Duffell v The Queen - [2017] NZHC 1620

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2017-419-000040 [2017] NZHC 1620

BETWEEN
BRADLEY MICHAEL DUFFELL

Appellant

AND

THE CROWN Respondent

Hearing: 13 July 2017

Appearances:

S Cameron for the Appellant
R L Mann for the Respondent

Judgment:

13 July 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 13 July 2017 at 4.45 pm.
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
S Cameron, Barrister, Hamilton
R L Mann, Crown Solicitors, Hamilton

DUFFELL v THE CROWN [2017] NZHC 1620 [13 July 2017]

Introduction

[1] The appellant, Mr Duffell, pleaded guilty to five charges including indecent assault and drug offending. He was sentenced to two years and eight months’ imprisonment in the District Court. He now appeals against that sentence.

[2] I note that there is a statutory prohibition on publishing any identifying particulars of the victim in relation to the indecent assault.1 I also note that Mr Duffell received a first warning as required under the three-strikes regime on 20
March 2017.2

Background

Charges

[3] On 8 December 2016, Mr Duffell pleaded guilty to the following drug-related charges:

(a) offering to sell a Class C controlled drug, namely cannabis;3

(b)possession of a Class A drug, namely psilocybine (also known as magic mushrooms);4

(c) possession of a Class C drug for sale, namely cannabis;5 and

(d) possession of a Class C drug, namely cannabis seeds.6

1      Criminal Procedure Act 2011, s 203.
2      Sentencing Act 2002, s 86B.
3      Misuse of Drugs Act 1975, s 6(1)(e). This offence carries a maximum penalty of eight years’
imprisonment; see Misuse of Drugs Act, s 6(2)(c).
4      Misuse of Drugs Act, s 7(1)(a). This offence carries a maximum penalty of six months’
imprisonment or a fine not exceeding $1,000; see Misuse of Drugs Act, s 7(2)(a).
5      Misuse of Drugs Act, ss 6(1)(e) and 6(1)(f). This offence carries a maximum penalty of eight
years’ imprisonment; see Misuse of Drugs Act, s 6(2)(c).
6      Misuse of Drugs Act 1975, s s 7(1)(a). This offence carries a maximum penalty of three months’
imprisonment or a fine not exceeding $500; see Misuse of Drugs Act, s 7(2)(b).

[4] On 20 March 2017, Mr Duffell pleaded guilty to one charge of indecent assault,7 that charge having been laid as an alternative charge to the original charge of sexual violation by unlawful sexual connection on the morning of the trial.

Summary of facts

[5] I begin with the indecent assault. On 26 March 2016, the victim travelled from Auckland to visit her twin sister in Hamilton. Her sister is Mr Duffell’s partner, and resides at his address. That night, the victim and her sister went out to a number of nightclubs. They returned to Mr Duffell’s address shortly after midnight. Mr Duffell and his partner went to sleep on a large mattress in the living area, while the victim slept on a smaller mattress next to them. The victim wore a dress and underwear to bed.

[6] During…

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 Duffell v The Queen

Details

AGLC: Duffell v The Queen [2017] NZHC 1620
Case: [2017] NZHC 1620
Decision Date: 13 July 2017

CaseChat Overview and Summary

Bradley Duffell pleaded guilty to multiple charges including indecent assault and drug offences and was sentenced to two years and eight months’ imprisonment. He appealed that sentence on the grounds that the District Court judge had made insufficient discounts for his guilty plea, erred in his approach to the totality principle, and had imposed ambiguous sentences for the drug charges. The Crown submitted that the sentence was within the permissible range and that the appeal should be dismissed. The High Court found that the District Court judge had erred in his approach to the totality principle but that the end sentence was not manifestly excessive and dismissed the appeal. The Court noted that if operational requirements allowed it, it would be appropriate for Duffell to remain at the facility closest to his terminally ill father.

Orders