IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2013-042-1362 [2015] NZHC 89

THE QUEEN

v

GUANZHI YU

Counsel:	J M Webber with A Mills for Crown
B Daniell-Smith with M Vesty for Defendant	

Sentence:	
5 February 2015	

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]       Mrs Yu, you have been found guilty of the manslaughter of your husband,1

and the attempted murder of your daughter-in-law.2

[2]       On any view, what has happened here is deeply tragic.   It has destroyed a family’s hopes of happiness in a new country.  In particular, your actions have ended the life of the person  you most loved, and  on whom any chance of  your own happiness depended.

What you did

[3]       You are a retired chemistry teacher.   You and your husband Shubai Gao moved to New Zealand from China in 2012.  You lived with your son and daughter- in-law in St Ann Place in Nelson, together with your grandchildren: a toddler and a
baby.  You and your husband worked at your son’s pizza shop and helped look after

1	Section 171.
2	Crimes Act 1961, s 173.

R v YU [2015] NZHC 89 [5 February 2015]

the grandchildren.  You were isolated, with few friends.  You do not speak English at all. You depended on your husband to get by.

[4]       You have unfortunately a history of mental illness.   As a result you were hospitalised in China in 2004-05.  It was accepted by the Crown that at the time of your offending you were mentally disordered, and suffering a disease of the mind.  It was, and remains, a major depressive disorder.    Professor Melsopp, Dr Miller and Dr Galvin all gave evidence to that effect.   But only Dr Galvin considered you reached the higher threshold of insanity as a matter of law.  The jury rejected your defence of insanity.

[5]       Your marriage was generally a happy one. Your son’s marriage was not. You did not like your daughter-in-law. Your husband however did like her.

[6]       In January 2013 your son sent your daughter-in-law back to China. You were left to look after your grandchildren. You carried on working at the pizza shop at the same time. You became tired and irritable. You lost weight. Your behaviour became odd. A family friend suggested to your son that you were “not right in the head”.  He attempted to take you to a doctor. You refused to go.

[7]      Six weeks later your daughter-in-law returned.   Your husband had been instrumental in getting her to come back.  You were very unhappy about her return. You made inquiries about arranging a divorce for your son.  You searched for a new wife for him on an internet dating service.

[8]       Subsequently it was established that the day before the incident at St Ann Place, on 2 March 2013, you posted an entry in the diary page of a Chinese social media website.  It was entitled “My last words to my son and friends”. You said you were exhausted and that your daughter-in-law was making your son miserable.  You did not want him to have to live like that.  You implied that you would kill your daughter-in-law and granddaughter and then commit suicide.  You told your son to sell his business, leave Nelson and take his son with him.

[9]       On the morning of 3 March 2013 you had an argument with your daughter- in-law.  Shortly afterwards you, your husband and son went to the pizza shop.  You and your husband had a heated argument about what had occurred, outside.  Passers- by were so concerned they called the police.  You walked off.  Your son drove your husband home to look for you.  As your son returned to the pizza shop, he spotted you nearby on St Vincent St and he took you back to the pizza shop.  Again, you walked off.

[10]     You returned to the house.  You walked into your daughter-in-law’s bedroom armed with one or two knives.  Your husband, your daughter-in-law and your grandchildren were all in that room.  You stabbed your daughter-in-law in the chest. She fled the room.  Outside she called 111 on her mobile phone.  On the recording, played to the Court, your husband can be heard shouting at her to go to hospital immediately.

[11]     Nobody knows quite what happened next.  It appears your husband tried to disarm you.  You bit him on the left forearm, then stabbed him once in the left hand side of his chest with the other knife.  The wound was 8-10cm deep.  You punctured his lung and cut through the main artery and vein to his left lung.   It seems your grandchildren were also present throughout the attack.  Your husband was holding the baby when you attacked your daughter-in-law.

[12]     Your daughter-in-law ran down St Ann Place.   Your husband attempted to follow her but collapsed in the driveway.  You ran past your dying husband, chasing after your daughter-in-law.  As you reached the end of the street the police (who had been at the pizza shop) arrived. Your daughter-in-law collapsed in front of one of the police cars.  Before the officer could get out of his car and intervene, you stabbed her again.   It is fortunate she survived both attacks.   After arrest your behaviour was bizarre to say the least. You were laughing, and then singing.

[13]   You were acquitted of murdering your husband, but convicted of his manslaughter. You were also convicted of the attempted murder of your daughter-in- law.

[14]     I have a victim impact statement from your daughter-in-law.  She says that she is trying her best to forget about what occurred, but that she still feels scared and that things such as knives remind her of the incident.  She remains afraid that you continue to blame her for what has occurred, and until a true expression of remorse in relation to her is given, is afraid that you might offend against her again.

