Keen v The Queen

[2017] NZHC 2002

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000067

CRI-2017-409-000068 [2017] NZHC 2002

BETWEEN

HINEMOA KEEN

Appellant

AND

REGINA Respondent

Hearing:	17 August 2017
Appearances:	R G Glover for the Appellant C J Bernhardt for the Respondent
Judgment:	22 August 2017

JUDGMENT OF NATION J

[1]      Hinemoa  Keen  appeals  against  an  effective  sentence  of  three  years’ imprisonment on two charges of burglary, two charges of theft and four charges of using a document.  The burglaries involved the entering of a retirement unit and theft of a cheque book, jewellery and items of considerable sentimental value from an 80 year  old’s  unit  on  3  November  2015,  burglary  of  electronic  equipment  on  29

December  2015,  the  unlawful  and  surreptitious  entry into  a  home  at  a  country address on 22 January 2016 and the theft of a wallet containing a visa card.  There was a theft in similar circumstances from motel accommodation on 14 February. The three using a document charges related to the dishonest use of stolen credit cards on 9 November 2015 and 30 January 2016.

[2]      Judge Saunders sentenced Ms Keen on the conventional basis.  He arrived at a starting point for the offending of three years and two months, applied an uplift of

four months for her “shocking history” of similar offending before giving her a

KEEN v R [2017] NZHC 2002 [22 August 2017]

credit of 20 per cent for her guilty pleas which he said brought the sentence back to

36 months, or three years’ imprisonment.

[3]      The Crown acknowledged that there appears to have been a mistake in the arithmetic and, with a 20 per cent credit for guilty pleas, the end sentence should have been in the region of 33.6 months, that is two years and eight months’ imprisonment.   The Crown also accepted that there was an apparent mistake or inconsistency between the way the Judge had referred to certain sentences being concurrent but applied them in relation to the end sentence in a way which was cumulative.

[4]      Mr Glover, for Ms Keen, agreed with the Crown’s analysis of the sentence but accepted for Ms Keen that the end sentence was not manifestly excessive.  He did not seek to challenge the appropriateness of the sentence either by way of the mistakes that might have been made in the way it was framed or the starting points adopted. What he sought was a judgment on the appeal which would allow Ms Keen and, indirectly, the public to benefit from the significant progress that had been made with Ms Keen through a psychiatrist who has been working with her while she has been in prison.

[5]      Ms Keen had appeared before Judge Farish for a sentencing indication on 21

October 2016.  The Judge had indicated a sentence of four years would be available for the offending which included the charges on which she was sentenced by Judge Saunders but on some additional charges as well.  That indication allowed for a 25 per cent discount for guilty pleas on all charges.   In the course of her indication, Judge Farish said she would have liked to see a psychological report that the Judge assumed would have been prepared for the Parole Board.  The Judge thought it may have assisted in terms on “the management of her sentence”.  In fact, no such report had been prepared.

[6]      Ms Keen did not accept the indication.  Judge Saunders did not have any such report before him when eventually Ms Keen did plead guilty to the amended charges and was sentenced on 10 May 2017.

[7]      Dr  Tegwyn  Williams,  a  consultant  forensic  psychiatrist,  has  provided  a detailed psychiatric report on Ms Keen dated 11 August 2017 at the request of her counsel.  He has been Ms Keen’s treating forensic psychiatrist within Christchurch Women’s   Prison   since   15   September  2016   and   says   he   has   seen   her  on approximately 16 occasions between then and August 2017.   As background, he refers to her strong family history of mental health problems and how she became involved in criminal offending.  From being a victim of extreme abuse in her early life, she moved into situations where she could be further abused but also became involved  in  her significant  criminal  offending.   That  offending has  made her  a menace to others and has resulted in approximately 20 prison sentences.  At the age of nearly 43, she has spent nearly 24 years in prison.

[8]      Ms Keen had no contact with specialist mental health services before being referred to the forensic psychiatric mental health team within Christchurch Women’s Prison because of concerns about her low mood and suicide risk.

[9]     Dr Williams describes the progress Ms Keen has gradually made with appropriate medication and the psychiatric care which Dr Williams and others have been providing.   Dr Williams reports that Ms Keen has shown an ability to work with specialist mental health services and has benefited from both psychological and medication treatments which may reduce her risk of further offending.  That is what she wants for herself and her family.

[10]     Dr Williams reported that Ms Keen had decided that she needs to first deal with her addiction issues and that this would require residential placement, also that she  required  ongoing  oversight  by  specialist  mental  health  services  for  the foreseeable future.

[11]     In his submissions for Ms Keen, Mr Glover stated that Ms Keen agreed with Dr Williams’ views about what she needs and that she was due to appear before the Parole Board in about a month’s time.  However, Ms Keen did not want any sort of parole that would release her back into the community with a few conditions, but little in terms of financial, practical or other support.  She wants to be admitted to a

residential programme, as suggested by Dr Williams, with oversight from specialist mental health services.

[12]     Mr Glover submitted that, with this information, the Court should allow the appeal against sentence and impose an alternative sentence which would see Ms Keen placed in an appropriate residential setting where she will receive the treatment she needs.  His less preferred alternative was for the Court to indicate its support for Ms Keen to be placed on parole in the sort of setting which she is looking for.

[13]     It appeared from Mr Glover’s submissions that he was suggesting that  I should  allow the appeal  and  impose a sentence of intensive supervision with a special condition that she be placed in a residential psychological programme, pursuant to ss 54G and 54H Sentencing Act 2002.   To impose such a sentence, I would have to be satisfied that a sentence of intensive supervision would reduce the likelihood of further offending by Ms Keen through her rehabilitation and reintegration.  I would also have to be satisfied that the nature of her rehabilitative or other needs requires the imposition of conditions for a period long than 12 months or conditions which are not available through the sentence of supervision.

[14]     I could probably infer from Dr Williams’ report that Ms Keen does need to be subject to conditions for a period longer than 12 months and that she does need to be in a residential setting which would not be achievable with a sentence of just supervision.  I note, a sentence of intensive supervision may be for a period not less than six months but not more than two years.

[15]     I have no doubt the Parole Board will be receptive to the prospect that Ms Keen should be placed on parole in the sort of residential setting which Dr Williams has spoken of.  I see the merit in this happening at the earliest date possible so as to enable her to be in such a setting for as long as possible during her present sentence. This would allow her to benefit from being in such a programme but with the sanction of her potentially being recalled to prison for the remainder of her prison sentence if, for some reason, the programme is not as successful as she or others would want.

[16]     I also consider the Parole Board will be better placed to manage and facilitate Ms Keen’s transfer to such a setting and to ensure that it is implemented in the way which is going to be of the greatest assistance to her and which will also reduce the potential for further offending.   There would be real difficulties for Ms Keen if I were to simply allow the appeal and impose an alternative sentence of intensive supervision without Corrections having put in place the arrangements necessary to ensure that the transfer from prison to a residential setting could take place in a way without putting Ms Keen at risk.

[17]     The fact also remains that the sentences originally imposed in the District Court were appropriate in all the circumstances in which they were imposed.  An appeal against sentence should be allowed only if I am satisfied there was a material error in the imposition of the sentence and a different sentence should have been imposed.  I see considerable merit in what Ms Keen, her counsel and Dr Williams would like to achieve and commend all for the progress that has been made but I consider it will be more appropriate for those objectives to be considered and responded to by the Parole Board rather than through the allowing of the appeal and substitution of an alternative sentence.

[18]     For those reasons, the appeal is dismissed.

Solicitors:

Rupert Glover, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.