Duell v Police
[2025] NZHC 1280
•22 May 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-000022
CRI-2025-412-000025 [2025] NZHC 1280
BETWEEN CRAIG PHILLIP DUELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 May 2025 Appearances:
S A Saunderson-Warner for Appellant J C Collins for the Respondent
Judgment:
22 May 2025
JUDGMENT OF OSBORNE J
Introduction
[1] Craig Phillip Duell (aged 55), pleaded guilty to charges of threatening to kill,1 unlawful possession of a pistol,2 unlawful possession of ammunition,3 possession of a utensil,4 receiving stolen goods (over $1000),5 resisting police,6 breaching community work,7 and three charges of driving while licence suspended (3rd or subsequent).8 On
27 March 2025, Mr Duell was sentenced to 24 months’ imprisonment by
1 Crimes Act 1961, s 306; maximum penalty seven years’ imprisonment.
2 Arms Act 1983, s 50(1)(a); maximum penalty three years’ imprisonment or $4000 fine.
3 Section 22B; maximum penalty $10,000 fine.
4 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year imprisonment or $500 fine.
5 Crimes Act, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
6 Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or $2000 fine.
7 Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment or $1000 fine.
8 Land Transport Act 1998, s 32(1)(c) and (4); maximum penalty two years’ imprisonment or $6000 fine.
DUELL v NEW ZEALAND POLICE [2025] NZHC 1280 [22 May 2025]
Judge Robinson.9 He now appeals that sentence on the ground it was manifestly excessive.
Facts
Receiving stolen goods: May 2022
[2] In April 2022, a rural Southland property in Morton Mains was burgled. In the same month another rural Southland property in Otatara was burgled. A significant amount of property was taken from each address, including money, a motor vehicle and a motorbike. On 13 May 2022, police arrested another individual (“S”) on these burglaries. In May 2022, police executed a search warrant at Mr Duell’s address as part of the burglary investigation. Property stolen in the burglary was located in Mr Duell’s possession, being a robotic lawnmower; battery drill kit; petrol container; drop saw; and a bin containing numerous power tools. Mr Duell claimed he had never met S and the property was brought to his address by another person.
Breach of community work
[3] On 9 July 2022, Mr Duell breached a condition of his existing sentence of community work by failing to report as instructed.
Resists police: August 2024
[4] In August 2024, police located Mr Duell and arrested him on two active warrants. Mr Duell started his vehicle and reversed away but was blocked by a police car. Police had to physically restrain him so handcuffs could be applied. He was bailed to appear on 17 September 2024.
Threat to kill, firearms and drug offending: September 2024
[5] Mr Duell is a disqualified dog owner but in September 2024 he had a large dog (which he owned) at his Palmerston address. On 11 September, three Waitaki District Council staff and two uniformed police officers arrived and called out to Mr Duell
9 Police v Duell [2025] NZDC 6776 [Sentencing remarks].
who appeared from a makeshift tent on his property.10 He became aggressive when he learned his dog was to be seized. He yelled abuse at the council staff and police, saying “when I get myself ready, I’m going to shoot you cunts”. Police calmed him. Council staff retreated to a safe area. When one of the council staff came back, Mr Duell said to him “I’ve got the ability to shoot you cunt”. Police saw Mr Duell leave in his vehicle, travelling south on State Highway 1 towards Dunedin, with his dog. He drove towards Blueskin Bay until a tyre deflation device was successfully deployed. Mr Duell stopped and was arrested.
[6] During a search warrant, police located at his address a pistol, being a sawn-off double-barrelled shotgun loaded with two cartridges (one of which was empty, the other full of pellets); four unused shotgun cartridges; one .22 bullet; and hundreds of used and unused needles and syringes commonly used for injecting drugs. The firearm was located approximately six metres from where Mr Duell made the oral threat.
[7] This September offending occurred while Mr Duell was on bail on his resisting police charge. He was also on sentence for driving while suspended and receiving stolen property.
Driving offending: April/May 2024
[8] On 10 October 2022 Mr Duell’s driver licence had been suspended on account of demerit points until 9 January 2023. He then incurred two convictions of driving while suspended on 25 December 2022 and 16 March 2023. Mr Duell was again by reason of demerit points suspended from driving a motor vehicle for three months from 25 March 2024. On 19 April 2024 Mr Duell was driving a car, towing a trailer. His speed was checked by a radar unit at 108 km/h when the speed limit for towing is 90 km/h. When stopped, Mr Duell admitted to being a currently suspended driver. The vehicle was not registered or warranted.
