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 a lack of remorse on Ms Keen’s behalf.

[10]   The Judge noted that submissions had been made in respect of the Ms Keen’s personal circumstances, including the medical condition of her son.

[11]   A starting point of three years, three months’ imprisonment was arrived at on a global basis, taking into account the totality of Ms Keen’s offending.

[12]   The Judge acknowledged Ms Keen has no prior convictions, but also noted he saw no remorse for her offending. Taking into account the period of time over which the offending took place, the Judge did not give a discount for Ms Keen’s lack of previous convictions.  The Judge did give a discount of 10 months (approximately  25 per cent) for Ms Keen’s guilty plea.

[13]This resulted in an end sentence of two years, five months’ imprisonment.

[14]The Judge also ordered reparation in the sum of $20,000, to be paid at

$20 per week commencing once Ms Keen is released on parole.

Approach to appeal

[15]   This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that: for any reason, there is an error in the sentence imposed on conviction; and a different sentence should be imposed.

[16]   A sentence appeal is an appeal against a discretion. The sentence must be either manifestly excessive or inappropriate, if the appellate court is to interfere with the discretion.4

[17]   The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5 As articulated in R v Peters:6

As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed, rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.

Submissions

Appellant’s submissions

[18]   Mr Glover, for Ms Keen, submitted that the end sentence is manifestly excessive.

[19]   Mr Glover submitted fresh evidence relating to Ms Keen’s son provides a greater level of detail than what may have been available to the Judge.

4      Affleck v Police [2017] NZHC 3220 at [9].

5      Ripia v R [2011] NZCA 101 at [15].

6      R v Peters CA12/03, 14 May 2003 at [13].

[20]   Finally, Mr Glover submitted credit should be given to reduce the sentence to a level at which an electronically monitored sentence of home detention would be appropriate.

Respondent’s submissions

[21]   Mr Harvey, for the respondent, submitted that the end sentence is not manifestly excessive and that it reflects the serious nature of the offending, particularly given Ms Keen’s complete lack of remorse.

[22]   Secondly, while the fresh evidence does provide a greater level of detail than that which may have been available to the Judge, Mr Harvey said the Judge was aware of Ms Keen’s situation with her son and that no further credit is warranted.

[23]   Thirdly, Mr Harvey submitted that in any event, any credit would not reduce the sentence to the level at which an electronic sentence would be appropriate.

Was the sentence manifestly excessive?

[24]   Mr Glover did not provide any authorities in respect of this aspect of the appeal, but rather relied on the fresh evidence as to Ms Keen’s son’s medical circumstances. I first consider whether the starting point was manifestly excessive, before considering Ms Keen’s personal circumstances.

[25]   The starting point of three years, three months’ imprisonment was not excessive. The Judge had the benefit of detailed submissions from both the Crown and defence, and in particular the Judge referenced the cases of R v Varjan,7 and Brooks v R.8

[26]In R v Varjan, in relation to dishonesty offences, the Court of Appeal held:9

[22]  Culpability is to be assessed by reference to the circumstances and  such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the

7      R v Varjan CA97/03, 26 June 2003.

8      Brooks v R [2017] NZHC 851.

9      R v Varjan, above n 7.

offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[27]   In Brooks v R the appellant faced two charges of dishonestly using a document and one charge of theft by a person in a special relationship. The appellant, a man in his early sixties, had met and befriended the victim, another man of a similar age, when they were both living in a motor camp in South Otago. The victim was unwell at the time and needed help buying his everyday provisions. The appellant offered to help and the victim gave him his bank card and PIN number. Over a period of two months, the appellant made 76 unauthorised withdrawals on the card totalling $34,503. The victim had also asked the appellant to sell a caravan he owned on his behalf, in return for a commission. The appellant sold the caravan for $5,800, and retained the sale proceeds without telling the victim. By the time the offending was discovered, the appellant had moved elsewhere.

[28]   In the District Court, the Judge noted the serious impact of the offending on the victim: the victim felt betrayed by someone he had trusted; the victim was ill and vulnerable, and the appellant had been aware of this; the money had been the victim’s entire retirement savings, and he was subsequently left living on a pension from week to week. The Judge considered the breach of trust was at the highest end of the scale, and the offending was very serious.

