PIAO v R [2020] NZCA 607

PIAO v R [2020] NZCA 607 [2 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA494/2020[2020] NZCA 607BETWEEN YANLONG PIAOAppellantAND THE QUEENRespondentCourt: Kós P, Thomas and Gendall JJCounsel: S L McColgan for AppellantZ A Fuhr for RespondentJudgment:(On the papers)2 December 2020 at 9 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Introduction[1] On 28 July 2020 Mr Piao was sentenced to fourteen months' imprisonment byJagose J in the High Court at Auckland on one charge of being an accessory afterthe fact to murder.1 At the time he was already serving a sentence of four years'imprisonment for various charges involving methamphetamine offending.2 Mr Piaoappeals his sentence of fourteen months' imprisonment on the basis that the Judge did1 R v Piao [2020] NZHC 1839 [Sentencing notes].2 R v Gu [2019] NZDC 16307.not make any reduction for totality in relation to his live term of imprisonment onthe methamphetamine charges.BackgroundIndex offending[2] On 19 August 2017 Baochang Wang was murdered by three associates ofMr Piao. The victim, Mr Piao and the three associates were all engaged in a majormethamphetamine manufacturing operation at the time. Mr Piao subsequently learnedof the murder.[3] As to the general background of that offending, we record this from the Judge'ssentencing notes, dated 28 July 2020, which relevantly state:[4] I turn to your offending. Mr Wang is alleged to have been murderedin Auckland in August 2017 by associates of yours. You found out aboutMr Wang's death soon after it occurred. You saw Mr Wang's body. Mr Wangwas not reported missing, and his location remained unknown until policeexhumed his body in March this year. Your liability is not for murder, butinstead arises independently, occurring after the initial crime is alleged to havebeen committed.[5] In the very early hours of Tuesday, 22 August 2017, you and yourassociates drove to an isolated road off the Desert Road in the Taupo District,to dispose of Mr Wang's body and thereby to suppress evidence of yourassociates' involvement in his death. You and your associates travelled therein multiple vehicles, you driving a van with Mr Wang's body in the rear.On arrival, a shallow grave was dug in wasteland off the isolated road.Mr Wang's body was placed in the grave, and concrete poured over it.You and your associates then returned to Auckland.[6] Mr Wang's death only came to police attention because, in October2019, you advised them of it and its consequences. The police are clear,without your information, Mr Wang's death "would not have beeninvestigated, his body not recovered and persons [not] held to account" forthose matters.Methamphetamine offending[4] Mr Piao's drug offending, for which he had already been sentenced at the timehe approached police regarding Mr Wang's death, is described in Judge Thomas'sentencing notes when she came to sentence Mr Piao and his co-offenders inthe District Court at Auckland for the offending.3[5] From this it is apparent that in January 2018 police executed search warrantsat two properties in Auckland. At the first in Mt Roskill they found an activemethamphetamine laboratory and retrieved substances and items being used tomanufacture the drug. They also found 180 g of powder containingmethamphetamine, but no final figure was provided as to the amount of puremethamphetamine. The Crown advises in its submissions that ESR estimated 3.9 kgof methamphetamine could have been manufactured using the substances located inthe laboratory. Police also found a laser doppler machine worth $100,000 atthe laboratory which had been stolen from the University of Auckland's School ofBiological Sciences.[6] At the second property searched, in Torbay, police found a package that hadrecently been imported and received by Mr Piao. It contained equipment and itemsused in the methamphetamine manufacturing process.High Court decision[7] In his sentencing notes, on the accessory after the fact to murder charge,the Judge found Mr Piao had played an active role in the callous disposal of Mr Wang'sbody. He noted particularly that the destruction of evidence after the taking ofanother's life requires denunciation and deterrence.4 He acknowledged there was notariff judgment for sentencing on a charge of being an accessory after the fact tomurder. But in doing so, the Judge referred to this Court's findings as appropriatestarting points of some two and a half years' imprisonment where the body sufferedindignities or was treated callously,5 and three years where arrangements were made3 R v Gu, above n 2.4 Sentencing notes, above n 1, at [10], citing R v Te Moana [2018] NZHC 1480 at [13].5 At [10], citing Te Kani v R [2020] NZCA 69 at [35]; R v Leach HC Wellington CRI-2006-085-4461, 27 October 2006; R v Wilkie-Morris [2016] NZHC 259; Betteridge v R [2019] NZCA 513at [14]–[15]; and R v Boskell [2015] NZHC 286 which includes in its Annexure B a schedule ofexamples of accessory after the fact to murder sentencing.to dispose of the body at