Keenan-Fry v Police

[2021] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000544

[2021] NZHC 562

BETWEEN

LAURANCE KEENAN-FRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 March 2021

Appearances:

P Syddall for Appellant

R Morrison for Respondent

Judgment:

18 March 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 18 March 2021 at 3.30 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Meredith Connell, Auckland P Syddall, North Shore City

KEENAN-FRY v NEW ZEALAND POLICE [2021] NZHC 562 [18 March 2021]

Introduction

[1]                  The appellant, Laurance Keenan-Fry, appeals a sentence of 25 months’ imprisonment imposed on him by Judge Glubb in the District Court at Waitakere on 4 December 2020.1 The sentence was imposed in relation to the following charges:

(a)unlawful possession of a firearm contrary to s 45(1) of the Arms Act 1983 (x 2);

(b)unlawful possession of ammunition contrary to s 51 of the Arms Act (x 2);

(c)possession of a methamphetamine pipe contrary to s 13(1)(a) of the Misuse of Drugs Act 1975;

(d)possession of cannabis contrary to s 7(1)(a) and (2) of the Misuse of Drugs Act;

(e)dangerous driving contrary to s 35(1)(b) of the Land Transport Act 1998;

(f)failing to stop for the police contrary to s 52A(1)(a)(ii) of the Land Transport Act;

(g)driving while forbidden contrary to s 52(1)(c) of the Land Transport Act; and

(h)breach of release conditions contrary to s 71(1) of the Parole Act 2002.

[2]                  On appeal, Mr Keenan-Fry submits that the discounts afforded to him by the Judge were insufficient and that, as a result, the end sentence imposed was manifestly excessive. The respondent supports the sentence imposed and says that it was within the available range given the offending and Mr Keenan-Fry’s culpability.

1      New Zealand Police v Keenan-Fry [2020] NZDC 25256.

Background

[3]                  Mr Keenan-Fry was forbidden to drive until he obtained a driver’s licence as long ago as February 2011.

[4]                  In January 2020, a person was observed by the police driving a motor vehicle in Ranui. The police signalled the driver to pull over, but the driver accelerated away. The police followed the vehicle. The driver reached speeds of up to 90 kilometres an hour in a residential area with a 50 kilometre an hour speed limit. The driver repeatedly crossed the centre line and drove on the wrong side of the road.

[5]                  The police abandoned the pursuit. Instead the driver was followed by the police helicopter from above.

[6]                  At one point a silver Colt pistol was thrown out of the driver’s side window of the motor vehicle. The pistol was retrieved by the police. It had a magazine in it which contained three live 9 millimetre rounds of ammunition.

[7]                  The driver was apprehended by the police a short time later getting out of the vehicle. It was Mr Keenan-Fry and the police quickly ascertained that he was forbidden from driving.

[8]                  The police found a bag in the vehicle. Inside the bag was another magazine that matched the pistol that had been thrown out of the car window. The police also found a small plastic ziplock bag containing .33 grams of cannabis plant material as well as a sawn off double-barrel shotgun and 11 live shotgun shells. Two more shells were located in a bag that Mr Keenan-Fry tried to hide together with a used methamphetamine pipe.

[9]                  The charges were filed in the District Court at Waitakere on 21 January 2020. Mr Keenan-Fry was initially remanded in custody. Not guilty pleas were entered in February 2020. Mr Keenan-Fry applied for electronically monitored (EM) bail. It was declined by Judge Glubb on 26 March 2020.2 Mr Keenan-Fry then sought a

2      Police v Keenan-Fry [2020] NZDC 5666.

sentence indication. It was given by Judge Glubb on 12 May 2020.3 The Judge indicated a likely sentence of 27 months’ imprisonment. The sentence indication was promptly accepted and guilty pleas were entered on 15 May 2020.

