Sentencing Act 2002 – minimum term of imprisonment – manifestly unjust – calculation – lengthy planning – level of brutality – personal circumstances – foreign national – Chai v R [2020] NZCA 202 – Booth v R [2016] NZSC 127

R v Gu [2023] NZHC 2109.

Zhicheng Gu appeared for sentencing after being found guilty of murdering Wang Baochang.

Gu was a member of an organised crime syndicate that imported ephedrine and methamphetamine, and manufactured methamphetamine in New Zealand.  Baochang was part of this group.

Members of the syndicate heard that Baochang wanted to kidnap the leader, find out where the drugs were being housed, and displace him as leader. In response, members of the syndicate met with Baochang, ordered him into a chair at gunpoint and began questioning him. Eventually Gu stabbed Baochang multiple times in the chest and abdomen. The victim died almost immediately.

Gu and members of the syndicate disposed of Baochang’s body off the Desert Rd near Taupō, in a shallow grave covered with concrete. They later returned to re-bury the body, concerned the grave was too shallow. Baochang was not reported missing for more than two years.

When sentencing Gu, the court accepted that planning and premeditation met the threshold for being calculated and involving lengthy planning as an aggravating factor under s 104(1) of the Sentencing Act 2002. But the threshold for brutality, cruelty, depravity or callousness was not met under s 104(1)(e).

The Crown accepted that, in the circumstances, it would be manifestly unjust to impose a minimum period of imprisonment (MPI) of 17 years. A starting point of 16 years and six months’ MPI was appropriate.

The court allowed a discount of six months to reflect Gu’s status as a foreign prisoner. No discount was allowed for remorse due to Gu maintaining his innocence. A further deduction of 842 days was allowed to reflect pre- and post-sentence detention. The total discount was 34 months.

Applicable principles: whether a minimum period of imprisonment would be manifestly unjust – whether the aggravating factors in s 104 of the Sentencing Act applied – whether the murder involved calculated or lengthy planning – whether the murder was committed with a high level of brutality, cruelty, depravity or callousness.

Held: Gu received a minimum period of imprisonment of 13 years and eight months.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.

R v Gu [2023] NZHC 2109.