[9] On 26 April 2024 Mr Duell was the driver of a car and was recorded refuelling the vehicle in Dunedin. On 3 May 2024 he was again recorded as the driver, refuelling
10 There was a background to the visit by council officers, referred to in the Sentencing remarks (above n 9 at [9]). This was simply background to explain what led to the visit.
in Mosgiel. On 5 May 2024, Mr Duell was talked to by police at a Rolleston petrol station where he was with a dog the sole occupant of the vehicle. The vehicle was not registered or warranted. In explanation, Mr Duell denied driving and said he had been dropped there by a female driver.
District Court decision
Starting point
[10] The Judge considered first the threatening to kill and possession of pistol charges, from the September offending, as the lead offending. He accepted Ms Saunderson-Warner’s submission that the appropriate range for the threat to kill (on its own) was 15–17 months’ imprisonment. He disagreed with counsel on the uplift for the arms charges referring to the Court of Appeal’s decision in Campbell v R which noted offending involving possession of a single firearm with no mitigating circumstances would typically result in a starting point of two to three years’ imprisonment.11 The Judge concluded the range for Mr Duell’s pistol offence was 18-27 months.
[11] Taking the offending on 11 September as a whole, the Judge reached a starting point of two and a half years’ imprisonment, with regard to totality.
[12] The Judge uplifted the two and a half years by six months for the driving offending. Counsel infer, and I accept for the purpose of this appeal, the Judge appears to have taken 15–18 months for the threatening to kill and 12–15 months for the pistol charges. The resisting charge did not warrant a further uplift. The starting point was further adjusted by five per cent to reflect Mr Duell’s prior offending and that the September offending occurred while on bail and subject to sentence. This brought the adjusted starting point to three years and two months.
Personal mitigation
[13] A 23 per cent deduction was given for Mr Duell’s guilty plea. A further five per cent was given for steps taken towards rehabilitation, producing an end
11 Campbell v R [2022] NZCA 579, at [11], [17], [25].
sentence of 27 months’ before allowance for time spent (157 days) on electronically-monitored (EM) bail. The Judge allowed a three month deduction for the EM bail period, reducing the end sentence to 24 months’ imprisonment.
[14] Home detention was considered. The Judge found the combination of offences, particularly the firearm possession and the threat to kill, meant any sentence short of imprisonment would be insufficient to denounce and deter. The Judge considered other factors also weighed against home detention, including non-compliance with court orders (through driving while suspended); a minor breach of EM bail; and the circumstances giving rise to review of sentence. The Judge consequently declined to commute the sentence to home detention.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.13 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14
Submissions
Appellant’s submissions
[16] Ms Saunderson-Warner, for Mr Duell, submits the sentence imposed was manifestly excessive through an excessive starting point on the threat to kill and pistol charges. She further submits that, with the end sentence calculation appropriately adjusted, home detention should have been imposed.
12 Criminal Procedure Act 2011, ss 250(2) and 250(3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Ripia v R [2011] NZCA 101 at [15].
[17] Ms Saunderson-Warner submits the two and a half years starting point for the threat to kill and arms offending (on 11 September 2024) involved an excessive uplift for the firearms charge. She submits the Judge erred as quoting the observation of Duffy J in Taranaki v Police:15
Starting points for occasions when unlawful possession of firearms charges are the lead offences are not comparable to where those charges are to be dealt with by way of uplift.
[18] Ms Saunderson-Warner observed that not only was the approach of the Court of Appeal in Campbell v R a case of standalone firearms offending not directly applicable, but that case also involved a charge with a maximum penalty (under s 45 Arms Act 1975) of four years’ imprisonment. The two and a half year starting point (upheld by the Court of Appeal) was not in relation to that four year maximum.16 Here a maximum of three years’ imprisonment applied to Mr Duell’s firearm charges.
[19] In Ross v R, this Court reviewed a number of cases where firearms were found in circumstances associated with drug offending.17 Uplifts between 12–18 months have been considered appropriate for charges carrying a maximum penalty of four years’ imprisonment.18 In Ross the High Court viewed the District Court starting point of 20 months’ imprisonment as appearing to fall outside the accepted range and was “arguably excessive”.
[20] Ultimately, Ms Saunderson-Warner submits a starting point of no more than 21 months (as against the 30 months adopted by the Judge) should have been imposed for the September offending. She did not take issue with any of the other uplifts or deductions. Implicitly she accepted the six month adjustment to the starting point for the driving charges.
