R v Moses

[2022] NZHC 3089

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754

[2022] NZHC 3089

THE KING

v

ANTHONY PAPAROA MOSES ALAN TUTERE COOPER

Hearing:	24 November 2022
Appearances:	C P Howard for Crown M J James for Mr Moses J D Bell for Mr Cooper
Sentence:	24 November 2022

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

R v MOSES & COOPER [2022] NZHC 3089 [24 November 2022]

[1]    Mr Moses and Mr Cooper, you appear for sentence today having been found guilty following a Judge alone trial on three charges of intentionally damaging property in circumstances where you knew or ought to have known that danger to life was likely to result.1 You were also found guilty on one charge of participating in an organised criminal group.2

[2]The maximum sentence for all charges is ten years imprisonment.

Background

[3]    The charges were laid following a series of incidents that occurred in Otara on the afternoon of 20 November 2020.

[4]    At the time of the offending you were both living in Hamilton. On the morning of 20 November 2020 you began driving your vehicles to Auckland. You stopped first at a service station in Huntly, where five vehicles arrived in convoy at 11.33 am. These were led by a white Ford Ranger Utility vehicle driven by Mr Paul Cassidy, a well- known member of the Killer Beez gang. You, Mr Moses, were driving an orange Holden Commodore motor vehicle whilst you, Mr Cooper, were driving a grey Honda Torneo.

[5]    All five vehicles parked in a corner of the service station forecourt. CCTV footage showed the occupants of the vehicles socialising with each other around their vehicles. A short time later they gathered for a group photograph.

[6]    A notable feature of the photograph is that several members of the group were wearing yellow and black coloured items of clothing. It is well known that the Killer Beez has adopted yellow and black as its colours. In addition, virtually everybody in the photograph is shown making a gesture associated with the Killer Beez. This involves the middle finger of each hand being extended upwards, with the remaining fingers folded down.

1      Crimes Act 1961, s 269(1).

2      Section 98A.

[7]    The vehicles left the service station in convoy led by Mr Cassidy’s Ford Ranger. They then travelled to the Mobil service station in Mercer, where they were captured on CCTV arriving one after the other at 12.12 pm. A few minutes earlier two other vehicles had arrived at the same service station. One of these was a black Mercedes driven by Mr Sean Thompson, who was to be tried with you but entered guilty pleas mid-way through the trial. The other vehicle was a silver BMW sedan. Both the Mercedes and the silver BMW were involved in the events that occurred in Otara later in the day. CCTV footage shows that occupants of these two vehicles immediately began socialising with those in your convoy. The expanded group then posed for another group photograph. Once again members of the group were photographed making the one-fingered gesture associated with the Killer Beez.

[8]    The convoy then travelled to the fast-food outlets just off the motorway at Bombay, arriving there at 12.43 pm. You, Mr Moses, can be seen on CCTV footage wrestling or play fighting with Mr Thompson in the carpark there. CCTV footage from inside a KFC restaurant in this area shows the occupants of their vehicles sharing a communal meal. They returned to their vehicles at approximately 1.20 pm and left the carpark a few minutes later.

[9]    At 1.56 pm a CCTV camera installed at the intersection of Hospital and Massey Roads in Mangere showed the seven vehicles turning into Massey Road, a short distance away from Rosella Road. Your vehicles were still part of the convoy, as were those driven by Mr Cassidy and Mr Thompson. The vehicles then travelled to an address in Rosella Road that was occupied by Mr Michael Crawford, a senior member of the Killer Beez gang.

[10]   Four convoys of vehicles were then filmed leaving Rosella Road at approximately 4.30 pm. Your vehicles were in the second convoy that left the address and travelled to a residential address in Otara Road, believed to be associated with the Tribesmen gang. One or more persons got out of the vehicles and began firing multiple shots at this address. This caused damage in the form of broken windows and bullet holes in the wall of the address. The convoy then left Otara Road and travelled to an address in Pearl Baker Drive, where further shots were fired at another address

believed to be associated with the Tribesmen gang. You then left the area and travelled south, where you kept a low profile as the police investigation into the incident began.

[11]   Your vehicles remained part of the convoy throughout this period, as is demonstrated by the fact that at one stage you followed the other members of the convoy when they did two “U-turns” on East Tamaki Road, most probably in an effort to throw off any persons who might be following them.

