Hearing:	13 March 2024
Court:	French, Palmer and Cooke JJ
Counsel:	G A Walsh for Appellant in CA648/2022 M J James for Appellant in CA4/2023 J D Bell for Appellant in CA246/2023 C P Howard for Respondent
Judgment:	19 April 2024 at 2.15 pm

JUDGMENT OF THE COURT

AMr Cooper’s application for leave to appeal his sentence out of time is granted.
BMr Cooper’s appeal against sentence is dismissed.
CMr Moses’ appeal against sentence is dismissed.
DMr Thompson’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Table of Contents

Introduction [1]
The facts of the offending [9]

Messrs Moses and Cooper [9]
Mr Thompson [9]

The sentencing [13]
Were the starting points too high? [22]

Messrs Moses and Cooper  [24]
Our view  [33]
Mr Thompson  [35]

Were the discounts given for personal mitigating factors inadequate? [42]

Mr Thompson  [42]
Guilty plea  [42]
Section 27 report  [44]
Mr Cooper  [49]
Efforts to shorten the trial  [49]
Mr Moses  [57]
Efforts to shorten the trial  [57]
Credit for time spent on electronically monitored bail  [58]
Section 27 report  [60]

Conclusion [65]
Outcome [67]

Introduction

On the afternoon of 20 November 2020, numerous members and associates of the Killer Beez gang including the three appellants carried out a concerted plan to take retaliatory action against the Tribesmen gang.
The plan involved the group driving in convoys to certain suburban streets in South Auckland and shooting from their vehicles at houses believed to be occupied by members of the Tribesmen. Three houses were targeted, one on Otara Road, another on Pearl Baker Drive and a third on Capstick Road. At a fourth house on Blampied Road, two armed men got out of their vehicle, unlawfully entered the house and accosted an occupant demanding to know where his son was.
Fortunately, no one suffered any serious physical injuries but those in the targeted houses and surrounding neighbourhoods, including young children, were understandably frightened. There was also some damage to property in the form of broken windows and bullet holes.
Each of the appellants was charged with three counts of being a party to intentional damage to property knowing that danger to life was likely to result,[1] one count of being a party to aggravated burglary[2] and one count of participating in an organised criminal group.[3]
[1]Crimes Act 1961, ss 66 and 269(1).
[2]Sections 66 and 232(1)(a).
[3]Section 98A. They were also charged with a fourth charge of intentionally damaging property but were discharged of that charge at the end of the Crown case.
The three appellants entered pleas of not guilty to all charges and were tried together in a judge alone trial before Lang J. During the trial, Mr Thompson abandoned…

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 Moses v R

Details

AGLC: Moses v R [2024] NZCA 121
Case: [2024] NZCA 121
Decision Date: 19 April 2024 at 2.15 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals against sentences imposed on three members of the Killer Beez gang, Anthony Paparoa Moses, Sean Conrad Thompson, and Alan Tutere Cooper, who participated in a retaliatory attack against the Tribesmen gang in South Auckland. The appellants argued that the starting points for their sentences were too high and that insufficient discounts were given for mitigating factors. Moses and Cooper, who drove vehicles in the convoys and were in possession of firearms, argued their starting points should have been four years, like that of a minor participant, rather than six and a half years. Thompson, who organised travel to Auckland and drove his vehicle in the convoy, argued his starting point should have been five years, not six years and nine months. The Court found that the starting points were appropriate, considering the roles of the appellants and the significant danger posed to the public. The Court also found that the discounts for mitigating factors, including guilty pleas, efforts to shorten the trial, and Section 27 reports detailing the appellants' troubled backgrounds, were adequate and in line with case law. The appeals against the sentences were dismissed.

Orders