Apisaloma Timoti, Angelo Thomsen jailed for manslaughter of Brian James in Mt Roskill, Auckland

A 501 deportee and a King Cobras gang member who went to a Mt Roskill home to either rob the inhabitants or collect a debt - hacking two people with a machete and fatally shooting a third man - have been sentenced to prison for manslaughter.

Apisaloma Timoti, 36, and Angelo Junior Thomsen, 45, have been tried twice for murder over the past year.

The first trial was aborted in August after the presiding judge admonished police and prosecutors for “grossly inadequate” disclosure of investigation documents to the defence. A new judge and jury acquitted both men of murder in March but found them both guilty of an alternative charge of manslaughter, as well as two counts of wounding with intent to cause grievous bodily harm for the machete attacks.

The duo returned to a High Court at Auckland dock on Friday as they were sentenced alongside a third co-defendant, Robin Leota, whose murder charge was dismissed by the judge but who pleaded guilty to illegal possession of a firearm.

Brian James - a 23-year-old barber remembered by family for his charming and endearing personality - suffered two gunshot wounds on the night of Dec 23, 2021, as he struggled with Timoti in a pitch-black bedroom for control of Timoti’s gun. One of the wounds, to his chest, resulted in his death at the scene.

A plan to enter the home where James lived had been in the works since at least 11am that day, Justice Mary Peters noted during today’s hearing, referring to a text message from Leota mentioning “a job” in Mt Roskill. Leota wasn’t present during the attack but prosecutors initially accused him of facilitating the confrontation.

James used and sold drugs, although it’s not clear to what extent, and there’s some indication he owed a $2000 drug debt, the judge said.

Thomsen was allowed into the house willingly, but violence soon erupted as he attacked two occupants with the machete. During the fracas that followed, lasting 10 minutes, Timoti ended up in the darkened bedroom tussling with James and another man for control of his .22 rifle, which had a magazine containing eight bullets.

In their haste to flee the scene after the shooting, Timoti left his jacket behind. In it were his phone, car keys and packing tape - items that helped police to identify him as a suspect and piece together a possible motive for why they had entered the home.

Brian James, 23, (inset) was shot dead at a Glass Rd address in Mt Roskill, Auckland. Apisaloma Timoti, 36, and Angelo Junior Thomsen, 45, have now been sentenced for his manslaughter. Photo / Alex Burton

Defence lawyer Nicola Manning, representing Timoti, suggested her client’s main role that night had been as a driver for Thomsen. He had initially intended to remain outside with the gun as backup but ran inside when the plan started to go awry and was quickly outnumbered, she said.

She argued at trial that the gun might have malfunctioned and fired on its own during the struggle. It was also suggested at trial that the tape in his jacket pocket might have been planted by a witness.

Justice Peters rejected all of those theories today as she sentenced Timoti to eight years and nine months’ imprisonment.

“I do not accept Ms Manning’s portrayal of you as a reluctant participant,” she said, noting a previous request for a gun that was found by police during a search of his text messages. “This was not the first occasion in which you had a serious weapon in our hands.”

The judge also referred to expert evidence at trial suggesting the chances were “remote” of a gun firing without the trigger being pulled.

“It would be highly unusual for a firearm to fire because it’s been dropped or banged on a surface or because it was poorly maintained,” the judge said.

The judge also disagreed that there were any elements of excessive self-defence in the defendants’ actions that night, noting that they were the ones who brought weapons and chose to confront the unarmed occupants of the home.

Apisaloma Timoti, Angelo Junior Thomsen and Robin Leota stand in the dock in the High Court in Auckland at the commencement of their first murder trial in July 2021. Timoti and Thomsen were later found guilty of the manslaughter of Mt Roskill resident Brian James in December 2021. Photo / George Block

Even though Thomsen was not the person who fired the fatal shot, a longer sentence of 10 years and eight months’ imprisonment was ordered for him.

A pre-sentence report suggested that Timoti’s offending was out of character for him and there is a low risk of him re-offending. Thomsen, however, was assessed as a high risk of re-offending. He had an extensive criminal history in Australia, primarily for drug possession and supply, and was sentenced to prison in May 2021 for two counts of assault with a cutting instrument.

Thomsen’s lawyer, David Dickinson, sought sentence reductions for the delay caused by the first trial being aborted and for undue hardship in prison based on violence he’s already suffered in custody. The judge declined both requests.

Despite Timoti’s minimal criminal record, Crown prosecutor Kasey Nihil has asked that he not receive credit for previous good character because at the time of the offending he was a patched member of the King Cobras. Justice Peters declined to consider gang affiliation because there’s no evidence that it had anything to do with the incident, she said.

Leota, also a 501 deportee, was sentenced to one year and eight months’ imprisonment for the shotgun that was found by police during a search of his home.

Four emotional victim impact statements were read aloud during today’s hearing - two in court and two via audio-visual feed from Christchurch. They described James as someone with a “little cheeky grin” who played rugby at school, refereed for younger children and was just embarking on a promising career as a barber.

“All I do is sit and cry every time I look at his urn,” James’ father told the judge.

Another relative said she has been haunted every day since she was tasked with identifying his remains.

“My cousin wasn’t perfect but I loved him,” she said. “He had a rough life, but through it all he dreamed bigger than life itself.”

Eventually, the defendants will be released from prison and return to their families, but it won’t be the same for those who loved James and miss him every day, the eldest member of the family told the court.

“We will be left with a tombstone and broken hearts,” she said.

Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.