[12]   In my reasons for verdict I rejected the explanations you gave at your trial.3 In effect you both said you were in Auckland for innocent purposes on 20 November 2020 and became unwittingly and unknowingly caught up in the events that took place that afternoon. I found that from at least the gathering at the service station in Huntly you were both knowingly and intentionally involved in the events that occurred thereafter.4

[13]   I also found that Mr Moses was in possession of a small firearm at the time of the shootings in Otara Road and Pearl Baker Drive.5 I made this finding on the basis of the evidence given by one of the Crown witnesses at the trial. She said the driver of the orange Holden Commodore motor vehicle had a small gun in his hand. She described it as resembling a little hand pistol or handgun. She relayed this information to the police in a 111 call shortly after witnessing the events that occurred on Pearl Baker Drive.

[14]   I was also satisfied that shots were fired from the vehicle being driven by   Mr Cooper. I based this finding on the evidence given by another of the Crown witnesses, who came out of her address on Pearl Baker Drive just moments after shots had been fired from a vehicle she described as a grey Honda Torneo.

[15]   You were both found guilty of two of the charges of intentionally damaging residential properties because you provided assistance by driving others to those addresses.  You  were found guilty on the third  charge of intentional damage under   s 66(2) of the Crimes Act 1961 because I was satisfied that you were part of a group

3      R v Moses [2022] NZHC 2627 at [47]-[60].

4 At [61].

5 At [69].

that formed the common unlawful purpose of discharging shots at residential addresses believed to be occupied by persons associated with the Tribesmen gang. I was satisfied that shots were fired by members of another convoy at a third residential address in Capstick Road whilst carrying out that common purpose. The same finding underpinned my guilty verdict on the charge of participating in an organised criminal group.

Starting point

[16]   Your offending has obvious aggravating features. First, it amounted to a form of vigilante justice meted out by a gang that considered it needed to exact retribution on another gang for some real or imagined slight. Secondly, it was plainly premeditated and for a considerable period before the offending occurred. It was also well orchestrated as is demonstrated by the number of vehicles involved in the different convoys. Thirdly, it involved the use of firearms on multiple occasions. These were used in broad daylight in a built-up suburban area where innocent victims could easily have been injured or killed.

[17]   At the trial I heard evidence from several persons who resided in the vicinity of the addresses in Otara Road and Pearl Baker Drive. They described the frightening events that occurred as they heard gunshots ringing out in their street in circumstances where they and their families were present in their addresses in the vicinity of the shootings.

[18]   I have also received a victim impact statement from another person who lived nearby. She describes the ongoing effects that these events have had for her and her family.

Victim impact statements

[19]   In setting the starting point for the sentences to be imposed on you I gain the greatest assistance from the sentences imposed on other offenders within the group. The leader of the group was Mr Crawford. The Judge who sentenced him took an

overall starting point of ten years six months imprisonment.6 However, this incorporated his involvement in an earlier incident that occurred on 16 November 2020, as well as charges of being in unlawful possession of firearms and ammunition. On the charges to which you are to be sentenced the Judge selected a starting point of eight years imprisonment. Mr Crawford’s offending, and his role as leader of the group, obviously place him in a more serious position in terms of culpability.

[20]   Mr Cassidy, the driver of the Ford Ranger that led the convoy to Auckland, pleaded guilty to the same charges as you as well as a charge of aggravated burglary. All of the charges related to the offending that occurred on 20 November 2020. The Judge who sentenced Mr Cassidy adopted a global starting point of eight years imprisonment.7 He selected a starting point of seven years imprisonment on the charges on which you have been found guilty.

[21]   The same Judge, Jagose J, sentenced Mr William Nelson-Bell, who pleaded guilty to the same charges as those on which Mr Cassidy was sentenced. Jagose J also took a starting point in Mr Nelson Bell’s case of eight years imprisonment, of which seven years related to the charges for which you appear for sentence.8

[22]   Another co-defendant, Mr Adrian Awhi, pleaded guilty to the same charges. Mr Awhi travelled to Auckland as a passenger in your vehicle, Mr Moses.9 Venning J considered that Mr Awhi’s culpability was significantly less than others in the group. He adopted an overall starting point of four years six months imprisonment.

