approach to sentencing embraces the two-step methodology outlined in Moses v R.11 At the first step, the Court must determine the adjusted starting point for the sentence, incorporating the aggravating and mitigating features of the offending. The second step requires the Court to incorporate aggravating and mitigating factors personal to you. These are calculated as a percentage of the adjusted starting point.

Analysis

Aggravating and mitigating features of the offending – adjusted starting point

[19]   As I noted in the sentence indication, there is no tariff or guideline judgment for sentencing Courts dealing with the charge of being an accessory after the fact to murder. The Courts have recognised that destroying evidence after a person’s life has been criminally taken is a serious offence, requiring denunciation and deterrence.12 The Court of Appeal has recently summarised relevant cases, noting that starting point sentences of two and half years’ imprisonment have been considered appropriate

4      Sentencing Act 2002, s 7(1)(a).

5      Section 7(1)(b).

6      Section 7(1)(e).

7      Section 7(1)(f).

8      Section 8(a) and (b).

9      Section 8(e).

10     Section 8(g).

11     Moses v R [2020] NZCA 296 at [46].

12     R v Te Moana [2018] NZHC 1480 at [13].

where the body has suffered indignities or has been treated callously, and that starting points of three years’ imprisonment are appropriate where arrangements have been made to dispose of the body to assist murderers to avoid arrest in an attempt to defeat the ends of justice.13

[20]   A starting point of three years’ imprisonment has been adopted by the High Court in similar cases involving the disposal of a deceased’s body.14

[21]   Your offending is relatively serious offending of its kind. You knew that the principal offenders had been involved with Mr Wang’s murder. You nevertheless assisted them in tampering with and suppressing evidence. You undertook a variety of tasks to this end, including applying bleach to blood splattered areas in the house where the murder took place. You assisted in cleaning out Mr Wang’s apartment in central Auckland. You acted as a scout when the body was taken to the burial site near Taupo. You assisted in getting the freezer containing Mr Wang’s body out of the van in which it had been transported, and then in getting Mr Wang’s body out of the freezer and into a shallow grave. You assisted in covering the body in quickset concrete, and then in filling the grave with dirt using shovels that you and your co-offenders had brought with you for that purpose. You did not report Mr Wang’s death to the police.

[22]   The offending was clearly premeditated. Its purpose was to defeat the course of justice and for some two years that purpose was achieved.

[23]There are no mitigating features to the offending.

[24]   In my view, your offending was more significant than that of your co-offender, Mr Zhang. According to his sentencing notes, Mr Zhang was involved in disposing of the body in Taupo. He assisted you and others. He also returned on the following day to dig a second deeper grave directly beside the first grave, and then to dig up Mr Wang’s body, drag it into the deeper hole and then rebury it. The starting point adopted by Whata J for Mr Zhang was two years and nine months’ imprisonment.15

13     Te Kani v R, above n 3, at [35] citing R v Raroa [1987] 2 NZLR 486 (CA) at 495.

14     R v Cullen HC Tauranga CRI-2008-070-2188, 23 April 2008; R v Wilkie-Morris [2016] NZHC 259.

15     R v Zhang [2020] NZHC 3350.

Mr Zhang was afforded various discounts (many of which are not available to you) and he was ultimately sentenced to a sentence of home detention for six months.

[25]   Mr Piao had a more significant role than Mr Zhang. He also travelled to the burial site near Taupo. He drove the van used to transport Mr Wang’s body. He assisted in digging the first grave and in placing Mr Wang’s body in that grave and pouring concrete over it. Jagose J considered that Mr Piao’s offending was aggravated by the inherent callousness in disposing of and concealing Mr Wang’s body in a way that amounted to desecration, by entombing it in concrete at an isolated location.16 He also noted that Mr Piao’s involvement was premeditated. The Judge took as a starting point a sentence of three years’ imprisonment. After allowing discounts for various factors, he sentenced Mr Piao to a term of imprisonment of 14 months, to be served cumulatively on a term of imprisonment Mr Piao was already serving for drug related offending.

[26]   In my view, and despite Mr Gotlieb’s submissions to the contrary, your offending was more significant than that of either Mr Piao or Mr Zhang. They were involved primarily in disposing of the body. You did more – you cleaned up the scene of the murder; you sanitised Mr Wang’s apartment. I adopt a starting point of three years and three months’ imprisonment.

Aggravating and mitigating factors personal to Mr Yu

[27]I now turn to consider your personal circumstances.