[29]   On appeal, the High Court upheld the global starting point adopted by the Judge in the District Court of three years and three months’ imprisonment, noting it was high but not wholly out of proportion with the gravity of the overall offending.

[30]   The starting point is consistent with other sentencings, and is not manifestly excessive, having regard to: the nature of the offending; its magnitude and sophistication; the vulnerability of the victim; the amounts involved; and the period over which the offending occurred.

Did the Judge place insufficient weight on the medical information and references concerning Ms Keen’s son’s medical condition?

The fresh evidence

[31]   Mr Glover submitted that the Judge only made a “cursory” reference to this factor. The references that Mr Glover referred to all post-date the sentencing. This fully explains why only a “cursory reference” to this factor was possible. The documents should be considered fresh evidence, rather than approached as a matter of insufficient weight having been given to this factor by the Judge.

[32]As identified in Mark v R:10

The principles of assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether it could not have been presented to the sentencing court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded then it should be admitted notwithstanding that it is not fresh.

[33]   Mr Harvey accepted that the most relevant document (the Canterbury District Health Board report of 31 July 2020) is credible. There is no information available as to why something of this nature was not provided at sentencing. I am prepared to accept that it is fresh, and admit it for the purposes of the appeal.

Analysis

[34]   Mr Glover pointed to Theodore v Police, where Ellis J explored discounts available for personal circumstances, specifically the impact of incarceration on a defendant’s dependent children.11 There, the District Court imposed a final sentence of 25 months, two weeks’ imprisonment following the appellant’s pleas of guilty to one charge of burglary and one charge of common assault. After canvassing the

10     Mark v R [2019] NZCA 121, citing Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

11     Theodore v Police [2018] NZHC 2364.

international position,12 and the discounts given by New Zealand courts in similar situations (ranging from 15-20 percent),13 Ellis J gave a discount of 16 percent and indicated home detention would be appropriate (if a suitable address was found).

[35]   In Anderson v R, Lang J considered an appeal where the appellant sought for a two year term of imprisonment to be converted to home detention, partly due to the impact of her incarceration on her children.14 The District Court imposed a sentence of two years’ imprisonment, for assaulting a child and assault with a weapon. After serious consideration, the District Court Judge declined to convert the sentence to home detention, noting the need to deter and denounce the type of offending, and hold the appellant accountable. The High Court did not interfere with the decision, finding the hardship caused to the appellant’s family was the normal consequence of imprisonment.15

[36]   Mr Glover did not submit that any particular discount would be appropriate in light of the medical information concerning Ms Keen’s son, he simply submitted that a sentence of home detention should be imposed. I prefer to adopt the approach of Dunningham J in Police v McWhirter:16

I also observe that the Court should be mindful not to engage in artificial manipulation of the sentencing exercise to reach a desired outcome. Any discount by way of mitigation should be principled. It is therefore not appropriate to refer to the value which a sentence less than imprisonment … might have, and use that value to reason back to a discount sufficient to bring the sentence within the threshold two years’ short term of imprisonment.

[37]   While the fresh evidence provides a greater level of detail than what may have been available to the Judge, he was aware of Ms Keen’s situation with her son and no further credit is warranted. Further, in any event, even if some credit were warranted, it would not reduce the sentence to the level at which a sentence of home detention would be appropriate.

12     At [35]-[38].

13 At [39].

14     Anderson v R [2016] NZHC 2386.

15     At [18]-[19].

16     New Zealand Police v McWhirter [2016] NZHC 2865.

[38]   While Ms Keen’s son clearly has particular challenges, the overall impact of her receiving a sentence of imprisonment is not unique; rather, it is an unfortunate consequence of her offending, and one which the Judge would have been all too aware of. I also note that the current care arrangements for Ms Keen’s son appear to be safe and suitable.

[39]   While I acknowledge the approach of Ellis J in Theodore, given the scale of the offending in the present case, the length of time over which it occurred, the impact on the vulnerable victim, and the distinct lack of remorse shown by Ms Keen, a discount for personal circumstances is not appropriate.

Result

[40]The appeal is dismissed.

Doogue J