[10]               Sentencing was scheduled for 10 September 2020, but it was adjourned because Mr Keenan-Fry was making good progress in the LIMA unit at Mt Eden Prison (the LIMA unit is a dedicated unit aimed at providing early drug and alcohol rehabilitation programmes for remand prisoners). Mr Keenan-Fry applied afresh for EM bail to a property occupied by the Ahikaa Trust because it offers a pathway to the Bridge Programme. This application was declined by Judge Glubb.4

[11]Mr Keenan-Fry was finally sentenced on 4 December 2020.

District Court sentence indication/sentencing

Sentence indication

[12]               The Judge, after summarising the offending, recorded his view that it involved a degree of planning and premeditation, and that it presented extreme risks, given the way in which Mr Keenan-Fry had driven and his possession of a loaded firearm and another firearm together with ammunition. The Judge also noted that Mr Keenan-Fry was subject to sentence at the time, and that he had only just been released from a term of imprisonment for essentially similar offending. The Judge could see no mitigating features relating to the offending.

[13]               The Judge noted the competing submissions. He referred to various authorities, in particular cases dealing with the possession of firearms. He considered that the possession of a firearm charges were the lead charges and he adopted a starting point for this offending of 26 months’ imprisonment. He uplifted this starting point by eight months for the balance of the offending – taking him to a combined starting point of 34 months’ imprisonment. He noted Mr Keenan-Fry’s previous convictions and uplifted this adjusted starting point by a further six months to take them into account and to recognise that the offending was committed while Mr Keenan-Fry was

3      Police v Keenan-Fry DC Waitakere CRI-2020-090-324, 12 May 2020.

4      Police v Keenan-Fry [2020] NZDC 22101.

subject to sentence. This took the Judge to a starting point sentence of 40 months’ imprisonment.

[14]               The Judge then turned to look at Mr Keenan-Fry’s personal circumstances and “apparent” addiction (“apparent” because he did not have any assessment report in relation to the claimed addiction). The Judge nevertheless was satisfied that drugs were driving Mr Keenan-Fry’s offending and he indicated that he would discount any sentence imposed by 15 per cent for Mr Keenan-Fry’s personal circumstances and addiction issues. The Judge did say that he would need to see some evidence of this at sentencing if the indication was accepted. This took the Judge’s starting point back down to 34 months’ imprisonment. He then indicated that he would be prepared to give Mr Keenan-Fry a discount of 20 per cent if guilty pleas were entered, which took him down to 27.2 months’ imprisonment. He rounded that figure down in Mr Keenan- Fry’s favour to 27 months’ – or two years and three months’ – imprisonment. The Judge considered that a sentence of this length was not amenable to “conversion”. Even if it were, he observed that the need for denunciation and deterrence, and the need to hold Mr Keenan-Fry accountable and to protect the community, meant that a non-custodial sentence would not be appropriate.

Revision to recognise Moses v R

[15]               When Mr Keenan-Fry sought EM bail in October 2020, the Judge indicated that he had reviewed his sentence indication of 27 months’ imprisonment, and had recalculated, given the decision of the Court of Appeal in Moses v R.5 As a result, the indication came down to a term of imprisonment of 26 months.

Sentencing

[16]               At sentencing, the Judge adopted in full his sentence indication. He recorded that he had since received a pre-sentence report, and that Mr Keenan-Fry had acknowledged to the report writer that methamphetamine was a problem for him. The Judge noted that Mr Keenan-Fry was assessed as presenting a high risk of harm and of further offending, and that his compliance with community based sentences in the

5      Moses v R [2020] NZCA 296.

past had been poor. The Judge also noted that Mr Keenan-Fry had worked as a mechanic and that his short-term goal, on release, was to deal with his methamphetamine problem and then to get back into employment.  He noted that   Mr Keenan-Fry had a sponsor in the community, that he had left a gang, that he was in the process of getting a gang facial tattoo removed and that he had undertaken a number of rehabilitative courses. He recorded that Mr Keenan-Fry had acknowledged to the report writer that it was time he took responsibility for his actions and learnt from his past mistakes. The Judge recorded that the report writer nevertheless recommended a sentence of imprisonment.

