Keen v R
[2014] NZCA 299
•3 July 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA787/2013 [2014] NZCA 299 |
| BETWEEN | HINEMOA MARGARET KEEN |
| AND | THE QUEEN |
| Hearing: | 12 June 2014 |
Court: | French, Venning and Mallon JJ |
Counsel: | R G Glover for Appellant |
Judgment: | 3 July 2014 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Ms Keen pleaded guilty in the District Court to:
(a)one charge of arson;
(b)three charges of burglary;
(c)three charges of attempted burglary;
(d)two charges of theft; and
(e)one charge of escaping custody.
She was sentenced by Judge Garland to a term of imprisonment of three years and two months.[1]
[1]R v Keen DC Christchurch CRI-2009-009-11893, 6 November 2013.
She now appeals the sentence on the grounds that it was manifestly excessive.
Factual background
In the early hours of 5 August 2012, Ms Keen went to a motel in Christchurch. She walked from unit to unit, trying doors in an attempt to gain access. She found one door that was unlocked and entered, waking the occupant. She then rifled through the occupant’s clothing and removed his wallet.
A few weeks later, on 2 September, she returned to the same motel just after midnight and again walked from unit to unit looking for one that was unlocked. She entered one unit and sat on the occupant’s bed, asking if he was “Nate”. The occupant asked her to leave but as she left she took his wallet. Ms Keen then entered another unit and stole a laptop valued at $1,600.
Ms Keen returned to the motel for a third time the following month. She again attempted to access several units but was unsuccessful.
Instead, she entered a campervan and removed a box of beer before setting the campervan on fire as a result of lighting a cigarette lighter. She fled the scene, leaving the campervan, valued at $27,000, in flames. It was damaged beyond repair. The contents of the campervan, worth $2,000, were destroyed. A car parked next to the campervan was also heat damaged.
Ms Keen was arrested and charged with attempted burglary in relation to the unsuccessful attempts to gain access to the units, burglary in relation to the units she did enter, one charge of theft relating to the stolen beer and one charge of arson for recklessly setting fire to the campervan.
She pleaded guilty to all charges and was remanded on bail pending sentence.
While on bail, Ms Keen was given permission to travel to Invercargill for a funeral. During the trip, she entered a service station and stole $160 from the cash register.
Having been arrested for theft, Ms Keen was en route to the Invercargill Police Station when she complained of being unwell. The police took her to the hospital, where she took the opportunity to abscond. She was later apprehended and charged with escaping from police custody.
Ms Keen subsequently pleaded guilty to the additional theft charge and escaping from policy custody.
Sentencing in the District Court
The Judge dealt first with the indictable offences.
On the arson charge, he identified the aggravating factors as being the extent of the loss and damage caused ($34,598), the inherent danger to the public and the fact that it was offending during the course of committing another crime. Having regard to those factors, the Judge considered a starting point of up to two years was available but bearing in mind totality said he was adopting a starting point of 12 months’ imprisonment.
As regards the charges of burglary, attempted burglary and theft, the Judge identified five aggravating features:
(a)the degree of premeditation;
(b)the nature of the premises entered, being akin to residential property;
(c)the value of the property stolen and not recovered;
(d)the number of burglaries and attempted burglaries; and
(e)the fact the offending occurred at night time.
In light of those aggravating features, the Judge considered that a starting point of two and a half years’ imprisonment would ordinarily be appropriate but reduced this to two years on account of the totality principle.
On the summary charges (the additional theft count and escaping custody) the Judge adopted a starting point of three months’ imprisonment.
This brought the overall starting point to three years and three months’ imprisonment.
The Judge then imposed an uplift of nine months on account of Ms Keen’s history of dishonesty and offending while on bail, before applying a 10 month reduction for the guilty pleas.
The end sentence was three years, two months’ imprisonment.[2]
Grounds of appeal
[2]That sentence was imposed as follows: three years and two months’ imprisonment on each charge of burglary; six months on each charge of attempted burglary; 12 months on the arson charge; two months on each theft charge; and three months on the charge of escaping custody. All terms were imposed concurrently.
Counsel Mr Glover submitted that the following errors on the part of the sentencing Judge resulted in starting points and an end sentence that were manifestly excessive:
·The Judge was wrong to regard the offending as premeditated and also wrong to regard the motel premises as akin to residential property.
·The Judge erred in taking into account the damage done to the car parked by the campervan.
·An uplift of nine months for past convictions was excessive.
·Insufficient account was taken of Ms Keen’s personal circumstances, in particular her health problems and the letters of support.
·A greater discount should have been given for the guilty pleas.
No issue is taken with the discount for totality.
Discussion
Did the offending have an element of premeditation?
Mr Glover submitted that the offending was opportunistic, rather than premeditated. It was the result of binge drinking, which had led Ms Keen to wander around the motel in an aimless, disinhibited, drunken fashion.
We do not accept that submission. While there is no doubt this offending was fuelled by alcohol, Ms Keen targeted the same motels on separate occasions and used the same modus operandi – late at night looking for unsecured doors. The offending was far from impulsive or spontaneous. We agree with the Judge that in the circumstances there was an element of premeditation which he was entitled to take into account as an aggravating feature.
