Keeley v The Queen - [2019] NZCA 269

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA747/2018
[2019] NZCA 269

BETWEEN	DANIAL JOHN KEELEY Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2019
Court:	Brown, Whata and Moore JJ
Counsel:	M J James for Appellant A J Ewing for Respondent
Judgment:	1 July 2019 at 3.00 pm

JUDGMENT OF THE COURT

A An extension of time for leave to appeal is granted.

B The appeal against sentence is allowed.

CThe sentence of six years and two months’ imprisonment is quashed and a sentence of five years and nine months’ imprisonment is substituted.
DThe 50 per cent minimum period of imprisonment for the drug offending, firearms offending and driving and possession charges (two years and six months’ imprisonment) remains.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

In respect of events in September–October 2017 Mr Keeley pleaded guilty to:
(a)offering to supply methamphetamine, possession of methamphetamine for supply, possession of equipment with intent to manufacture methamphetamine and other drugs charges (the drug offending);
(b)unlawful possession of a pistol and unlawful possession of ammunition (the firearms offending); and
(c)reckless driving, failing to stop and possession of an offensive weapon namely a hunting knife (the driving and possession charges).
In respect of earlier offending in May 2017 Mr Keeley also pleaded guilty to:
(a)assault with intent to injure; and
(b)threatening to kill;
(together, the violence charges).
He was sentenced on all charges in the District Court at Hamilton on 20 August 2018.[1] In respect of the lead offence, the methamphetamine charges, the Judge adopted a starting point of three years and nine months’ imprisonment, applied an uplift of 18 months in relation to the firearms and other drug offending, an uplift of nine months for the driving and possession charges and an uplift of 12 months for Mr Keeley’s prior convictions.[2] A 25 per cent discount for guilty pleas resulted in a sentence of five years and three months which was reduced to five years’ imprisonment on account of both totality and it being cumulative on Mr Keeley’s then current sentence.[3] A minimum period of imprisonment of 50 per cent, being two years and six months’ imprisonment, was imposed.
[1]R v Keeley [2018] NZDC 17308.
[2]At [22]–[23].
[3]At [24].
With reference to the related offending in May 2017 a starting point of 18 months’ imprisonment with a discount of four months for the guilty pleas produced a sentence of 14 months’ imprisonment. This was imposed cumulatively on the sentence of five years’ imprisonment.
On appeal Mr Keeley contends:
·     an appropriate starting point for the methamphetamine offending was no more than three years’ imprisonment;
·     the appropriate starting point for the violence charges was 12 months’ imprisonment; and
·     the discount for totality of three months’ imprisonment was inadequate.
Mr Keeley filed his notice of appeal two weeks out of time. We are satisfied it is appropriate to grant an extension of time to appeal and do so accordingly.

Starting point for…

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 Keeley v The Queen

Details

AGLC: Keeley v The Queen [2019] NZCA 269
Case: [2019] NZCA 269
Decision Date: 1 July 2019 at 3.00 pm

CaseChat Overview and Summary

In the case of Danial John Keeley v The Queen, the Court of Appeal of New Zealand considered an appeal against the sentence imposed on Mr Keeley, who had pleaded guilty to various charges including drug supply, unlawful possession of firearms and ammunition, reckless driving, and possession of an offensive weapon, among others. The key legal issues addressed by the Court involved the starting points for sentencing the methamphetamine and violence charges, and the adequacy of the discount for totality in sentencing. The Court found that the starting point for the methamphetamine charges was appropriately set at three years and nine months, and that the starting point for the violence charges, considering the context of the threats to kill, was also appropriately set at 18 months. However, the Court held that the discount for totality was inadequate, and accordingly, reduced the total sentence to five years and nine months imprisonment. This decision resulted in the substitution of the original sentence with a new sentence, while maintaining the 50 per cent minimum period of imprisonment for the drug, firearms, and driving and possession charges.

The Court of Appeal allowed the appeal against sentence, quashed the original sentence of six years and two months' imprisonment, and substituted a sentence of five years and nine months' imprisonment. The Court also maintained the 50 per cent minimum period of imprisonment for the drug, firearms, and driving and possession charges, which amounted to two years and six months' imprisonment. The Court granted an extension of time for leave to appeal and made the aforementioned changes to the sentence imposed by the District Court.

Orders