[17]               The Judge also referred to a letter of remorse he had received from Mr Keenan- Fry. He noted that there was a safety plan in place for him on his release from custody, setting out what he proposed to do and detailing the strategies in place to ensure that he did not fall back into his old habits. The Judge accepted that Mr Keenan-Fry had been doing good work in the LIMA unit. He also noted that Mr Keenan-Fry had done a number of rehabilitation courses. He reviewed Mr Keenan-Fry’s Community Alcohol and Drugs Services (CADS) assessment report, and acknowledged that drugs had been an issue for him. The Judge also referred to a report prepared pursuant to s 27 of the Sentencing Act 2002. He considered that this report was instructive; it summarised Mr Keenan-Fry’s difficult upbringing, various adverse childhood experiences, his poor educational outcomes and the early onset of his drug addiction.

[18]               The Judge noted that counsel was submitting that further discounts should be made available to Mr Keenan-Fry, and suggesting that intensive supervision would be the best way to deal with the acknowledged offending. The Judge recorded that:6

… as I indicated at the time that I declined your electronically monitored bail, I was not inclined to give further discount for those matters having given a reasonably generous discount already in terms of the 15 per cent allocated previously.

Further, the Judge was not satisfied that there was “a direct nexus” between the firearms related offending and Mr Keenan-Fry’s difficult upbringing. He did however acknowledge that drugs had been a real factor in Mr Keenan-Fry’s life and recorded

6 New Zealand Police v Keenan-Fry, above n 1 at [15].

that that had been the basis on which the discount discussed in the sentence indication had been framed. The Judge wanted to recognise the good work Mr Keenan-Fry had achieved in the LIMA unit and to encourage him in his efforts at rehabilitation. He accepted that Mr Keenan-Fry had shown a marked difference in his approach. He gave Mr Keenan-Fry a further one month discount for the efforts he had made, and he imposed an end sentence of 25 months’ imprisonment on the firearms offending. He did not impose any release conditions, leaving this to the Parole Board. Concurrent sentences were imposed for all of the other offences and disqualification was ordered in relation to the driving related offending.

The appeal

[19]               The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. The fact that Mr Keenan-Fry received a sentence indication does not affect his right to appeal the sentence imposed.7

[20]               This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.8 This Court does not start afresh. Nor does it simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error by the original sentencer, whether intrinsically or as a result of additional material submitted on appeal. If there is an error, the Court will then consider whether that error is material and whether it has resulted in a manifestly excessive sentence. The focus is on whether the sentence imposed is within range, rather than the process by which it was reached.9

Submissions

[21]               Mr Syddall, appearing for Mr Keenan-Fry, did not challenge the starting point adopted by the Judge for the firearms related offending. Nor did he challenge the uplifts to recognise the additional offending, Mr Keenan-Fry’s criminal history and that the offending was committed by Mr Keenan-Fry whilst subject to sentence. The

7      Criminal Procedure Act 2011, s 245.

8      Section 250(2).

9      Tutakangahau v R [2014] NZCA 279 at [30]-[36].

appeal was limited to  the discounts allowed by the  Judge.  He argued that  when  Mr Keenan-Fry accepted the sentence indication, he had reason to believe that further discounts might be made available to him, and that the Judge erred in allowing only a modest additional discount of one months’ imprisonment (or 2.5 per cent) to reflect the additional information which was available to him when the sentence was imposed

– namely, a s 27 cultural report, a comprehensive drug assessment, a pre-sentence report and further information on Mr Keenan-Fry’s rehabilitation efforts. It was submitted that Mr Keenan-Fry should have been afforded an additional discount for these various matters, but an additional discount was not allowed with the result that the end sentence was manifestly excessive.

