R v Thompson

[2022] NZHC 3091

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754

[2022] NZHC 3091

THE KING

v

SEAN CONRAD THOMPSON

Hearing:	24 November 2022
Appearances:	C P Howard for Crown J Ding for Defendant
Sentence:	24 November 2022

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

R v THOMPSON [2022] NZHC 3091 [24 November 2022]

[1]    Mr Thompson, you appear for sentence having pleaded guilty during your trial to one representative charge of intentional damage to property in circumstances where you knew, or ought to have known, that danger to life may result,1 one charge of aggravated burglary,2 and one charge of participating in an organised criminal group.3 The charges of intentional damage and participating in an organised criminal group carry maximum sentences of ten years imprisonment. The charge of aggravated burglary carries a maximum sentence of 14 years imprisonment.

Background

[2]    The charges were laid following a series of events that occurred in Otara on the afternoon of 20 November 2020. On that date you drove from Hamilton to Auckland as part of a convoy of vehicles that travelled to an address in Mangere. You joined the convoy at a service station in Mercer, where you were seen socialising with the occupants of other vehicles that had travelled there from Hamilton.

[3]    After leaving Mercer you travelled in the convoy to Bombay, where you shared a meal with those in the other vehicles. The convoy then travelled to an address in Mangere. This was occupied by Mr Michael Crawford, a leading figure in the Killer Beez organisation. Your vehicle was depicted in CCTV film footage travelling away from that address approximately 15 minutes later. It was subsequently filmed in the vicinity of a residential address in Blampied Road. Persons from another vehicle entered that address carrying firearms. It is evident from what they said to the occupants of the address that they were searching for somebody who, fortunately, was not present at the time.

[4]    Your vehicle was then filmed turning into Pearl Baker Drive, where shots were fired a short time later by a person or persons in another convoy at a residential address believed to be occupied by a person associated with the Tribesmen motorcycle gang. At or around the same time, other convoys of vehicles travelled to addresses in Otara Road and Capstick Road. Occupants of those vehicles fired numerous shots at residential addresses in these streets. Those addresses were also believed to be

1      Crimes Act 1961, s 269(1).

2      Section 232.

3      Section 98A.

occupied by persons associated with the Tribesmen gang. The attacks on the three residential addresses caused damage in the form of broken windows and bullet holes to the exterior of the properties.

[5]    You and the other persons involved in these events then left the South Auckland area and maintained a low profile whilst the police investigated the shootings.

Starting point

[6]    Your culpability lies in the fact that you were involved in organising other persons to travel from Hamilton to Auckland in order to participate in the events that occurred on 20 November 2020. You did this through messages you sent to a Facebook Messenger group chat on the morning of 20 November 2020. The chat had been established on 18 November 2020 as a means by which members and associates of the Killer Beez could communicate with each other about matters of common interest. The messages sent to the chat on the evening of 19 November and the morning of 20 November make it clear that something major was about to happen that day. At 9.01 am on 20 November you posted the following message:

… AO killers we on route to the destination … AAOO KBZDUP

[7]    After leaving the address in Mangere, as I have recorded, you drove your vehicle to two of the addresses where offending took place. The Crown does not suggest you were responsible for firing shots at the address at Pearl Baker Drive or that you entered the address in Blampied Road where the aggravated burglary was carried out. Nevertheless, your guilty pleas recognise the fact that you agreed to participate in an unlawful plan to enter the Blampied Road address carrying firearms and to involve yourself in the attack on one of the residential addresses believed to be occupied by persons with the associated with the Tribesmen gang. You also knew that similar attacks were to be carried out at other addresses occupied by such persons.

[8]    Your offending has obvious aggravating features. First, it amounted to a form of vigilante justice meted out by a gang that considered that 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 convoy. 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.

[9]    In setting the starting point for the sentence 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.4 However, this incorporated Mr Crawford’s involvement in an earlier incident that  occurred on     16 November 2020, as well as charges of being in unlawful possession of firearms and ammunition. The starting point taken in relation to the charges for which you appear for sentence was one 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.

[10]   Mr Cassidy pleaded guilty to charges of intentional damage (x 3), aggravated burglary and participating in an organised criminal group. All charges related to the offending that occurred on 20 November 2020. Jagose J adopted a global starting point of eight years imprisonment on these charges.5 This was made up of five years imprisonment on the intentional damage charges together with uplifts of two years and one year respectively on the charges of participating in an organised criminal group and aggravated burglary. The same Judge adopted the same approach in relation to Mr William Nelson-Bell, who pleaded guilty to the same charges as Mr Cassidy.6

[11]   Mr Adrian Awhi also pleaded guilty to the same charges. He was a passenger in one of the vehicles that travelled from Hamilton to the address in Mangere and then went on to the addresses in Otara Road and Pearl Baker Drive where shots were fired. Venning J considered Mr Awhi’s culpability was significantly less than others in the group and adopted a starting point of four years six months imprisonment.7 Mr Awhi’s

4      R v Crawford [2020] NZHC 1588.

5      R v Cassidy [2022] NZHC 2918 at [27].

6      R v Nelson-Bell [2022] NZHC 2796 at [19].

7      R v Awhi [2022] NZHC 2711 at [34].

culpability is obviously considerably less than yours given the minimal role he played in events.