[21] Ms Saunderson-Warner submits the Judge erred in not imposing home detention. She says the analysis was not balanced and failed to take account of relevant matters, namely:
15 Taranaki v Police [2021] NZHC 2746 at [73].
16 Campbell v R, above n 11.
17 Ross v R [2024] NZHC 160.
18 At [25].
(a)Mr Duell’s rehabilitative prospects;
(b)probation’s assessment of home or community detention as appropriate sentences; and
(c)the need to impose the least restrictive sentence.
[22] Ms Saunderson-Warner submits Mr Duell is a suitable candidate for home detention, having self-referred to treatment for addiction, and consequently being a good prospect for rehabilitation with no entrenched history of violence or firearm offending. She submits the home detention sentence would sufficiently provide for the sentencing purposes of rehabilitation, denunciation, and deterrence.
[23] Ms Saunderson-Warner also took issue with the Judge’s reference to the “background narrated in the fines summary” as this summary was not made available to counsel, did not form part of the summary of facts, and was disputed by Mr Duell. I do not take this submission any further as the Judge’s “background” (as referred to in fn 10 above) was simply set out to provide background.
Respondent’s submissions
[24] Mr Collins, for the respondent submits previous decisions relating to the threat to kill charge are of assistance. Helpfully, he then referred to sentencing decisions where a starting point was adopted for threats to kill and firearms offending.19 I will come back to these shortly.
[25] Mr Collins notes each case must be decided on its own facts, but submits his cited decisions support the proposition that the Judge’s apparent starting point of 15– 18 months for the threats to kill offending was within range.
[26] Turning to the uplift for the possession of a pistol, Mr Collins submits 12–15 months was also within range. He outlines the aggravating features of that offending, namely that the weapon was cut down and loaded with one “full” cartridge, and was
19 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011; Boyland v Police [2015] NZHC 2463; and Gebbie v Police [2023] NZHC 1259.
found about six metres from where the threats offending occurred, sufficient for the court to determine it was “readily available”. Adopting the discussion in Campbell, Mr Collins submitted the pistol’s modification meant the “weapon has no legitimate use. It cannot be used for sporting or recreational pursuits. Its sole utility is as a tool for criminogenic purposes.”20 This weapon is classified as a “pistol” under the Arms Act only due to the modification of its barrel length.
[27] While the appellant was charged with an offence only carrying a three-year maximum penalty, Taranaki indicated possession of a similar weapon (a loaded sawn-off shotgun loaded with ammunition found in a car boot) can appropriately result in a twelve-month uplift on other offending.21
[28] Mr Collins submits this sentencing occurred against the backdrop of increasing public concern about firearms offending.22
[29] Turning to home detention, Mr Collins submits that despite time spent on EM bail, aspects of background materials suggest more general difficulties with Mr Duell’s compliance. He submits home detention was the appropriate sentence, referring to observations by the Court of Appeal in R v Richardson and by this Court in Taranaki v Police.23
Analysis
Starting point
[30] A combined starting point of thirty months encompassed both the charges of threat to kill and unlawful possession of a pistol. However, there was no clear demarcation about what portion of this thirty months ran to which offence.24 Both parties agree this appears to be on the basis of 15–18 months for the threatening to kill and 12–15 months for the unlawful possession of pistol.
20 Campbell v R, above n 11, at [23].
21 Taranaki v Police, above n 15, at [71].
22 McLaren v Police [2025] NZHC 518 at [18]–[29].
23 R v Richardson CA450/02, 25 March 2003 at [33]; and Taranaki v Police, above n 15, at [89].
24 Police v Duell, above n 9, at [38].
[31] There is no tariff for the charge of threatening to kill. However, the Court of Appeal in Faaleaga v R identified key factors in assessing the culpability of offending, which include:25
premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim.
[32] Applying these factors, I note Mr Duell’s offending was not highly premeditated. He responded to five persons coming to his property and, in upholding Council regulations, stating they would attempt to seize his dog. In his interview with the pre-sentence report writer, Mr Duell stated he said “if you shoot my dog then I’ll shoot you”. The threat to kill was repeated a second time. The victims were Council staff and police, meaning the threats were exacted against persons in public office. However, there is no link to earlier actual violence. While there was a firearm available to Mr Duell, he made no effort to present the firearm or access it during this altercation, meaning it would have taken Mr Duell some, but not great, time to recover the weapon.
[33] While I acknowledge that “[d]rawing comparisons between cases involving a combination of charges can be fraught and there is no tariff decision relating to a charge of threatening to kill where the circumstances will invariably differ”,26 I find the cases referred to me by Mr Collins to be of assistance.