[22]               Mr Morrison, for the Crown, noted the Judge’s observation that there was no direct nexus between the firearms related offending and the matters discussed in the s 27 report. It was argued that this conclusion was open to the Judge and that, as a result, no further discount was required to recognise Mr Keenan-Fry’s difficult upbringing and cultural background. It was further noted that the Judge, in his sentence indication, accepted that Mr Keenan-Fry has a drug addiction and that he would be prepared to give him a 15 per cent discount for his personal circumstances and addiction issues. At sentencing, the Judge confirmed his view that Mr Keenan-Fry had addiction problems and granted the 15 per cent discount indicated in the sentence indication. It was argued that this  was  generous.  It  was  also  submitted  that  whether  or  not Mr Keenan-Fry should be afforded an additional discount for the remorse expressed was a matter for the Judge and that it was open to him to conclude that there was no genuine remorse, given Mr Keenan-Fry’s previous convictions. It was noted that the Judge gave an additional discount of one month to reflect Mr Keenan-Fry’s rehabilitative efforts. It was acknowledged that the Judge could have given a greater discount for those efforts, but that, when considered in totality with the “already generous discount” for Mr Keenan-Fry’s drug addiction, the end sentence was within range.

Analysis

[23]               No issue has been taken with the Judge’s starting point nor with the uplifts imposed. This appeal focuses on whether or not sufficient discounts were afforded to Mr Keenan-Fry.

[24]               When the Judge gave the sentence indication, he noted submissions made by counsel for Mr Keenan-Fry that drugs were driving his offending. The Judge noted that he did not have any assessment report to this effect, but that he would be prepared to give a 15 per cent discount both for Mr Keenan-Fry’s personal circumstances and addiction issues, if evidence could be adduced satisfying him as to these matters. The Judge did not resile from this indication at sentencing.

[25]               At sentencing, there were comprehensive materials available to the Judge, none of which was available when the sentence indication was given.

(a)First, there was the pre-sentence report. It recorded that Mr Keenan- Fry had acknowledged that he had been using methamphetamine for some time prior to the January 2020 offending, and that his use of methamphetamine directly affects his ability to consider the consequences of his actions. Mr Keenan-Fry advised the report writer that he had been using methamphetamine for years, to the point where he was consuming on average between one and two grams a day. Most of his income went on purchasing the drug.

(b)Secondly, there was an alcohol and drug treatment report prepared by CADS. That report recorded that Mr Keenan-Fry had left a gang with which he was associated and that he was in the process of getting gang- related facial tattoos removed. Mr Keenan-Fry told the report writer that he first consumed alcohol at the age of 12 years, that he first consumed cannabis when he was eight years of age, and that he first consumed methamphetamine at the age of 12. Initially he smoked methamphetamine but he started to use it intravenously at the age of 16 years. Mr Keenan-Fry stated that his usage had increased to three grams of methamphetamine a day. He also said that he had

experimented with other illicit drugs, including acid, ecstasy and GBL. He has been treated in the Odyssey programme and he enrolled for other alcohol and drug courses. He had not however engaged in those courses, either failing to attend or attending infrequently. Mr Keenan- Fry also reported that he was diagnosed with ADHD as a child and that he received ritalin for that condition. There was a brief summary of his family  and  personal  development  histories.   It  was  noted  that   Mr Keenan-Fry has a young daughter. Mr Keenan-Fry was assessed as suffering from moderate cannabis use disorder and severe methamphetamine use disorder. Mr Keenan-Fry said that he was motivated to turn his life around, and that his motivation to do so was to be part of his family. He was assessed as being a suitable candidate for an alcohol and drugs rehabilitation programme.

