R v Challis - [2008] NZCA 470

IN THE COURT OF APPEAL OF NEW ZEALAND
CA500/2008
CA518/2008
[2008] NZCA 470
THE QUEEN
v
JAMES WILLIAM CHALLIS
TYRONE TEMAPPI BOX
Hearing:16 October 2008

Court:O'Regan, Potter and Fogarty JJ
Counsel:M J Bullock for Appellants

D R La Hood for Crown

Judgment:6 November 2008 at 11.30 am

JUDGMENT OF THE COURT

The appellants’ appeals against sentence are dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]       The appellants pleaded guilty to the charges of manslaughter (of a baby girl) and participating in an organised criminal group. They were sentenced by Gendall J to imprisonment for seven years, with a minimum period of imprisonment of four years. They appeal against sentence.
[2]       There are four grounds of appeal, namely:
(a)       The starting point adopted by the Judge was too high;
(b)Insufficient credit was given for the guilty pleas of the appellants;
(c)Insufficient credit was given for the youth of the appellants;
(d)The minimum period of imprisonment of four years was too high in all of the circumstances.

[3]       We will deal with each of these grounds in turn. Before doing so, we set out the Judge’s summary of the factual background.
Facts
[4]       The background to the offending was that gang warfare and tension was heightened in Wanganui in late 2006 and 2007. The tension was between the Mongrel Mob and Black Power. The Judge described the appellants as sympathisers with the Mongrel Mob, although they were not patched members. He mentioned the possibility that they were hoping to become prospects, but their counsel in this Court, Mr Bullock, said that neither of the appellants were prospects or members of the Mongrel Mob.
[5]       The events which led to the charges to which the appellants pleaded guilty occurred on 5 May 2007. The starting point was an altercation which occurred at a rugby league game between members and associates of the Mongrel Mob and members and associates of Black Power. One of the Black Power participants was the father of the baby girl who was killed later in the day.
[6]       After the game, a number of Mongrel Mob members drove to an area where Black Power members (including the father of the victim) lived. They made aggressive comments to residents of the street before driving away. The victim’s father contacted associates and arranged for them to come to the house, anticipating that Mongrel Mob members and sympathisers were likely to return for a further confrontation. The Mongrel Mob people then attacked a suspected Black Power member at a residential address. They then drove to a hotel where they met more Mongrel Mob associates and sympathisers, and decided to return to the gang pad. It was at this stage that the appellants joined the Mongrel Mob members (they had not been involved in the earlier incidents, apart from the initial incident at the rugby league game).
[7]       The cars in which the Mongrel Mob sympathisers were travelling went past the address of the victim’s father, and the Black Power…

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 R v Challis

Details

AGLC: R v Challis [2008] NZCA 470
Case: [2008] NZCA 470
Decision Date: 6 November 2008

CaseChat Overview and Summary

The appellants, James William Challis and Tyrone Temapapi Box, were convicted of manslaughter and participating in an organised criminal group in relation to the death of a baby girl, Jhia Te Tua, during a gang confrontation in Wanganui. They appealed against the sentences of seven years imprisonment, with a minimum of four years, arguing that the starting point, the credit given for their guilty pleas, the credit given for their youth, and the minimum period of imprisonment were all too high. The Court of Appeal considered each of these arguments in turn, finding that the starting point was appropriate given the seriousness of the offending, the credit given for the guilty pleas and the youth of the appellants was also appropriate, and the minimum period of imprisonment was within the available range and served the purposes of denunciation and deterrence. The appeal was dismissed, and the original sentence upheld. The court found that the sentence and the minimum period of imprisonment were both within the range available to the Judge. The appeal is therefore dismissed.

Orders