[15]     I have a victim impact statement from your son.  As he puts it, the incident has robbed him of his entire family.  His father was killed, you were admitted to a psychiatric hospital, and his wife has now left to live in Auckland with the couple’s daughter.  Your son blames himself for not insisting on your seeing a doctor when your mental state became again clouded in February 2013.  He pleads that I continue to let you remain at the same hospital and serve your sentence there, because he has observed how your condition has improved while under medical care.

Features of offending

Aggravating features

[16]     I start by considering the aggravating features of your offending.  The Crown has pointed to four.

[17]     First, you used a weapon in your attacks on both victims: a kitchen knife with a blade in excess of 10 cm in length.  The use of this weapon is a serious aggravating factor.3

[18]     Secondly, the violence you used was serious.  I have described it already.  I have assessed the degree of violence used and resulting serious injuries together to avoid double-counting.4  Together they form a serious aggravating factor.

[19]     Thirdly, your victims were vulnerable.5   The initial attack on your daughter- in-law came out of the blue.  Your husband was holding the baby when you started

3	R v Taueki [2005] 3 NZLR 372 (CA) at [31(d)].
4	At [31(c)] and [31(a)].
5	At [31(i)].

attacking.   In disarming you, he may well have been trying to protect your young grandchildren, and certainly your daughter-in-law.

[20]     Fourthly, your attack on your daughter-in-law was premeditated.6   By at least the night before the attack, you had resolved to kill her.  You pursued her after she escaped from your initial attack and kept stabbing her, even when police officers arrived and intervened.  This is a serious aggravating factor in relation to your attack on your daughter-in-law.   By contrast your attack on your husband was not at all premeditated.

Mitigating features

[21]     There are no mitigating features of your offending, such as provocation.  But there are significant mitigating features relating to you as an offender.  I will return to these later.

Sentence starting point

[22]     The Crown accepts that concurrent sentencing is appropriate.  In the end it makes little practical difference which offence is treated as the lead for sentencing purposes.  On the one hand, you killed your husband – but unintentionally.  On the other hand you intended and tried to kill your daughter-in-law – but failed.  I have concluded that the appropriate starting point for each offence is about the same.  But there will have to be an adjustment to reflect the totality of what you have done.

[23]     I need now to identify the starting point for each offence.

[24]     Precedent decisions of this Court and the Court of Appeal provide guidance as to where to set a starting point for your sentence. I am not going to discuss the law in detail.  That is not appropriate here.  The guideline judgment for serious violent
offending, R v Taueki,7  can be applied to both offences here.8    Your offending is

6	At [31(b)].
7	R v Taueki [2005] 3 NZLR 372 (CA).
8           Marsters v R [2011] NZCA 505 at [17].  See also R v Pengelly [2013] NZHC 527 at [35].  An attempted  murder  conviction carries a  finding of  an  intention to  kill.    That  increases the seriousness of the offending and means slightly higher sentences apply: R v He CA 169/05, 28
October 2005 at [29]; R v Pengelly [2013] NZHC 527 at [35].

properly characterised at the upper end of band two in Taueki, carrying a starting point of between five and ten years.

Manslaughter

[25]     The Crown submits that a starting point within the range 7 to 9 years is appropriate for the manslaughter conviction.

[26]     The defence says that is too high.   But on the other hand, elsewhere in Mr Daniell-Smith’s submissions he says that it is “not easy to disagree with the range that the Crown have suggested”.

[27]     After identifying what  I consider the most  relevant  precedent  sentencing decisions,9 I conclude that a starting point of eight years’ imprisonment is the most appropriate to the manslaughter conviction.

Attempted murder

[28]     The same Crown and defence submissions as to starting point are made in relation to the attempted murder conviction.

[29]     Again  after  identifying  what  I  consider  the  most  relevant  precedent sentencing decisions,10 I conclude that a starting point of eight years’ imprisonment is also appropriate to the attempted murder conviction.

Conclusion

[30]     I will sentence you concurrently on both convictions.   But to reflect the totality  of  what  has  occurred  –  serious  violent  offending  against  two  separate victims, albeit arising from the same initial incident – I adopt an overall starting
point of nine years’ imprisonment.

9	R v Ames HC Rotorua CRI 2008-263-19, 30 October 2009; R v Edwardson HC Rotorua CRI-
2006-069-1101, 27 April 2007.
10	R v Hemopo [2014] NZHC 2950; R v Mullen [2014] NZHC 917; R v Prasad HC Auckland CRI
2009-004-23295, 5 April 2011; R v RKS HC Tauranga, CRI 2007-070-2622, 10 December 2007;
and R v Khan CA 83/02, 4 December 2002..

[31]     I now address factors relating to you personally, rather than the offending, that might alter the starting sentence either up or down.

Aggravating factors

[32]     The  Crown  accepts  that  there  are  no  personal  aggravating  factors.    So everything that I now discuss is relevant only to a potential reduction in the starting point.

Mitigating factors

Previous good character

[33]     You are 60 years of age.   You have no prior convictions.   That justifies a reduction of 10 per cent on the starting point sentence.