[34] In Allan v Police, Mr Allan had an argument with his partner and retrieved a rifle from his ute which he pointed at the victim and made threats.27 The rifle had ammunition inside, but the chamber was empty. When police later executed a search warrant, they located 21 firearms and ammunition. A starting point of 12 months’ imprisonment was adopted for the threatening to kill charge alone. Having uplifted for previous convictions, use of a weapon, and the degree of premeditation, the District Court Judge adopted an overall starting point of 21 months for the threats and initial firearm offending and a six-month cumulative sentence for the later firearms
25 Faaleaga v R [2011] NZCA 495 at [11].
26 Gebbie v Police, above n 19, at [13].
27 Allan v Police, above n 19.
offending. On appeal, the High Court found “a starting point of 18 months to two years’ imprisonment might well have been considered appropriate” for the threat to kill.28
[35] In Boyland v Police, Mr Boyland had been in a dispute with his mother.29 He punched a wall and pointed a loaded shotgun at her face, stating “I going to shoot someone, or I could shoot you.” When police attended, police located further rounds of ammunition and knives alongside the firearm used in the offending. Other kinds of offending were also before the court (including thefts and cultivation of cannabis). A starting point of three years covered all matters, with a starting point of two years nine months being attributed to the threats to kill charge. On appeal, the High Court observed that:30
While it is not the most serious incident of threatening to kill…Mr Boyland had the gun with him, it was illegal and lethal, it was loaded, he pointed it directly into his mother’s face, and afterwards he took the weapon with him, still loaded, and drove with it until stopped by the police. A starting point of at least two years’ imprisonment was plainly within range.
[36] In Gebbie v Police, during an argument with a victim, Mr Gebbie abused the victim and threatened her life.31 He lunged at the victim but was restrained. He destroyed property and threatened to smash the victim’s vehicle with an axe. He then retrieved a slug gun, loaded it, and fired it in front the victim and an associate (but not at them), and attempted to fire the weapon several further times although it was no longer loaded. A starting point of 18 months was adopted for the offences of threats to kill, possession of an offensive weapon with an intent to commit an offence, and reckless discharge of a firearm. On appeal, this Court accepted the starting point and end sentence arrived at were arguably generous.
[37] Unlike Allan, Mr Duell did not retrieve his pistol to make the threat. He did not present a weapon. His threat was impulsive and responsive. He did not threaten a vulnerable partner. While Mr Duell’s threat was specific, threatened the use of a weapon that was located at the same address as the threat, and was made directly to
28 At [33].
29 Boyland v Police, above n 19.
30 At [11].
31 Gebbie v Police, above n 19.
the victims, I find the treat to kill charge significantly less serious than that in Allan. The extent to which the victim in Allan was terrified by the incident, and remained terrified for two weeks, is identified in the appeal judgment—Mr Allan was deliberately maximising the terror his victim felt.
[38] Similarly, Mr Duell’s offending is less serious than Boyland. He did not hold the weapon, let alone point it at a victim. After the confrontation, he did not take a weapon with him, loaded or otherwise.
[39] Given the High Court determined the sentence in Gebbie was arguably generous, the 18 months’ starting point adopted in the District Court must be considered with caution. Mr Duell’s offending was again less serious than in Gebbie and his threats were less specific. He did not pick up the weapon, let alone fire it in front of his victims.
[40] Finally, I refer to R v Sykes.32 Mr Sykes was convicted with threatening to kill and possession of a pistol—the same lead charges as faced by Mr Duell. While at a family tangi, Mr Sykes overheard a conversation between the victim, a cousin, and other family members and became agitated. He started yelling at the victim and obtained a pistol which he had placed on the top of the fridge at the house. He approached the victim pointing the pistol at her head and threatening to kill her. The firearm was loaded with the wrong ammunition. It was not able to be fired but would have been in working order if loaded with correctly sized ammunition. French J considered the two offences in isolation. She took as the lead offence the threatening to kill charge and adopted a starting point of 12 months. She then adjusted for aggravating features. She identified, as aggravating, the repeated nature of the threats, the immediate proximity between the offender and the victim and most importantly the use of the pistol. She regarded those aggravating features as warranting an uplift of at least six months taking the starting point to 18 months. She then allowed a significant reduction to reflect the totality principle having regard to the other offending and reduced the end sentence from 16 months to eight months’ imprisonment.
32 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
[41] Having regard to the cases cited, I find an initial starting point of 14 months on the threatening to kill charge would have been appropriate, and that the 15–18 months’ inferred starting point was outside the range. The aggravating features of Mr Duell’s offending included:
(a)the fact the threat was made to public officials;
(b)it was repeated; and
(c)the offender was close to the victims and had immediate access to the cut-down weapon which contained a full cartridge when the threat was made.
