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…

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 Toby

Details

AGLC: R v Toby [2024] NZHC 3804
Case: [2024] NZHC 3804
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case before the Auckland Registry of the High Court of New Zealand involved Vincent Toby, who was sentenced on multiple charges related to gang violence, including unlawfully entering a motorcar, discharging a firearm recklessly, and unlawfully possessing firearms and ammunition. The charges stemmed from incidents of intergang hostility between the Tribesmen and Killer Beez, which had escalated to numerous shooting and arson incidents. Toby was part of a group that engaged in retaliatory attacks, using stolen cars to avoid detection.

The court had to determine the appropriate sentence, considering various factors such as the seriousness of the offences, the role Toby played, and any mitigating circumstances. The court found the offences to be particularly egregious due to the premeditated nature and the significant risk to public safety. The starting point for sentencing was set relatively high due to the severity of the crimes. Toby's guilty pleas and the strength of the evidence against him, including his own admissions during police interviews, were considered in determining the discount for his plea. Despite Toby's background and personal challenges, the court was not persuaded that he was genuinely remorseful, and his offer to engage in restorative justice was deemed insincere.

The final sentence imposed was four years and one month in total, with specific terms for each charge running concurrently. The court emphasized the importance of Toby breaking the cycle of criminal behaviour and gang involvement to provide a better future for his children.

Orders