Remorse

[34]     The Crown accepts that you are disbelieving and remorseful in relation to your husband’s death.  Indeed that has been to such an extent that there have been concerns that you have harboured notions of suicide, with the intention of rejoining him.    It  is  more  difficult,  however,  to  identify  any  remorse  in  relation  to  the offending against your daughter-in-law.  I have mentioned already how important a true expression of such remorse would be for your daughter-in-law’s recovery.  It is not too late to make some amends for your actions.

[35]     I allow a further discount of 5 per cent for remorse.

[36]     A defendant whose culpability is reduced because of a mental disorder active at the time of the offending may receive a discount on their sentence.11

[37]     The jury rejected your defence of insanity.  But the unanimous evidence of the  psychiatrists  and  psychologist  was  that  you  were  suffering  from  a  deep depressive disorder with elements of dissociative behaviour at the time of the offending.   Having heard the whole of the evidence at the trial, I have no doubt whatever that it was a very significant contributing factor to your actions on 3 March
2013.

[38]     I am satisfied that a further discount of 25 per cent is appropriate in these circumstances.12

Appropriate term of imprisonment

[39]     Considering  all  these  matters  together,  a  discount  of  40  per  cent  of  the starting sentence is appropriate.  The outcome is a term of imprisonment of five years and five months.

[40]     The major issue today is whether I should make an order that you serve your sentence in a hospital as a special patient.13

[41]     The defence urges that I take this course.  As does your son, in his victim impact statement. The Crown, in fairness, is relatively agnostic as to disposition.

[42]     I have sought a report from Dr Miller, one of the psychiatrists who gave evidence at trial, under s 35 of the Criminal Procedure (Mentally Impaired Persons)
Act 2003.   After describing your psychiatric history, he reports on its fluctuating

11	R v Bridger [2003] 1 NZLR 636 (CA) at [42]-[43]; E (CA689/10) v R [2010] NZCA 13, (2011)
25 CRNZ 411 at [68]-[70];  R v Hemopo [2014] NZHC 2950 at [57]-[66]; R v Pickering HC Napier CRI 2010-020-4067, 1 September 2011; R v Prasad HC Auckland CRI 2009-004-23295,
5 April 2011; R v RKS HC Tauranga, CRI 2007-070-2622, 10 December 2007.
12	See the example discounts ranging from 12 to 30 per cent set out in E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [71]-[88].
13	Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(1)(a)(i).

state.   It is clear that events such as the offending, the trial, and conviction, have impaired your mental state.  On the other hand, treatment at Hillmorton Hospital has on each occasion improved that mental state.   He reports that you now appear to have returned to a more usual, relatively settled mental state.   You are receiving medication to maintain your normal mood.

[43]     Dr  Miller  advises  that  in  his  opinion  your  mental  state  amounts  to  a continuing mental disorder, and that you meet the criteria for an order for detention as a special patient under s 34(1)(a) of the Act: that is, that your mental impairment requires compulsory treatment or compulsory care either in your interests or in the safety of the public generally or of particular members of the public.

[44]     Dr Miller says that the nature of your disorder is not one that commonly results in the need for long term treatment in a psychiatric unit.  Your disorder is more intermittent in nature.  He advises that you could be treated in prison.  But it is likely that you would experience prison as an alien environment and deteriorate with little option but for readmission.   It requires little in the way of stressors for your mental state to deteriorate.  Linguistic, cultural and personality factors will make it difficult for you to adapt to prison.

[45]     Although Dr Miller does not express a firm recommendation, I am satisfied that this is an appropriate case where you should indeed serve your sentence of imprisonment as a special patient in a psychiatric hospital.

[46]     That does not mean that you will necessarily serve the whole of the sentence period in a psychiatric hospital, as opposed to prison.   Section 47 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 provides that if in the opinion of the Director of Area Mental Health Services, a special patient detained pursuant to s 34(1)(a)(i) is fit to be released back to prison, that course may be taken.
However, as I said in another case recently14  prisoners are entitled to receive all
“medical treatment that is reasonably necessary”.15   In the event that release back to prison from a psychiatric hospital results in material mental deterioration – a course

14	R v Hemopo [2014] NZHC 2950 at 68.
15	Corrections Act 2004, s 75.

that is entirely predictable – the law will likely require your further readmission to a psychiatric hospital.

Sentence

[47]     Stand please, Mrs Yu.

[48]   On each conviction you are sentenced to five years and five months’ imprisonment.   The sentences are to be served concurrently.   That is, you are sentenced to a total of five years and five months’ imprisonment.

[49]     Pursuant  to  s  34(1)(a)(i)  of  the  Criminal  Procedure  (Mentally  Impaired Persons) Act 2003, I order that you be detained in a suitable hospital as a special patient.

[50]     You may stand down now.

Stephen Kós J

Solicitors:
Crown Solicitor, Nelson. Daniell-Smith & Co, Nelson