R v Toby

[2024] NZHC 3804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-004586

[2024] NZHC 3804

THE KING

v

VINCENT TUTAKI STEVEN TOBY

Hearing:	13 December 2024
Counsel:	SE Arnerich for Crown H Kim for Defendant
Judgment:	13 December 2024

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. H Kim, Auckland.

R v TOBY [2024] NZHC 3804 [13 December 2024]

Introduction

[1]    Vincent Toby, you are for sentence on seven charges: unlawfully getting into a motorcar;1  discharging a firearm with reckless disregard for the safety of others;2  two charges of unlawfully possessing a firearm;3 and three of unlawfully possessing ammunition.4

Background

[2]    Your offending forms part of intergang hostility between the Tribesmen and Killer Beez. In May and June of 2022, no fewer than 20 shooting incidents and nine of arson occurred between the two gangs. That provides context for your offending which began 24 May 2022.

[3]    At approximately 6.50 pm, you and three others drove to the home of a member of the Tribesmen in Flat Bush. Your group had at least three firearms: a 20-gauge shotgun, a 12-gauge shotgun, and a third unspecified firearm. Your group fired at least eight shots toward the home. A car in the driveway was hit, as was the home itself. Those in the home returned fire resulting in bullet damage to nearby properties and cars.

[4]    You and  the  others  fled  in  a  car  specifically  stolen  for  the  purpose.  You abandoned that car, then got into another which was waiting for you at an arranged meeting point. You and your group drove away at speed.

[5]    On 26 May 2022, hence two days later, you and three others were driving in Mt Albert. Police signalled to stop, but instead, the car you were in drove away at speed. You and your group travelled to a neighbouring suburb. Once there, everyone got out, jumped several fences, and went into a property. You and your group had a bag, which was left at that property. You and your group then got into a second car and left. This activity was observed by the Police helicopter, and the second car was stopped.

1      Crimes Act 1961, s 226(2); maximum penalty, two years’ imprisonment.

2      Crimes Act, s 198(2); maximum penalty, seven years’ imprisonment.

3      Crimes Act, s 50A; maximum penalty, five years’ imprisonment.

4      Crimes Act, s 45(1); maximum penalty, four years’ imprisonment.

[6]    Police recovered the bag from the property that had originally been in the first car. It contained two prohibited AR-15 semi-automatic rifles, one of which was

.223 calibre. The bag also contained:

(a)17 rounds of .223 calibre ammunition.

(b)60 rounds of 9 mm ammunition.

(c)Three rounds of 12-gauge shotgun ammunition.

[7]A search of the first car revealed:

(a)117 rounds of .223 calibre ammunition.

(b)Six rounds of 12-gauge shotgun ammunition.

[8]    One of your associates was charged with possessing the firearms and ammunition. But Police later discovered a photograph of you holding one of the firearms.

[9]    On 12 August 2022, you made two Police interviews. In the first, you denied possession of the firearms. After the first, you told Police you wanted to make a “deal”, and the charges against the associate should be dropped. You were told if you admitted the offending, that would not necessarily affect his charges. You took legal advice and made a second interview. You said you were the driver of the first car, and you had taken the firearms to the home to be hidden.

[10]   You  also  said  you  had  been  involved  in  the  Flat  Bush  offending  on   24 May 2022. You admitted going to the home in the stolen car. You said once there, you fired multiple rounds from a shotgun. You said you were shooting at cars rather than the home, and you did not intend to shoot anyone.

[11]   The Arms Act (1983) charges against the associate were  dropped  in  October 2022. You later challenged the admissibility of your second Police interview. Another Judge of this Court rejected that challenge in June this year.5

Aggravating factors

[12]   Three things make your offending more serious. First, it involved intergang warfare, a matter of significant public concern. Second, the Flat Bush offending was premeditated, meaning planned. You were part of a group specifically targeting homes believed to be connected to an opposing gang. You and your group used stolen cars to minimise risk of detection. Third, there was a high risk of serious harm or worse to an occupant, neighbour, or anyone who merely happened to be present. Even if it is correct that you were firing at cars rather than homes which, frankly, I doubt very much doubt, that does not make your offending less serious given the risks inherent to that activity.

Starting point

[13]   I have been referred by the lawyers to a variety of somewhat similar cases, and I thank them for their assistance.6 Confrontations of this nature can give rise to myriad charges. No cited case involves identical charges or facts. That said, your offending is a bad example of its kind for the reasons I explained a little earlier.

[14]   The Crown says I should adopt a four-year starting point for the Flat Bush offending. Your lawyer, Ms Kim, says I should adopt a starting point of between three and a half and four years’ imprisonment. A more significant difference of opinion arises in relation to the Arms Act offending. The Crown contends I should add 18 months for it. Ms Kim says add only six months for the Arms Act offending.

