Pengelly v Police - [2021] NZHC 2974

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…

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

Case: [2021] NZHC 2974
Decision Date: 5 November 2021

CaseChat Overview and Summary

Murray Pengelly and Colin Bradley were convicted in the District Court of possessing objectionable publications and methamphetamine. They were sentenced to 32 months and 25½ months’ imprisonment respectively. The Police appealed the sentences as manifestly inadequate and Mr Pengelly and Mr Bradley appealed their sentences as manifestly excessive. The High Court allowed the Police appeal against sentence and quashed the sentences imposed. On the Police appeal the Court found the starting point for the offending to be manifestly inadequate and set starting points of six to seven years’ imprisonment. The Court found that the personal mitigating factors applied to the appellants were excessive. The Court imposed sentences of four years’ imprisonment on Mr Pengelly and three years and five months’ imprisonment on Mr Bradley. The sentences are concurrent and the appellants are each convicted and discharged on the methamphetamine charge.

Orders