Keen v Police - [2020] NZHC 2337

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000103

[2020] NZHC 2337

BETWEEN
TIFFANY JANE KEEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 September 2020

Counsel:

R Glover for the Appellant

A Harvey for the Respondent

Judgment:

8 September 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 8 September 2020 at 4.00 pm.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Solicitor, Christchurch

KEEN v NEW ZEALAND POLICE [2020] NZHC 2337 [8 September 2020]

Introduction

[1] The appellant, Tiffany Jane Keen, was sentenced by Judge O’Driscoll in the District Court at Christchurch on 1 July 2020, having pleaded guilty to:1 a representative charge of theft by a person in a special relationship;2 and three charges of dishonestly using a document.3

[2] The Judge sentenced Ms Keen to a total of two years, five months’ imprisonment.

[3] Ms Keen appeals this sentence primarily on the basis that insufficient weight was given to the medical condition of her seven-year-old son.

Background facts

[4] Ms Keen is the stepdaughter of the victim. After her mother died, she lived with the victim, and he gave her access to his bank account to pay house-related bills on his behalf. Between January 2015 and April 2019, in 828 unauthorised transactions, Ms Keen transferred over $137,000 from the victim’s bank account into bank accounts in her name. The amounts ranged from $1 to $10,000.

[5] At the time of the offending, Ms Keen worked as a loans manager. She applied for a loan on three occasions in the name of the victim, without his knowledge or permission. Two loans (totalling $3,300) were paid into an account belonging to Ms Keen, and one loan (for $400) was paid into the victim’s account.

[6] When spoken to by police, Ms Keen admitted transferring the money into her accounts. She said that she had the victim’s permission, and it was for their living expenses. She admitted making the loan agreements, and stated that they were made at the victim’s request.

1      Police v Keen [2020] NZDC 12518.
2      Crimes Act 1961, ss 220 and 223(a): maximum penalty seven years’ imprisonment.
3      Section 228(1)(b): maximum penalty seven years’ imprisonment.

[7] In his impact statement, the victim recorded that he put Ms Keen in a position of trust. He stated the money was saved for his retirement (he is 63 years old), he is unable to work due to his health, and is very worried about his future..

District Court decision

[8]The Judge identified the following aggravating factors:

(a)the nature and magnitude of the offending, as illustrated by the length of time over which it had occurred and the number of withdrawals which were made;

(b)the vulnerability of the victim; and

(c)the offending was calculated and premeditated, with Ms Keen using the funds to fund her own lifestyle, thereby depriving the victim of his savings.

[9] The Judge noted the pre-sentence report which, inter alia, observed that there was…

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 Keen v Police

Details

AGLC: Keen v Police [2020] NZHC 2337
Case: [2020] NZHC 2337
Decision Date: 8 September 2020

CaseChat Overview and Summary

The appellant, Tiffany Jane Keen, was sentenced in the Christchurch District Court to two years and five months' imprisonment for theft by a person in a special relationship and dishonestly using a document. She appeals against the sentence, primarily arguing that insufficient weight was given to the medical condition of her son. The High Court was required to determine whether the sentence was manifestly excessive or inappropriate, given the new evidence presented by the appellant. This required consideration of the starting point for the sentence, the nature of the offending, and the personal circumstances of the appellant, particularly the impact of her incarceration on her son.

The court found that the starting point for the sentence was not excessive, given the circumstances and gravity of the offending. The court noted that the appellant's theft from her stepfather over a period of four years amounted to over $137,000, and that the appellant had shown no remorse. The court compared the starting point to similar cases and found it to be within the acceptable range. The court also considered the fresh evidence regarding the appellant's son's medical condition, but found that it did not warrant a discount sufficient to reduce the sentence to a level at which home detention would be appropriate. The court acknowledged the challenges faced by the appellant's son but concluded that the impact of the appellant's imprisonment was not unique and was a normal consequence of the appellant's offending.

The appeal was dismissed, and the original sentence was upheld. The court emphasised that the seriousness of the offending, the vulnerability of the victim, and the lack of remorse shown by the appellant warranted a significant sentence, and that any discount for personal circumstances would not be appropriate in this case. The court concluded that the sentence imposed by the District Court was not manifestly excessive or inappropriate.

Orders