[15]   I consider the Crown’s approach is correct in relation to both aspects. The Flat Bush offending was serious for the reasons I have explained. The Arms Act offending was serious in its own right. Unlawful possession of a single firearm can

5      R v Another & Toby [2024] NZHC 1527.

6      Hutchinson v R [2020] NZCA 655; R v Jolley [2018] NZHC 93; R v Waihape [2012] NZHC 198; and R v Tamati [2012] NZHC 221.

attract a starting point  of between two and three years’ imprisonment.7     I adopt     18 months to ensure the overall starting point is not too severe (what lawyers call the “totality principle”), and because your possession of the firearms and ammunition is somewhat incidental to the Flat Bush offending.

Mitigating factors

[16]   You were charged 13 August 2022. You pleaded guilty 8 November 2024. You seek a 20 percent discount for your pleas.

[17]   Guilty plea discount depends on several things including, unsurprisingly, its timing. Strength of the Crown case is also relevant,8 as is whether you benefited from a plea arrangement.9

[18]   The Crown initially charged you with committing a crime with a firearm in relation to the Flat Bush shooting, a more serious offence. It varied the charge, and you pleaded guilty, as you know, after my sentence indication. You benefited from that plea arrangement. Your pleas could not be regarded as prompt given the overarching timeline. The evidence against you was also overwhelming given your second  Police  interview.  That  is  presumably  why  you  sought  to  exclude  it.  For completeness, I gave one of your co-offenders greater discount, but he pleaded guilty a little earlier.10 More significantly, he broke (gang) ranks in doing so, even though he is younger than you. All of which is to explain why I give you 15 percent, not 20.

[19]   Your pre-sentence report and a 2023 psychological report prepared in relation to, if I recall correctly bail, reveal that you are 30 years old. You were raised by your grandparents as your mother and father were imprisoned before you were born. They appear to have done their best for you; you told the probation officer who wrote the pre-sentence report you were close to both, and your upbringing was “good”. The psychological report presents a somewhat different picture, including that you became

7      Campbell v R [2022] NZCA 579 at [18].

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [58]–[60].

9 At [62].

10     R v Baker [2024] NZHC 3152.

fascinated with gang culture. Sadly, you wanted to join a gang from a young age. That decision, coupled with your use of drugs and alcohol, provides some explanation for your criminal background and this offending. Your sister’s suicide might also have formed part of the mix. I note too a possible diagnosis of post-traumatic stress disorder.

[20]   You seek a discount of 20 percent. That figure is somehwat too high, in part because of public policy considerations in this context, including the seriousness of gang-related offending. Your probation officer captures the point well. He notes this:

… It might be argued Mr Toby was a follower, caught up in pack violence. However, that violence was premeditated and specifically directed at the household concerned. Mr Toby’s willingness to discharge firearms without concern for public safety together with his illegal possession of firearms and explosives, justifies his high risk classification.

[21]   I, therefore, allow 10 percent in recognition of your background and related trauma that have likely contributed to your offending.

[22]   You also seek a five percent discount for remorse, noting you offered to engage in restorative justice, and based on your letter to me as the sentencing Judge. I regret to say I am not persuaded you are genuinely remorseful. Your restorative justice offer struck me as hollow. You would have been well aware that opposing gang members would have no interest in that process. And, sentencing is not an exercise in ticking boxes. I repeat earlier sentiment: your guilty pleas reflect considered self-interest in the face of overwhelming evidence.

[23]   I do, however, allow a five percent discount as you have three children, all of whom are being cared for by others, as their mother, I gather, is also in custody. Let me speak to you plainly here Mr Toby: if you want them to have a different life than you have had, you will need to leave the gang. If you do not, you will continue to commit serious crimes and you will continue to be sent to prison. There is every risk your children will follow in your footsteps. Do you want that cycle to continue, just as it did with you and your parents? Please listen carefully to what I have to say.  You, and you alone, have the power to break that cycle. Do you understand me?

[24]   You have a reasonably extensive criminal record. Of relevance today, you have 11 convictions for unlawfully taking or using motorcars. Your unlawful use of motorcars formed an integral part of the Flat Bush offending. I, therefore, as I signalled at the sentence indication, add three months for this aspect of your criminal record.

[25]This produces a sentence of four years and one month’s imprisonment.

[26]   I do not impose a minimum period. Instead, I leave matters to the Parole Board in terms of your release.

Sentence

[27]Mr Toby, please stand.

[28]   On the charge of discharging a firearm, I impose a sentence of four years and one month’s imprisonment. I impose 18 months’ imprisonment on  each  of  the Arms Act charges. I impose 12 months’ imprisonment on the unlawful use of a motorcar charges. All sentences run together. So, your overall sentence is four years and one month.

[29]Stand down.

……………………………..

Downs J