[23]   Judges have varied in their approaches to selecting the lead charge for sentencing purposes. In Mr Crawford’s case Powell J took the charges of intentional damage as being the lead charges. In the cases of Messrs Cassidy and Nelson-Bell, Jagose J took the same approach. However, in sentencing Mr Awhi, Venning J took the lead charge as being that of participating in an organised criminal group.

6      R v Crawford [2020] NZHC 1588.

7      R v Cassidy [2022] NZHC 2918.

8      R v Nelson-Bell [2022] NZHC 2796.

9      R v Awhi [2022] NZHC 2711.

[24]   I propose to adopt the same approach as Venning J. In my view the charge of participating in an organised criminal group encompasses in large part the culpability inherent in the other charges. I propose to adopt a global starting point in relation to that charge and not apply any uplift for the charge of intentional damage. However, in practical terms it does not matter which approach is used because the end sentence should be the same.

[25]   The Crown submits that an overall starting point of around seven years is warranted in your case. It says your culpability is broadly similar to that of Mr Cassidy and Mr Nelson-Bell. Like Mr Cassidy, you both travelled from Hamilton to Auckland knowing and intending to assist in carrying out a plan to inflict violence on persons associated with the Tribesmen. You then took others with you in your vehicles to the scenes where the offending occurred. Mr Moses, you were in possession of a small firearm during this period, whilst you, Mr Cooper, carried a passenger who fired shots at the address in Pearl Baker Drive. You were both involved in the incidents from the beginning until the end. Neither of you can realistically be described as “foot soldiers” as your counsel submit.

[26]   I accept, however, that  your overall culpability is slightly less than that of Mr Cassidy. Mr Cassidy was clearly the leader of the convoy that drove from Hamilton to Auckland. Mr Nelson-Bell resided in Auckland and had greater contact with Mr Crawford, who undoubtedly planned these events. However, the level of reduction must be modest because of the fact that you, Mr Moses, were found in possession of a firearm and shots were fired from your car, Mr Cooper. I propose to adopt a starting point of six years six months imprisonment to reflect your overall culpability on all charges.

Aggravating factors

[27]   You both have extensive lists of previous convictions, but the Crown acknowledges these are not relevant for present purposes. I therefore apply no uplift to reflect aggravating factors personal to you.

Mitigating factors

Mr Moses

Section 27 report

[28]   In addition to the pre-sentence report I have received a report tendered under s 27 of the Sentencing Act 2002. This reveals that you were brought up by your mother and stepfather and were subject to physical and other forms of abuse from an early age. You were a disruptive influence at school, no doubt partially caused by the fact that at the age of seven years you were struck by a truck whilst you were cycling along the road. This caused serious head injury that will have lifetime effects. This means you suffer from shortened attention span and memory problems as well as amnesia, problem-solving deficits, issues with judgment and an inability to understand abstract contexts.

[29]   Not surprisingly, you began consuming drugs and alcohol at an early age and engaging in other forms of substance abuse. In your adolescent and teenage years you began living on the streets after your mother ejected you from the family home. This was your lifestyle for the next five years because you were unable to live to your family. Thankfully, you now have a supportive partner, although you and she have both encountered issues raising your six young children.

[30]   Given your deprived background it is no surprise you became involved in gang life. You say you initially joined the Killer Beez because of the protection they could provide whilst you were serving a sentence of imprisonment. Your association with the gang led directly to your decision to become involved in the events that led to the present charges.

[31]   The report suggests you are now committed to rehabilitating yourself and learning how best to cope with your cognitive issues. This will obviously be necessary if you are to exercise better judgment about your choice of associates and lifestyle in the future.

[32]   I am satisfied there is some nexus between the present offending and the factors identified in the report. The report also assists in gaining insight into your rehabilitative prospects. In addition, the issues the report identifies suggest that you are likely to find it more difficult than others to serve a sentence of imprisonment. I propose to provide a credit of ten months to reflect these factors.

Time spent on EM bail

[33]   A sentencing court has the power to reduce a sentence to reflect time spent subject to restrictive EM bail conditions.10 The level of discount will generally range between 20 and 40 per cent of the time spent on EM bail depending on the level of restrictions imposed and the degree of compliance by the defendant.

