Criminal procedure – sentencing – murder – Sentencing Act 2002, s 104(1)(b) engaged – manifestly unjust to impose minimum term of imprisonment of 17 years – manifestly unjust to impose life imprisonment – culpability and available discounts for personal mitigating factors – finite sentence and MPI – concurrent or cumulative sentence – effective end sentence
R v Yu [2023] NZHC 1391.
Gaoxiang Yu (26), his two co-defendants, Zhao and G, and the victim, Wang Baochang, were members of an organised crime syndicate that manufactured and supplied methamphetamine.
Yu was informed by an acquaintance that Wang was planning to rob or kidnap Zhao. Yu passed this information on to Zhao.
In August 2017, Zhao told Yu he intended to confront Wang and asked Yu to be present.
Two days later, Zhao informed Yu and G of his plan to kill Wang if he admitted his intention to rob him. If this were to happen, Yu was to stand behind Wang, hold him down and cover his mouth while G stabbed him with a knife.
That same evening, Zhao drove Wang and his then-girlfriend, Z, to the address under a false pretext. Yu met Wang at the door, armed with an unloaded gun.
Zhao ordered Wang to sit in a chair, bound his hands and feet and started questioning him, while Yu pointed the gun at him. An associate was told to go out and tell Z that Wang would be staying at the property to manufacture drugs.
Yu and G left the room to discuss the plan to kill Wang. G told Yu to be prepared to “take action”. They agreed on a hand signal that would prompt Yu to get a towel to cover Wang’s mouth.
Zhao called Yu and G back to the room. Zhao left the property. Yu and G gave Wang some methamphetamine. G gave Yu the signal and Yu went to the kitchen to get a towel. Yu walked behind Wang and covered his mouth. G stabbed Wang in the chest and abdomen.
Wang attempted to defend himself. He grabbed G’s wrists. They both fell to the ground. When G released himself from Wang’s grip, he stabbed Wang five to six more times in the chest. Wang died from his injuries shortly afterwards.
Yu and G showered and waited for further instructions from Zhao.
Zhao asked Yu and the associate to find a suitable place to bury Wang. In the meantime, Wang’s body was placed in the bathtub and was covered with ice.
In the days following, Yu and an associate put bleach on the blood-splattered parts of the house, cleaned out Wang’s apartment, removed drug manufacturing equipment and paraphernalia, repaired structural damage and repainted, recarpeted, and purchased new furniture.
Yu, G, and the associate drove around Auckland looking for a suitable place to bury Wang’s body. The body was starting to decompose, so a chest freezer was bought.
A burial site off Desert Rd, near Taupō, was settled on. Yu and two associates shared a Google location pin with the group. The associate transported the freezer with Wang’s body inside and Yu and G followed in a separate car.
The group carried the freezer and its contents from the van to the burial site. Wang’s body was placed in a shallow grave. Yu and G then filled the grave and covered the body in quick-setting concrete.
Because Zhao had misgivings about the depth of the grave, G and three others later returned to the site and reburied Wang’s body.
Zhao told Z he was arranging for Wang to return to China. Z left New Zealand shortly afterwards.
Wang was not reported missing for more than two years. The murder did not come to light until one of those involved in the burial was arrested on other charges.
In January 2018, Yu was arrested on raft of serious drug charges arising out of two police operations. In August 2019, he was sentenced to six years’ imprisonment.
In June 2020, Yu was charged with being an accessory after the fact to murder. In May 2021, he was sentenced to 19 months, two weeks’ imprisonment, to be served cumulatively with the above sentence.
In June 2022, Yu was released on parole, having served three years, seven months and 12 days as a sentenced prisoner. The day before Yu was due to be deported to China, he was again arrested and charged with Wang’s murder, leading to his immediate recall to prison in July 2022. In May 2023, Yu pleaded guilty to Wang’s murder.
Applicable principles: Whether murder involved calculated or lengthy planning – whether murder committed with high level of brutality, cruelty, depravity or callousness – whether manifestly unjust to impose minimum term of imprisonment (MPI) of at least 17 years – whether manifestly unjust to impose MPI of 10 years – effect of discounts – assistance – time pre- and post-sentence detention – social and family isolation – cultural factors – substance abuse disorder – vulnerability – foreign national – age – adjustments for totality and parity – whether concurrent or cumulative finite sentence – whether necessary to prolong effective end sentence as measured by parole eligibility date
Held: Sentence of 15 years’ imprisonment with MPI of eight years, to be served cumulatively with drug and accessory to murder sentences.
Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law Committee and Parole Law Committee.
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