[42] An uplift to the starting point of eight months for those appropriate factors which by their nature encompass the pistol charge would have been appropriate taking account of totality. The inferred 12–15 month range was not. Therefore, the appropriate adjusted starting point was one of 22 months’ for the September 2024 offending.
[43] Given the firearm charge was unlawful possession of a firearm, not possession of firearms for an unlawful purpose (which has a higher maximum penalty),33 it was not appropriate for the Judge to accept, as an aggravating factor, that he could not perceive any lawful purpose for Mr Duell to have the firearm. Having pleaded guilty to a specific charge, Mr Duell’s culpability in relation to that charge should not have been viewed as greater by reason of an inferred unlawful intention.
[44] All other uplifts and deductions were appropriate. With an adjusted starting point of 22 months’ imprisonment, I then uplift a further six months for the driving charges and I uplift a further five per cent to reflect Mr Duell’s prior offending and that the September offending occurred while on bail and subject to sentence. This results in a global starting point of 29 months.
33 Arms Act, s 45; maximum penalty four years’ imprisonment or $5000.
[45] With credit for personal aggravating or mitigating factors amounting to 28 per cent, Mr Duell’s end sentence would initially be 21 months’ imprisonment. With a further reduction of three months for time spent on restrictive bail an end sentence of 18 months’ imprisonment is arrived at.
[46] As I consider that was the appropriate sentence, it follows the District Court’s sentence of 24 months’ imprisonment was excessive.
Home detention
[47] The Judge indicated he could not locate any decision suggesting conversion to an EM sentence would be appropriate on these facts. Counsel has not pointed me to any decisions where this has occurred. In Taranaki the Court observed “the case law reveals that unlicensed firearm offending generally results in sentences of imprisonment.”34
[48] The observations of the Court of Appeal in R v Richardson are also relevant, the Court observing:35
[33] Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.
[49] Mr Duell has spent 157 days on EM bail. The Judge referred to a breach of bail. The only breach counsel have identified was a technical breach on 19 November 2024, when Mr Duell had an approved absence to go shopping and sat in the car while the driver went to three other addresses. I accept this technical breach did not of itself justify the rejection of home detention.
[50] While driving while suspended is a ‘non-compliance’ offence, it is not evidence of a non-compliant attitude that goes directly to the assessment of the home detention sentence. It is more significant that Mr Duell has breached a community-based sentence only twice (in 2022 and 2013).
34 Taranaki v Police, above n 15, at [89].
35 R v Richardson, above n 23, at [33].
[51] In relation to the Judge’s reference to the ‘circumstances giving rise to the review of sentence’, Ms Saunderson-Warner refers to Mr Duell’s production of documentary evidence that he completed community service hours at an alternate placement due to work commitments, encouraged by a Judge. I accept in that circumstance, the technical failure should not have been taken into account against a sentence of home detention.
[52] The most recent pre-sentence report assesses Mr Duell as a low likelihood of reoffending and a moderate level of harm on the basis of the nature of the offending and his reduced rate of offending across time. Mr Duell has also expressed a willingness to change his habits and behaviours, including his consumption of drugs. He is assessed as motivated to comply with community-based sentences and the report recommends a sentence of community detention and supervision, which would enable him to continue in employment.
[53] All of these matters are such as to weigh in favour of a community-based sentence or at least to not cut across the appropriateness of such a sentence.
[54] That said, I am not satisfied the Judge erred in refusing to commute the sentence to one of home detention. His Honour correctly applied relevant sentencing principles. In particular, the considerations identified in Richardson36 and Taranaki37 justified the Judge’s approach in placing greater weight on the appropriateness of imprisonment as an expression of society’s condemnation for this particular type of offending, involving loaded firearms. Were the combination of a repeated threat and the presence of a loaded pistol in this case not to result in a sentence of imprisonment, the Court would not sufficiently be punishing those aspects of the offending which call for unequivocal denunciation.
Outcome
[55] I allow the appeal. The sentences of 24 months’ imprisonment on each of the charges of threatening to kill and unlawful possession of a pistol are quashed and
36 R v Richardson, above n 23, at [33].
37 Taranaki v Police, above n 15, at [89].
replaced with sentences of one year and six months’ imprisonment. All other sentences are unaffected.
Osborne J
Solicitors:
Crown Solicitor, Dunedin
Copy: S A Saunderson-Warner, Barrister, Dunedin
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