[34]   You have been on EM bail subject to a 24 hour curfew between 20 May 2021 and the delivery of my verdicts on 13 October 2022. You breached the terms of your EM bail on two occasions during 2022 although I accept neither breach was particularly serious. I propose to allow a discount of five months to reflect the fact that you have spent approximately seventeen months subject to restrictive EM bail conditions.

Efforts taken to shorten the trial

[35]   Your counsel submits that you should also be given a modest discount for co- operating in efforts that were made to reduce the length of the trial. She says this allows the Crown to present its case in an efficient manner, thereby saving a considerable amount of Court time. There is some validity in this submission, although I suspect the Crown’s approach may have been driven largely by the encouragement I gave it at the commencement of the trial to reduce the evidence it called to the bare essentials. Nevertheless, I accept you cooperated in this process. I propose to allow a discount of three months to reflect this factor.

10     Sentencing Act 2002, s 9(2)(h).

Summary

[36]   I have therefore identified mitigating factors totalling one year six months. This means, Mr Moses, the sentence is reduced to one of five years imprisonment.

Mr Cooper

[37]   Mr Cooper, your counsel submits I should provide you with discounts for the same mitigating factors as applied to Mr Moses.

Section 27 report

[38]   The s 27 report I have received from your counsel reveals that you were born into an unstable family. You initially lived with your father and mother in Auckland and then briefly in the South Island until you were two years of age. At that point your father became responsible for your care and this resulted in you having an extremely unstable childhood during which you moved regularly between family households.

[39]   At the age of six years you were beaten so badly in an incident of domestic violence that you were admitted to hospital and the police became involved. Notwithstanding this fact you were returned to your father’s care and became subject to further physical abuse over the next two years.

[40]   You ran away from home at the age of eight years and began living on the streets until another family took you in. Surprisingly, you continued to attend school whilst you were living on the streets because this provided you with a source of food. Your education was hindered by the fact that you are dyslexic and have always encountered problems with literacy.

[41]   You began using alcohol and drugs at an early age and your consumption of alcohol in particular became heavy through your teenage years. However, although you grew up in an environment where gang membership was common, you say you have never been a member of, or even closely involved with, any gang.

[42]   When you were 19 years of age you met your present partner and you have remained living together since that time. You each credit the other as a source of stability in your home life.

[43]   Six years ago two of your daughters died in infancy in successive years. This sent you into a depressive spiral in which you used methamphetamine for the first time. Your health then deteriorated to the point where you suffered a near fatal infection. You say you have not used methamphetamine since this time.

[44]   Although your background has undoubtedly been deprived and unfortunate it is difficult to see a firm nexus between many of the factors identified in the s 27 report and your involvement in the present offending. However, it is clear that your association with members of the Killer Beez gang was a significant factor even though you may not have had formal links with the gang. I am prepared to accept the factors identified in the report may well have played a role in you choosing to associate with people who led you to become involved in the present offending. It is also likely that the issues identified in the report may affect you whilst you are in prison.   Like     Mr Moses, I am prepared to allow a discount of ten months to reflect these factors.

Time spent on bail

[45]   You were subject to a grant of ordinary bail rather than EM bail. this included a condition that required you to be subject to an evening curfew at your address between the hours of 7 pm and 7 am during the period leading up to your trial. Your counsel submits you should be given a discount to reflect this factor.

[46]   An overnight curfew is not nearly as restrictive as a 24 hour curfew whilst subject to a grant of EM bail. The alternative would also have been to spend the time awaiting trial in custody. However, I accept that the curfew would have been a source of some inconvenience to you given that it lasted for an extended period. Although it may be regarded as generous, I propose to allow a discount of three months to reflect this factor.

Efforts taken to shorten the trial

[47]   I also accept that you should receive the same discount as Mr Moses to reflect the fact that you co-operated in enabling the trial to be conducted in the most efficient way possible. I allow a discount of three months to reflect this factor.

Summary

[48]   I have therefore identified mitigating factors totalling one year four months. This reduces your sentence to one of five years two months imprisonment.

Sentences

[49]   Mr Moses, on the charge of participating in an organised criminal group you are sentenced to five years imprisonment. On all other charges you are sentenced to two years imprisonment. All sentences are to be served concurrently.

[50]   Mr Cooper, on the charge of participating in an organised criminal group you are sentenced to five years two months imprisonment. On the remaining charges you are sentenced to two years imprisonment. All sentences are to be served concurrently.

[51]Stand down.

Lang J