sea.6 The Judge emphasised too that the disposal of a bodyto assist murderers in avoiding arrest is an attempt to defeat justice.7[8] The Judge considered there were no mitigating features of the offending here.It was instead aggravated by the inherent callousness of the disposal and theconcealment of Mr Wang's body in a manner that amounted to "cruel desecration" byentombing it in concrete at an isolated location.8 He said there was premeditation inthe arrangements that were made for Mr Piao to obtain a vehicle and drive withthe body to the Desert Road area. There was no spontaneity, or element of "stupidityor loyalty".9[9] While the Judge noted his suspicions about the circumstances of Mr Wang'sdisappearance, and the later connection of this to the drug offending that was aconsequence of the murder, he was not prepared to hold the drug offending itself asaggravating the later accessory after the fact charge.10[10] Ultimately, an adjusted starting point of three years' imprisonment was seen bythe Judge as appropriate, citing the premeditation in particular.11[11] As to personal mitigating factors, the Judge identified the fact that Mr Piao'sguilty plea came at its earliest opportunity. However, Mr Piao's expressions ofremorse to the pre-sentence report writer were not sufficient to warrant recognition,given that these were somewhat late, being made three years since the offending.12[12] The Judge acknowledged the central point that Mr Piao, "at some risk to[himself] and [his] family", had provided extensive assistance to police in relationto Mr Wang's murder. He accepted that "[w]ere it not for [his] co-operation,Mr Wang's fate would likely have remained unknown".13 The Judge noted that up toa 60 per cent discount from the three year starting point would be available to reflect6 At [10], citing R v Raroa [1987] 2 NZLR 486 (CA) at 495.7 At [10], citing R v Raroa, above n 6, at 495.8 At [16] citing R v Roigard [2016] NZHC 166 at [53]–[54].9 At [16], citing R v Mako [2000] 2 NZLR 170 (CA) at [36]; and R v Leach, above n 5, at [15].10 At [17].11 At [18].12 At [20].13 At [21].the totality of the mitigating factors in the circumstances.14 On this basis, the endsentence was reduced to one of 14 months' imprisonment (rounded down) by applyingthe full 60 per cent discount (22 months). As part of this total discount of 60 per cent,a full 25 per cent for the guilty plea was provided. An effective discount of just over36 per cent, therefore, was applied for Mr Piao's assistance to police.15[13] Finally, the Judge found, in relation to the drug offending for which Mr Piaowas serving a sentence of imprisonment, totality was not a statutorily requiredconsideration under s 85 of the Sentencing Act 2002. Nonetheless, he determined heshould have regard to totality to ensure the total period of imprisonment Mr Piaowould serve was not disproportionate to his overall offending.16 In approaching aproportionality analysis, the Judge found what in effect would have been a 14-monthuplift to the four-year sentence for the drug offending would not have rendered theoverall imprisonment sentence manifestly excessive. The principal impact ofextending Mr Piao's non-parole period beyond November 2020 reflected theseriousness of his additional conviction for being an accessory after the fact tomurder.17Submissions[14] Mr McColgan for Mr Piao identifies the issue on appeal as a narrow one:"should his Honour have provided a further reduction for totality and therefore isthe total end sentence manifestly excessive?"[15] He submits when one stands back and considers what Mr Piao has done toassist in bringing the alleged murderers of Mr Wang to answer for his death, imposinga 14-month sentence for this offending is "wholly out of proportion to the overallcriminality in both sets of offending".14 At [21], citing R v Hadfield CA337/06, 14 December 2006 at [22].15 At [20]–[22].16 At [23], citing Taylor v R [2018] NZCA 444 at [15].17 At [25].[16] Mr McColgan accepts the sentence imposed here was "undoubtedly correct ifbeing imposed on its own". However, he objects to the lack of a totality reductionwhich he says was needed in relation to the overall criminality.[17] He says the failure to make a totality reduction: reduces the reduction Mr Piao properly received for his guilty plea, vitalassistance to the authorities and the jeopardy he has placed himself and hisfamily in as a result of his assistance.