Keenan v Police - [2014] NZHC 1894

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000056 [2014] NZHC 1894

CHRISTOPHER LANCE KEENAN

v

NEW ZEALAND POLICE

Hearing: 7 August 2014

Appearances:

M Cole and R Mathieson for Appellant
S J Jamieson for Respondent

Judgment:

12 August 2014

JUDGMENT OF DUNNINGHAM J

[1] On 28 January 2014, Mr Keenan drove to the ATM to get some cash. Unfortunately, Mr Keenan was disqualified from driving at the time. Indeed he had
10 convictions for the same offence amassed over the previous four and a half years.

[2] The District Court Judge took a dim view of such recidivism. He said “the gravity of your offending in this case must be regarded as near the top of the scale of this offence”, and it required “a steely response”.1 The Judge then took a starting point of 20 months imprisonment and reduced it by the maximum of 25 per cent for a prompt guilty plea, to leave a final sentence of 15 months imprisonment. He also disqualified Mr Keenan from holding a licence for one year and six months from the date of sentencing. Finally, he also refused home detention on the basis that “nothing short of imprisonment will achieve the purposes of sentencing set out in the
Act”.2

1 Police v Keenan DC Christchurch CRI-2014-075-67, 1 July 2014 at [5].
2 At [8].

KEENAN v NEW ZEALAND POLICE [2014] NZHC 1894 [12 August 2014]

[3] Mr Keenan appeals that decision. The issues I must decide are:

(a) Did the Judge err by focusing too strongly on the principles of deterrence and denunciation and insufficiently on the mitigating factors identified in the pre-sentence report?

(b)Is the end sentence manifestly excessive, particularly when regard is had to consistency with other sentences given to offenders with multiple driving while disqualified offences?

(c) Did the Judge err in failing to have regard to s 94 of the Land Transport Act 1998 and the appropriateness of a community- based sentence, in place of mandatory disqualification.

Background

[4] Mr Keenan is only 24, but he has seven convictions for driving while prohibited accumulated between 29 January 2008 and 17 April 2009, and 10 convictions for driving while disqualified accumulated between 30 September 2009 and 3 October 2012.

[5] The sentences imposed on Mr Keenan for the offences of driving while disqualified have ranged from community work and disqualification from driving, through to home detention and imprisonment, with the longest sentence of imprisonment being eight months imposed on 29 July 2011.

[6] Mr Keenan has a number of other convictions, primarily for low level offences including theft, burglary, breaches of release conditions and unlawful taking of motor vehicles.

[7] As the pre-sentence report identifies, the factors “contributing to his offending is his general attitude towards the law and his lack of concern in continuing to be a law unto himself. In terms of risk of reoffending, Mr Keenan was assessed as at high risk, due to his continued bad judgement”.

[8] However, Ms Cole pointed to…

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.

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Details

Case: [2014] NZHC 1894
Decision Date: 12 August 2014

CaseChat Overview and Summary

Keenan appeals a decision of the District Court which imposed a sentence of 15 months imprisonment for driving while disqualified. The appeal focuses on three issues: whether the District Court erred in not taking into account mitigating factors such as the appellant’s remorse and change in circumstances; whether the sentence was manifestly excessive; and whether the District Court erred in not considering a community-based sentence in lieu of disqualification. The High Court found that the District Court had erred in not taking into account the appellant’s remorse and change in circumstances. However, the Court found that the District Court did not err in imposing a sentence of imprisonment over home detention, or in not considering a community-based sentence in lieu of disqualification, as the appeal against the imprisonment sentence had succeeded. The appeal is allowed to the extent that the sentence of imprisonment is set aside and replaced with a sentence of one year. The period of disqualification is unaffected by the appeal.

Orders