Keenan v The Queen
[2021] NZCA 118
•15 April 2021 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA578/2020 [2021] NZCA 118 |
| BETWEEN | SHAUN JOSEPH KEENAN |
| AND | THE QUEEN |
| Court: | Brown, Katz and Edwards JJ |
Counsel: | E A Hall for Applicant |
Judgment: | 15 April 2021 at 12.30 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
The applicant, Mr Keenan, pleaded guilty to six charges of forgery,[1] 36 charges of theft by a person in a special relationship,[2] and four charges of obtaining by deception.[3] He was sentenced in the District Court at New Plymouth to three years and eight months’ imprisonment with a minimum period of imprisonment (MPI) of 50 per cent.[4] An appeal to the High Court on the sole issue of the imposition of the MPI was dismissed.[5]
[1]Crimes Act 1961, s 256(1).
[2]Section 220.
[3]Section 240(1)(a).
[4]R v Keenan [2019] NZDC 16310 [Sentencing notes].
[5]Keenan v R [2019] NZHC 3339 [High Court judgment].
Mr Keenan now seeks leave for a second appeal directed not only to the issue of the MPI but also other aspects of the Court’s reasoning on sentence. Leave to appeal is opposed by the Crown.
Relevant background
Mr Keenan is a member of the Ngāti Te Whiti hapū. As a consequence of a settlement between Ngāti Te Whiti and the Crown, two parcels of land were vested in two land trusts. Mr Keenan became a trustee and subsequently chairperson of both.
In 2012 those trusts were merged into a new trust, the Ngāti Te Whiti Whenua Topu Trust (the Trust), and Mr Keenan was appointed as the project manager for the building of a marae which was of particular importance to both the Trust, the hapū and the wider New Plymouth community.
The circumstances of Mr Keenan’s offending are conveniently summarised in the sentencing notes.[6]
[5] In 2014 you were appointed as the first Chief Executive of the trust. As part of that role you had full access to trust bank accounts including income and expenditure and also the ability to authorise payments. Also you were responsible for reporting to the trust board and making sure that the financial interests of the trust were correctly managed.
[6] In 2016 trust board members became concerned about the finances of the trust and the state of the marae project that was not progressing. Particularly concern arose because there had not been audited accounts since the 2013-2014 financial year. This had been raised with you at meetings and deflected.
[7] By the end of 2016 the trust did not have enough money to pay the salaries of employees and honorariums of the trustees. On 19 December 2016 your employment was terminated with immediate effect. At that stage your offending was apparent.
[8] The secretary of the trust established … that there had been numerous large unaccounted deposits made into your business bank account at the ANZ Bank. From her rudimentary audit a figure of $335,000 of suspicious transactions were identified. Some of those are set out in the summary of facts and what [that] makes apparent is that after payment of the unauthorised funds into the company bank account then slowly but surely they made their way into the personal bank account of yourself and your wife. From there living costs and other outgoings were met.
[9] On 6 May 2017 you met with members of the trust board and acknowledged your misappropriation. You agreed to pay the full amount back by 31 May 2017. No such payment was made then, nor has there been subsequently, any repayment of the monies taken.
[10] On 24 May 2017 a formal complaint was made to the police by the trust. The total amount that you accept, following a police forensic audit, that has been taken is the amount of $486,045.71.
Sentencing
[6]Sentencing notes, above n 4.
The material available to the Judge at sentencing included, in addition to the Department of Corrections Provision of Advice to Courts, a specialist whānau cultural assessment report, a report from the Taranaki Restorative Justice Trust, letters in support of Mr Keenan and several victim impact statements.
Judge Barkle adopted a starting point of five years and six months’ imprisonment, noting among other things the lengthy timeframe of the offending,[7] the degree of premeditation, the gross breach of trust involved and the considerable harm done to some 1800 hapū members.[8] A discount of 12.5 per cent (eight months) was allowed for Mr Keenan’s limited personal mitigating features, including remorse, proposed payment of reparation, prior good character and a willingness to undertake restorative justice.[9] A further 25 per cent discount (fourteen months) was applied for his early guilty plea resulting in an end sentence of three years and eight months’ imprisonment.[10]
[7]The sentencing notes erroneously records the timeframe of offending as between 2002 and 2017. In fact the commencement of offending was in 2012.
[8]Sentencing notes, above n 4, at [19] and [22].
[9]At [44].
[10]At [46].