(c)Thirdly, there was the cultural report prepared pursuant to s 27 of the Sentencing Act. It noted Mr Keenan-Fry’s disadvantaged background. His parents separated at an early age; he was subject to an early custodial sentence in a youth facility, he is disconnected culturally; he suffered physical abuse as a child; he became involved in a gang at an early stage; he had a fractured pathway through education that ended prematurely without him obtaining any formal qualifications; he was introduced to drugs at an early age and subsequently became an addict; he indulged in sexual activity, also at a very early age. He was expelled from school in year 9. He was given a custodial sentence in a facility in Palmerston North when he was 14. He joined a gang as a teenager because it gave him a sense of belonging. The report writer considered that Mr Keenan-Fry’s background is one of pervasive and persistent social, emotional and cultural disadvantage. Mr Keenan-Fry’s background had resulted in a man who, in his own words, feels “overwhelmed with even the basic stuff in life”. The report writer also considered Mr Keenan-Fry presented as a man who is highly motivated to stay off drugs, and that he is committed to participating in rehabilitation programmes to address his addiction issues. It was noted that he has the unwavering support of his mother, his brother and an

independent mentor  who  he  calls  frequently.  It  was  noted  that  Mr Keenan-Fry is asking for help for the first time and that this is a “huge milestone”.

(d)Fourthly, there were various reports into Mr Keenan-Fry’s successful rehabilitative efforts.

[26]               Considering all of this material in the round, in my view, the Judge erred when he allowed only a 17.5 per cent discount to Mr Keenan-Fry.

[27]               Where drug addiction is shown to be causative of offending, it is a mitigating consideration, and it can justify a sentence discount of up to 30 per cent. Addiction can also combine with mental health issues, with the result that both can be considered in combination. Addiction calls for consideration of a rehabilitative response as part of sentencing.10

[28]               I am satisfied, as was the  Judge,  that  addiction  played  a  major  part  in  Mr Keenan-Fry’s offending. It appears from the various reports that he had been using methamphetamine at or about the time of the offending. He told various report writers that he was in possession of the firearms, not for some sinister purpose, but rather to trade for drugs. There is nothing to deny this assertion and the Crown did not comment on it at the appeal hearing. In my judgment, Mr Keenan-Fry should have been afforded a discount of 20 per cent for his drug addiction issues.

[29]               Further, it is clear that Mr Keenan-Fry has genuinely sought to engage in rehabilitative efforts. He was placed in a LIMA unit at Mt Eden Prison whilst on remand. Reports from the Department of Corrections advise that he willingly participated in the programmes offered in that unit, that his incarceration in the unit was incident free and that his behaviour has improved over time. Mr Keenan-Fry completed a number of programmes, namely Kairology: Time for Change; Six Thinking Hats; CADS; Dynamics of Whānaungatanga; Controlling Anger Workbook; an Alcohol and Other Drug Treatment Court (AODTC) Workbook; Discovering Fatherhood; Anger Management; an Alcohol and Other Drug Relapse Prevention

10     See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Workbook and Sensory Modulation and Wairua. He was undertaking or proposing to undertake further programmes – Tikanga Maori; Mediation; Life 101; Parenting; Theory for a Driver’s Licence Theory; Meditation. The Department of Corrections noted that Mr Keenan-Fry was engaging well with staff, and that he was always asking about options available in custody and in the community to help him make changes in his lifestyle choices. It was noted that he had diligently worked his way through the programmes on offer in the LIMA unit, and that his work had shown insights into his offending. It was also observed that he had supported other participants in the programmes. Staff made positive comments about his motivation levels and compliance.  The  Principal  Corrections  Officer  in  the  unit  entered  a  note  in  Mr Keenan-Fry’s records that “… he appears to be building a positive thought process. It is hopeful that Laurance has a clear pathway for his future to recovery”.

[30]               Mr Keenan-Fry’s family paid for him to be admitted to The Retreat, a private rehabilitation facility. That offer was however subsequently withdrawn when The Retreat became aware of the charges Mr Keenan-Fry was facing and his criminal history. He then made application to be admitted into the Waitakere AODTC. That application was declined. A placement was then obtained for him at Ahikaa and, as noted above, a further EM bail application was advanced before Judge Glubb to facilitate his placement in that programme. The Judge however did not grant the same. Mr Keenan-Fry also applied to Odyssey House, Epsom Lodge, Gracegate and the Wings Trust.