[18] If a further reduction for totality is applied, Mr McColgan contends it wouldnot amount to double counting, and he says a failure to provide a further discountwould be to undercount.18AnalysisConstruction of sentence[19] There is no dispute as to the appropriateness of the starting point here.Mr McColgan acknowledges too that the final 14-month sentence was"undoubtedly correct if being imposed on its own". However, he says, and we accept,that a key mitigating feature of the offending at issue was Mr Piao's assistance to theauthorities. Because of his assistance to police, which came "at some risk to [his]family", and was of critical value in bringing Mr Wang's murderers to justice,19 theJudge himself acknowledged that a combined discount of around 60 per cent was bothavailable and appropriate for Mr Piao's early guilty plea, and his "extensive"assistance to the authorities.20 As we have outlined, that assistance was recognised byan effective discount of around 36 per cent.Totality[20] Though the Judge was not sentencing Mr Piao for the distinctmethamphetamine charges and the accessory after the fact to murder offending at the18 Referring to L (CA719/2017) v R [2019] NZCA 676 at [50].19 Sentencing notes, above n 1, at [21] and [6].20 See R v Hadfield, above n 14, at [22], approved in Hessell v R [2009] NZCA 450, [2010] 2 NZLR298 at [23]; Peric v R [2007] NZCA 471 at [7]–[9]; Ong v R [2012] NZCA 258 at [12]–[17]; andAnaru v R [2014] NZCA 283 at [9].same time, he was nonetheless required to consider the totality principle indetermining the appropriate sentence for the accessory offending.[21] In Haywood v R, this Court said:21[11] Therefore, we do not think the end sentence should be approachedsequentially as an adjustment of the appropriate end sentence of the burglaryand assault in order to fit the totality principle. Rather, the analysis should beguided from the outset with the appreciation that the total period ofimprisonment should be in proportion to the gravity of the overall offending.That is so even though technically the result is achieved by adjustingthe second sentence, because the first sentence is already in place. So we thinkthe question is not whether a two year adjustment from the starting point[for the second sentence] is appropriate to satisfy s 85(2). Rather, the questionis whether 13 and a half years would be wholly out of proportion to the gravityof the whole of the offending[22] A sentencing court must be anxious not to impose a second sentence that"potentially could lead to an overall 'crushing' sentence".22 The totality principle isengaged where, as here, an offender is already serving a sentence of imprisonment andthe sentencing court is required to impose a further sentence of imprisonment foran offence committed before the offence which led to the imposition of the previoussentence. The court must at that point look at the offending and "criminal behaviour"in its totality and consider the appropriateness of the total sentence as if the offenderwas before the court for all the offences.23[23] As we see it, that is precisely what the Judge did in the present case. The Judgeexpressly confronted the question of totality. He asked himself whether a totaleffective sentence of five years and two months (four years plus 14 months) would beout of proportion to the gravity of Mr Piao's overall offending.24 The Judge wassatisfied that the addition of 14 months to the existing four-year sentence appropriatelyreflected the seriousness of this additional conviction,25 and thus Mr Piao's overalloffending.21 Haywood v R [2015] NZCA 551.22 At [13].23 R v Bradley [1979] 2 NZLR 262 (CA) at 263–264. See also R v Jeffries [1992] 1 NZLR 134 (CA)at 137; and Geoff Hall (ed) Hall's Sentencing (online ed, LexisNexis) at [SA85.6].24 Sentencing notes, above n 1, at [23].25 At [24].[24] As the Crown properly notes, an adjustment for totality is not automatic.26Proportionality of the total effective sentence to the gravity of the overall offendingwill be determinative. The Judge's proportionality assessment here, in our view, wasappropriate. Mr Piao's methamphetamine offending was plainly serious and of acommercial nature.27 His being an accessory after the fact to murder was alsoparticularly grave in its execution and the resulting concealment of the murder.He played a central role in the transportation of Mr Wang's body to be buried andhelped to conceal it in a particularly undignified way in a remote location. Mr Piaoreceived a substantial and full 60 per cent discount for his guilty plea and assistanceto the authorities (including about 36 per cent for this assistance).28 This ensuredthe effective penalty for that accessory charge was modest in proportion to the actualoffending. We find the Judge was thus entirely justified in coming to the view that atotal effective sentence for both sets of offending of five years and two months wasnot disproportionate to the overall gravity and did not require a totality adjustment.[25] We are not persuaded the one ground advanced for Mr Piao in support of hisappeal has been made out here. The end sentence imposed was appropriate and notmanifestly excessive,29 and the Judge did not err in imposing this sentence. In ourjudgment that end sentence was within the available range for Mr Piao's overalloffending and no error of principle has occurred here.30Result[26] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent26 Ashcroft v R [2014[ NZCA 551 at [32].27 R v Gu, above n 2.28 See above at [19].29 Skipper v R [2011] NZCA 250 at [28].30 Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [36].