[1] On 16 July 2015, Mr Duxfield was sentenced to two years’ imprisonment and disqualified from driving for two years after pleading guilty to unlawfully taking a motor vehicle, theft and driving while disqualified.1 He has appealed an effective sentence of two years’ imprisonment.

[2] Mr Duxfield was late in filing his notice of appeal. He explained in his notice appeal that this was because of his initially sending the notice of appeal to Legal Aid. He then sent a further notice of appeal to his original lawyer rather than the Court and then experienced delays in his arranging for a lawyer in Dunedin to assist him. The Crown does not oppose the application for leave to file the appeal out of time. There is no suggestion of prejudice. I accordingly grant leave and deal
with the appeal on its merits.

1 Police v Duxfield [2015] NZDC 13965.

Approach on appeal

[3] This appeal can succeed and I can vary the sentence imposed only if I am satisfied there was, firstly, an error in the sentence imposed and, secondly, that a different sentence ought to be imposed.2 I should not change the sentence unless I am satisfied that it was manifestly excessive.

The facts

[4] On 30 March 2015, Mr Duxfield was driven by an associate to the Tournament carpark building in Marion Street, Wellington. Mr Duxfield used a tool to punch the lock on the driver’s door to gain access to a Suzuki Vitara motor vehicle parked in the building. He then took from that vehicle Olympus and Nikon cameras worth around $7,500.

[5] At about 12.00 pm on 3 April 2015, Mr Duxfield went to the carpark outside the Michael Fowler Centre in Wellington. He used a screwdriver to pry open the driver’s side window and opened the vehicle’s door locks. Once inside the vehicle, he used the screwdriver to remove the ignition barrel, started the vehicle and drove away in it. A short time later, after the vehicle had been reported stolen, Mr Duxfield was stopped by police in Wellington. At this time, he was disqualified from driving until 4 June 2015.

[6] While he had the Subaru, Mr Duxfield went to the Lombard carpark building on Bond Street, Wellington. There he used a tool to force the front left door-lock and gain access to a “Mini” campervan parked in that building. The vehicle had been rented by tourists from the United Kingdom. Mr Duxfield took from that vehicle three backpacks, a cooler bag, a Kindle e-reader and a quantity of alcohol. The backpacks contained the personal items of the victims, such as clothing, wallets, toiletries and travel documents, valued at approximately $500. The items taken were found by the…

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.

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Details

AGLC: Duxfield v Police [2015] NZHC 3018
Case: [2015] NZHC 3018
Decision Date: 1 December 2015

CaseChat Overview and Summary

In Duxfield v Police, the appellant, Michael James Cyril Duxfield, appealed against his sentence of two years’ imprisonment, imposed after he pleaded guilty to unlawfully taking a motor vehicle, theft, and driving while disqualified. The High Court granted leave for Duxfield to file his notice of appeal out of time and proceeded to determine whether there was an error in the sentence imposed. The court considered the appellant's extensive criminal history and the premeditated nature of the offending, including targeting vehicles in car parks and breaking into vehicles to steal property. The District Court Judge adopted a starting point of two years and six months’ imprisonment, taking into account the totality principle, and imposed a two-year period of disqualification. The appellant's lawyer submitted that the starting point was manifestly excessive and should have been lower, leading to a lesser sentence. However, the court found no error in the sentencing approach and concluded that the sentence was not manifestly excessive. The appeal was dismissed.

The final orders of the court were to dismiss the appeal and confirm the original sentence of two years’ imprisonment and two years’ disqualification from driving. The court acknowledged the appellant's acknowledgment of his criminal history and his stated intention to change his ways, which he would have the opportunity to demonstrate upon his release from prison.

Orders