IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-348
[2021] NZHC 2974
BETWEEN MURRAY RICHARD PENGELLY
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2021-404-347 BETWEEN
COLIN KENNETH BRADLEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2021-404-374 BETWEEN
NEW ZEALAND POLICE
Appellant
AND
MURRAY RICHARD PENGELLY and COLIN KENNETH BRADLEY
Respondents
Hearing: 1 November 2021 Appearances:
D M M Dickinson for Mr Pengelly A C Cresswell for Mr Bradley
J J Rhodes and F C J Faull for New Zealand Police
Judgment:
5 November 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 5 November 2021 at 11.00 am.
Registrar/Deputy Registrar
Date……………
Solicitors/Counsel: Mr D Dickinson, Barrister, Auckland
A Cresswell, Barrister, Auckland
Kayes Fletcher Walker Ltd, Manukau City
PENGELLY & BRADLEY v NZ POLICE & NZ POLICE v PENGELLY & BRADLEY [2021] NZHC 2974 [5
November 2021]
Introduction
[1] Murray Pengelly and Colin Bradley pleaded guilty to six representative charges of knowingly possessing objectionable publications and one charge each of possessing methamphetamine. Judge T V Clark sentenced Mr Pengelly to imprisonment for 32 months and Mr Bradley to imprisonment for 25½ months.1
[2] Mr Pengelly and Mr Bradley appealed against their sentences as being manifestly excessive. The Police cross-appealed against the sentences on the basis they were manifestly inadequate.
[3] Mr Pengelly no longer pursues his appeal against sentence but maintains his opposition to the Crown appeal. Mr Bradley opposes the Police appeal and maintains his appeal against sentence.
The offending
[4] Mr Pengelly and Mr Bradley live together at an address in a rural town near Auckland. On 23 December 2019 the Police executed a search warrant at their address. The Police seized 11 electronic devices from the address. The devices were subsequently examined by the Police Electronic Crime Lab. The examination located images and videos on three devices that met the definition of objectionable as described under s 3, Films, Videos, and Publications Classification Act 1993.
[5] The offending images and videos were found on a black Acer laptop, a black Verbatim hard drive, and a white Apple iPhone. There were 94 videos on the laptop, seven images and 906 videos on the hard drive and one image on the iPhone. The examination of the black Acer laptop disclosed that 153 videos had been viewed from the black Verbatim hard drive between 4 December and 21 December 2019. It also disclosed that further hard drives not located in the search warrant had been used to view videos that were titled with suggestive child exploitation material during the month of December 2019.
1 R v M R Pengelly & C K Bradley [2021] NZDC 13939.
[6] In the course of executing the search warrant the Police also located four point bags and a plastic straw in the offenders’ bedroom. One of the point bags contained
0.5 g of methamphetamine.
Sentencing process
[7] The appellants were first before the Court on the charges on 27 May 2020. They were…
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