[12]   Earlier today I selected a starting point of six years six months imprisonment for your co-defendants at trial, Mr Moses and Mr Cooper.8 However, your culpability is somewhat greater than theirs because you pleaded guilty to the charge of aggravated burglary on which they were acquitted at trial. That charge involved serious offending in its own right.

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

[14]   I propose to adopt the approach taken by 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 will therefore select a global starting point on that charge and not apply any uplift for the discrete charges of intentional damage and aggravated burglary. In doing so I note that it does not really matter which approach is adopted because the end sentence should be the same.

[15]   Jagose J selected a starting point of five years imprisonment when he gave you a sentence indication earlier this year and your counsel submits I should do the same.9 This starting point comprised three years imprisonment on the charges of intentional damage together with an uplift of two years on the charge of participating in an organised criminal group. I am sure you now regret not accepting that indication because circumstances have changed, and it is no longer of any effect.

[16]   You received the indication at a time when the Crown could not identify your vehicle as having travelled to any of the addresses where offending occurred. This means the indicated sentence did not include the charge of aggravated burglary and it

8      R v Moses [2022] NZHC 3089.

9      R v Cassidy [2022] NZHC 1951 at [14](b).

also reflected the fact that there was no evidence you had travelled to any of the addresses where shots were fired. Your culpability was therefore restricted to the encouragement you provided on the Facebook Messenger group chat in the preparatory phase. That is no longer the case.

[17]   I assess your offending as being broadly at the same level as that of Messrs Cassidy and Nelson-Bell.  It  is  also  broadly  similar  to  that  of  Mr  Moses  and Mr Cooper. However, I accept there is no evidence that shots were fired from your vehicle or that any person in your vehicle was carrying weapons. I therefore propose to adopt a global starting point of six years nine months to reflect your culpability on all charges.

Aggravating factors

[18]   You have a previous conviction for aggravated robbery sustained in 2014. You received a sentence of eight years three months imprisonment on that charge and were ordered to serve a minimum term of imprisonment of four years three months. This indicates the offending was serious in nature. I accept the Crown’s submission that an uplift of six months is appropriate to reflect the fact that you have not learned your lesson from the previous sentence that was imposed on you for similar offending. It follows that the sentence is one of seven years three months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

Section 27 report

[19]   In addition to the pre-sentence report I have received a helpful report tendered under s 27 of the Sentencing Act 2002. This reveals that you grew up having no knowledge of your father and therefore no knowledge of your paternal whakapapa. You also grew up completely disconnected from your cultural identity.

[20]   Your mother was only 15 years of age when you were born. This meant that your grandfather raised you for the first seven years of your life until he died, tragically leaving you with no parent figure. You were then moved back and forth between

whānau until you finally settled with your mother and stepfather. This resulted in you both being subject to, and witnessing, frequent episodes of physical violence and other forms of abuse.

[21]   You grew up in circumstances of poverty where acquisitive crime, or crimes involving dishonesty, were viewed as a necessary means of survival. Your stepfather was also a patched gang member and many of his whānau were closely associated with gangs. This inevitably led you down a path of gang membership, offending and prison.

[22]   Your gang affiliations no doubt contributed to you receiving the sentence of eight years three months imprisonment on the charge of aggravated robbery in 2014. The report states that you are devastated to now find yourself back in prison a short time after your release. It also states that you have accepted positions of responsibility in prison, and that you have adopted a leadership role in keeping younger inmates away from violence. This is also reflected in a letter that I have received from your Unit Manager and I have also received numerous certificates indicating you have completed rehabilitative courses during the period you have been in prison on remand.

[23]   The report also refers to your acknowledgement of, and remorse for, your offending. You say you are now drug and alcohol free and determined to stay this way. You also have a supportive partner and a young child for whom you wish to provide. You say you have now distanced yourself from the Killer Beez, who were formerly the only type of family you knew. You say you want the chance to live a normal life to raise your children and earn an honest living.

[24]   I accept that your involvement in the events for which you are to be sentenced today is likely to have been influenced by your deprived upbringing and resulting gang connections. In addition, I consider there are indications within the report that you are capable of, and intent on, rehabilitation and reintegration into society. I propose to allow a discount of one year two months to reflect these factors.

Guilty pleas

[25]   The only other mitigating factor for which you are entitled to credit is that for your guilty pleas. As I have already observed, you entered your pleas after the commencement of the trial. This would usually reduce the level of discount available considerably. Despite this fact the Crown suggests, as does your counsel, that a discount of up to 25 per cent may be available.

[26]   I do not accept this submission. You entered your guilty pleas only after you became aware during the trial that the Crown had identified CCTV footage showing your vehicle as one of those that had travelled to both Blampied Road and Pearl Baker Drive. Up until that point the Crown had not identified your vehicle as being present at or near any of the scenes where the shootings and aggravated burglary had taken place. I do not consider you should receive such a significant discount when you only entered your guilty pleas after you realised the Crown case against you was much stronger than you had originally anticipated. However, I accept the point made by both counsel that, had you been aware of this evidence earlier, you may have entered guilty pleas earlier. Although it may be regarded as generous, I propose to make an allowance of 13 months, or approximately 15 per cent, to reflect this factor.

[27]This means the sentence is reduced to one of five years imprisonment.

Sentence

[28]   On the charge of participating in an organised criminal group you are sentenced to five years imprisonment. On the remaining charges you are sentenced to two years imprisonment. All sentences are to be served concurrently, which means the effective sentence is one of five years imprisonment.

[29]Stand down.

Lang J