[31]               It is difficult to see that Mr Keenan-Fry could have done much more. I agree with Mr Syddall that the Judge did not fully recognise Mr Keenan-Fry’s attempts to rehabilitate himself. I would allow him an additional discount of 10 per cent to recognise his various and to date successful rehabilitative steps.

[32]               Mr Syddall also argued that Mr Keenan-Fry should be entitled to a further discount for his personal circumstances. I have read the cultural report. Mr Keenan- Fry clearly had a poor start to life. However, before a discount can be available for personal and cultural matters, there must be a causal link between the personal

circumstances/cultural deprivation and the offending.11 Judge Glubb considered that there was no direct nexus between the firearms related offending and Mr Keenan-Fry’s upbringing. I accept the point made by Mr Morrison that that finding was open to the Judge. There is no clear causative link. Accordingly, I do not consider that the Judge erred when he declined a further discount for this factor.

[33]               Finally, there is the issue of remorse. Mr Keenan-Fry submitted that he should be entitled to a discrete discount for remorse. He wrote a letter of apology to the Court. He also told various of the report writers that he is remorseful. Judges can be sceptical of indications of remorse where the circumstances indicate that it is not genuine.12 In sentencing, the Judge acknowledged the letter, but did not allow a discreet discount for remorse. In my judgment, this course was open to the Judge. Mr Keenan-Fry was a recidivist offender. He has seven previous firearms convictions and a host of other convictions for not dissimilar offending. It was open to the Judge not to give any further discount even for a genuine expression of remorse, and I am not persuaded that the Judge erred in this regard.

[34]               There has been no challenge to the Judge’s finding that a 20 per cent discount was appropriate for the guilty pleas entered.

[35]               It follows that, with the additional discounts I am prepared to allow, the total appropriate discount should have been 50 per cent of the sentence that would otherwise have been imposed of 40 months’ imprisonment. The resulting end sentence should, in my view, have been one of 20 months’ imprisonment. As a result, the appeal is allowed. The sentence of 25 months’ imprisonment imposed by the Judge for the firearms and ammunition offences are set aside, and a sentence of 20 months’ imprisonment is imposed in respect of each of those offences. The other sentences imposed by the Judge are upheld, as are the periods of disqualification and the start dates of those periods of disqualification. All sentences of imprisonment are to be served concurrently.

11     Zhang v R, above n 10 at [159].

12     R v Lambert CA456/05, 4 April 2006 at [25].

[36]               Mr Keenan-Fry has been in custody since 20 January 2020. I am imposing a short term sentence of imprisonment. On release of this judgment, Mr Keenan-Fry will be eligible for immediate release. I discussed this with counsel and both agreed that, if I reached this point, it would be appropriate to impose special conditions on his release. As a result, I impose the following special conditions of release:

(a)Mr Keenan-Fry is to reside at such address as shall be approved in writing by a probation officer. He is not to move from that address until he has the prior written approval of a probation officer;

(b)Mr Keenan-Fry is not to possess or consume alcohol, controlled drugs or psychoactive substances, excluding those prescribed to him by a doctor;

(c)Mr Keenan-Fry is to attend as required for alcohol and drug assessments, and is to attend such alcohol and drug programme(s) (including residential programmes), as shall be directed by a probation officer. Mr Keenan-Fry is to participate in and complete any such programme(s);

(d)Mr Keenan-Fry is to attend an assessment for a departmental programme/maintenance group and attend, participate in and adhere to the rules of the programme/maintenance group as directed by a probation officer;

(e)Mr Keenan-Fry is to obtain the written approval of a probation officer before starting, changing or leaving employment (including voluntary and unpaid work);

(f)Mr Keenan-Fry is not to engage or associate with any gang or any gang members.

[37]               These special conditions are imposed pursuant to s 93(2) of the Sentencing Act. They are intended to facilitate and promote Mr Keenan-Fry’s rehabilitation and

reintegration  into  society.    They are to apply for a  period  of  six  months  from Mr Keenan-Fry’s sentence expiry date.

Wylie J