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…

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 [2021] NZHC 1048
Case: [2021] NZHC 1048
Decision Date: 11 May 2021

CaseChat Overview and Summary

Gaoxiang Yu appeared in the High Court of New Zealand, Auckland Registry, for sentencing after pleading guilty to being an accessory after the fact to the murder of Baochang Wang. The offence was committed pursuant to s 176 of the Crimes Act 1961, with the maximum penalty being seven years' imprisonment. The court had to determine the appropriate sentence, taking into account the aggravating and mitigating factors of the offending and the personal circumstances of the defendant.

The legal issues the court was required to decide included the appropriate starting point for the sentence, considering the nature and seriousness of the offending, and the extent of any discounts to be applied based on the defendant's age, psychological vulnerability, and attempts at rehabilitation. The court also had to consider the need for consistency in sentencing and the principles of proportionality and totality.

The court's reasoning and outcome were as follows: The court determined that the defendant's offending was relatively serious, involving premeditation and callousness towards the victim and his family. The court adopted a starting point of three years and three months' imprisonment, considering the defendant's involvement in cleaning up the murder scene, sanitising the victim's apartment, and assisting in the burial of the body. The court allowed discounts for the defendant's youth, vulnerable psychological condition at the time of the offending, and attempts at rehabilitation, resulting in a total discount of 50% of the starting point. The final sentence imposed was one year, seven months, and two weeks' imprisonment, to be served cumulatively with the defendant's current sentence for drug-related offending. The court considered that a cumulative sentence was necessary as being an accessory after the fact to a murder was different in kind from the drug-related offending.

Final orders: Gaoxiang Yu is sentenced to a term of imprisonment of one year, seven months, and two weeks for the offence of being an accessory after the fact to the murder of Baochang Wang. This sentence is to be cumulative on the sentence the defendant is currently serving for drug-related offending.

Orders