In the course of oral argument, Mr Glover further suggested that the arson was entirely accidental. However, as he also acknowledged, Ms Keen pleaded guilty to being reckless and the Judge was obliged to sentence her on that basis.
We also consider that despite the presence of a public bar at the motel complex, the Judge was entitled to regard the premises as akin to residential property. Motel guests were asleep in the units and there was a heightened risk of confrontation, just as there is in a domestic dwelling. We note too that according to what we were told from the Bar, some of the units have long-term occupants.
Damage to neighbouring vehicle
Mr Glover explained that Ms Keen was originally charged with a second count of arson in relation to the car parked next to the campervan. However, that charge was withdrawn.
In those circumstances, Mr Glover said it was unfair of the Judge to take it into account.
We disagree. While it may not have been the subject of a separate charge, it was nevertheless loss, damage or harm resulting from the offending which the Judge was required to take into account under s 9(1)(d) of the Sentencing Act 2002. Far from being too remote a consequence, as also submitted by Mr Glover, we consider there was a very close causal connection between it and the arson of the campervan, which was parked alongside.
In our view, the Judge made no error in his identification of the relevant aggravating factors. As Mr Marshall submitted, the starting points reached were orthodox and within range.
Uplift for previous convictions
Mr Glover submitted that nine months for previous convictions was excessive and amounted to re-punishing Ms Keen for past offences.
Ms Keen, who is 39 years of age, does however have a very significant criminal record. She has 174 convictions for dishonesty-related offending. These include 10 convictions for burglary, three for attempted burglary, 95 for dishonestly using a document to obtain a pecuniary advantage and 32 for theft. Since 1995, she has been sentenced to 11 terms of imprisonment.
In our view, having regard to the extensive nature of this record and the fact that the Invercargill offending was committed while on bail pending sentence, an uplift of nine months was open to the Judge. Ms Keen’s record discloses a propensity for dishonesty offending and therefore a particular need for individual deterrence.
For completeness, we record that we have considered whether there was an element of double counting, as can occur where a starting point is adopted on the basis of a defendant being a recidivist burglar followed by an uplift for previous convictions. However, we are satisfied that there was no element of double counting here.[3]
Personal circumstances
[3]Arahanga v R [2012] NZCA 480.
Mr Glover told us that in July 2013, while the District Court proceedings were still in train, Ms Keen was hospitalised. Her symptoms included dizziness and fainting spells, which led to suspicion she might have suffered a stroke. Her health issues prompted the Crown to advise the Court when the guilty pleas were entered in August that it would not be seeking imprisonment.
In Mr Glover’s submission, the Judge was wrong to ignore the Crown’s position and wrong not to take Ms Keen’s health issues into account.
The Judge was not, of course, obliged to adopt the Crown position. Further, it appears that by the time of the sentencing, the Crown had modified its stance, largely it seems as a result of the pre-sentence report. The report stated that Ms Keen took very little responsibility for her offending, continuously minimised her actions and showed little remorse. The report concluded that she was at high risk of reoffending.
It also appears that the Judge was not provided with any updated medical evidence about Ms Keen’s state of health as at the time of the sentencing. The only medical evidence provided to the Judge and indeed to us was the hospital admission records from July 2013. More was required if Ms Keen wanted the Judge to take health issues into account.
A further complaint made by Mr Glover is that the Judge failed to take into account or give sufficient weight to a large number of letters written in support of Ms Keen. These had been provided to the Judge at sentencing to counter the negative and (in Mr Glover’s submission) unbalanced pre-sentence report.
The letters spoke highly of Ms Keen, particularly of her work at a kōhanga reo, and showed that she had made progress since her previous incarceration. The letters would also have made the Judge aware that imprisonment would inevitably mean the loss of her job and her Housing Corporation home. One of the letters was from Ms Keen’s aunt. Mr Glover described that letter as the most significant because it provided information about Ms Keen’s life history and offered an explanation for her recidivism.
The Judge was, however, cognisant of the letters. He said he had read them all but that it was hard to reconcile the glowing character references with a person who had such a long history of criminal offending and causing harm to others. That was an approach he was entitled to take. Many of the letters described the offending as “out of character” and asked that Ms Keen be given a chance, which in light of her record and the numerous chances previously afforded her was plainly unrealistic. We accept that the Judge did not expressly refer to the aunt’s letter. However, it is not an omission that in our view is capable of rendering the sentence manifestly excessive.
We note too that according to the pre-sentence report, in the last year of Ms Keen’s employment at the childcare centre, there had been a history of absenteeism.
Discount for the guilty pleas
The 10 month reduction allowed for the guilty pleas amounts to a 20.8 per cent discount.
Mr Glover submits that in accordance with the Supreme Court decision in Hessell v R, the Judge should have given the full discount of 25 per cent.[4]
[4]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
We do not accept that submission and consider that if anything the discount was generous. Pleas to the majority of charges were only indicated in the week prior to trial, although we accept there were amendments to the indictment. But the Crown case was strong. Security camera footage from the motel showed Ms Keen on each of the nights in question and she made admissions to the police.
Outcome
In our view, none of the matters raised by Mr Glover warrant appellate intervention.
We have been unable to discern any error in the Judge’s reasoning and the end sentence was within range.
The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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