[28]   You have a number of previous convictions. Most are for drug related offending. None of them are relevant for present purposes. I do not uplift my starting point because of your previous convictions. There are no other personal aggravating features.

[29]There are however mitigating factors.

16     R v Piao [2020] NZHC 1839.

[30]   As Mr Gotlieb reminded me, you were 20 years old at the time of the offending. You are currently 24 years of age. I accept that age is a factor which falls for consideration in this case. It is generally accepted that young people are more prone to impulsive behaviour. They are also more likely to be affected by a sentence of imprisonment. The Court must balance the gravity of a young offender’s conduct against his or her culpability and against his or her rehabilitative and reintegrative prospects.17

[31]   Mr Kirker in his report suggested that, at the time of the offending, you were psychologically vulnerable. He noted your isolation from your family, your culture- based sense of obligation, your lack of vocational options, your substance abuse disorder, your distressed mood, your unbalanced lifestyle, your anti-social attitudes, your impulsivity and limited problem solving skills, and your anti-social and criminal associates. He also referred to your uncertain sense of identity and to the cognitive distortions you suffer from. He suggested that your profile at the time was typical of that of a young person who criminal leaders might seek to exploit.

[32]   Considering these matters in the round, I allow you a discount of 15 per cent to recognise both your youth and your vulnerable psychological condition at the time of the offending. I accept that you were exploited by the head of the drug syndicate concerned because of your then vulnerability, the sense of obligation you were then under, and the perceived threat to you and your family.

[33]   I also accept that you have undertaken various rehabilitative courses whilst in custody for your drug related offending. You have completed courses and obtained a Diploma of Recognition in relation to matters such as taking charge of your life, living well and dealing with relationships. You have completed an Odyssey “Meth and Me” course and an Asian Family Services “Strengths Reinforcements Stage 1” course. You were close to completing a group therapy programme as well as a medium intensity rehabilitation programme. When you were charged with the current offending, you had to stop attending these courses. You have also undertaken four hours of a group psych-education course relating to the harm methamphetamine causes. You are

17     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446; Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

currently waiting to be accepted for a six month prison drug treatment programme. I allow you a further 10 per cent discount to acknowledge your attempts at rehabilitation and your rehabilitative prospects.

[34]   Finally, you are entitled to a discount for your guilty plea. You were charged on 22 June 2020. Your trial was scheduled for late July 2021. However, a full interview of the primary witness against you was only disclosed by the police in October 2020. You then promptly sought a sentence indication. A hearing for that purpose was initially fixed for 9.00 am on 12 February 2021, however, that date had to be adjourned because Mr Kirker’s report was not then available. The sentence indication was adjourned to 9 March 2021 The guilty plea was entered immediately after the indication was given. You have not delayed the resolution of this matter. In these circumstances, I allow you a full 25 per cent discount from the sentence I would otherwise impose.

[35]   This takes the total available discounts to 50 per cent of my starting point sentence of three years and three months’ imprisonment. The sentence I will impose in relation to the offence of being an accessory after the fact to the murder of Mr Wang, is one of one year, seven months and two weeks’ imprisonment.

[36]   Mr Gotlieb invited me to deal with this matter by uplifting the sentence you are currently serving.

[37]   I do not consider that this is appropriate. Being an accessory after the fact to a murder is different in kind from the drug related offending in respect of which you are currently in custody. There is no connection either in time or in circumstance. In my view, a cumulative sentence is necessary. Because I am only imposing a sentence for the one offence, the totality of your offending does not strictly fall for consideration.18 I have nevertheless considered the sentence you are currently serving, to ensure that your total period of imprisonment is not disproportionate to the gravity of your overall offending. I do not consider that what would effectively be a 19 and a half month uplift on your current sentence renders the total sentence you will serve manifestly excessive. The impact of the sentence I am about to impose is, in effect, to extend

18     Sentencing Act 2002, s 85(1).

your  non-parole  period,  but  in my  view  that is not inappropriate.    It reflects the seriousness of the additional offending.

[38]I note that the same approach was adopted by Jagose J for Mr Piao.

Sentence

[39]Mr Yu, will you please stand.

[40]   In respect of the offence of being an accessory after the fact to the murder of Baochang Wang, I sentence you to a term of imprisonment of one year, seven months and two weeks. This sentence is to be cumulative on the sentence you are currently serving for drug related offending.

[41]Mr Yu, you may stand down.

Wylie J