With reference to the imposition of an MPI the Judge said:
[47] Finally, I consider whether a minimum period of imprisonment should be imposed. Section 86(2) Sentencing Act provides the criteria that are to be applied. I have already recorded the features especially aggravating of your offending Mr Keenan. I cannot overlook the lengthy period that you offended, the amount that you took, that your conduct was calculated and premediated whatever the reason you provide for why you acted in that manner. Most particularly, what weighs with the Court is the enormous breach of trust, you being a member of the hapū and whanau from whom you stole. Nor can I overlook that your offending has caused immeasurable harm to a very large number of victims.
[48] In my determination Mr Keenan to hold you properly accountable, properly to denounce your offending and to demonstrate adequate deterrence of such conduct a minimum period of imprisonment of 50 percent of the end sentence will be imposed.
The High Court appeal
As noted above,[11] the appeal to the High Court was confined to the imposition of the MPI. It was contended that the sentencing Judge failed to give any or adequate weight to Mr Keenan’s remorse, his status as a first offender, his desire to attend a restorative justice conference, the apology delivered as part of sentencing and the hardship of prison given his previous occupation as a police officer.
[11]At [1].
The thorough decision of the High Court noted that the funds stolen represented part of the proceeds of settlement of the iwi’s historical claim against the Crown and rejected the analogy advanced by Mr Keenan’s counsel that the situation could be compared to shareholders in a company or workmates affected by dishonesty.[12] The judgment considered the issues of a lack of remorse, supported by observations of the authors of the pre-sentence report and the s 27 cultural report, and failure to pay reparation. The Judge concluded that all of the information contradicted the submissions for Mr Keenan that he did not need any deterrence from further offending and that he knows full well the harm he has caused. It supported a conclusion that an MPI was needed to adequately denounce his conduct. [13]
[12]High Court judgment, above n 5, at [37]–[39].
[13]At [69].
The Judge concluded as follows:
[70] Given the appellant’s lack of awareness of the consequences of his actions and his significant focus on himself and his immediate family rather than the victims of his dishonesty, it is debatable whether it could be said that the community does not need protecting from the appellant or that “his risk has been neutralised” as claimed by his counsel. However, even disregarding the need for protection of the community, there is a sufficient basis in denouncing the appellant’s conduct and deterring him or others from engaging in similar activities that justify the imposition of a 50 per cent MPI.
[71] Although the Judge’s discussion of the reasons why he imposed an MPI was not extensive, at [47] and [48] he clearly articulated the reasons. That distinguishes this case from the first instance decision in R v Blackler. The Judge’s approach was not “mechanistic” and there was no error in the imposition of an MPI.
Relevant principles
The application is brought under s 253 of the Criminal Procedure Act 2011 which relevantly provides:
253 Right of appeal against determination of first appeal court
(1)A convicted person may, with the leave of the second appeal court appeal to that court against the determination of a first appeal by that person or the prosecutor under this subpart in respect of the person’s sentence.
…
(3)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
This Court in McAllister v R noted that the test is in the same terms as that in (then) s 13 of the Supreme Court Act 2003.[14] In relation to s 264(2)(a) and (b) of the Criminal Procedure Act, which read in identical terms to s 253(3)(a) and (b), the Court observed:
[36] Adopting an approach consistent with that applied to s 13 of the Supreme Court Act would suggest, for example, that the threshold in s 264(2)(a) will be met where the proposed appeal gives rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”. An illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case. By contrast, there are numerous illustrations in the leave decisions of the Supreme Court where leave has been declined on the basis that the application for leave raises issues in the nature of a “factual assessment that is specific to the circumstances of the case” or the application of “well-established principles to a particular fact situation”. This approach indicates that the expansion of the test to encompass questions of fact does not necessarily mean a more liberal standard is to be applied to questions of leave on a second appeal.
[37] In terms of the miscarriage of justice limb, there are various ways of characterising the approach to be taken, for example, if there is an argument reasonable available that the court below is in error, that possibility would appear to come within s 264(2)(b), with the qualification [that not every error will give rise to a miscarriage of justice]. In the context of applying s 13 of the Supreme Court Act, the language used by that Court varies and a prescriptive approach would be unhelpful.
(Footnotes omitted.)
[14]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [32].
Section 253(1) concerns leave to appeal from the determination of a first appeal. The constraint on raising new points in a second appeal was recognised by this Court in Terry v R:[15]
[11] Applicants for leave to bring a second appeal to this Court are ordinarily restricted to the grounds of appeal advanced in the High Court. Despite that general rule, the Court hearing a leave application may be moved to allow an intending appellant to advance new grounds, if it is clear that strict adherence to the rule may produce a miscarriage of justice. …
(Footnotes omitted.)
Grounds of appeal
[15]Terry v R [2015] NZCA 108.
Both limbs of s 253(3) are invoked. It is contended that the sentencing methodology and calculation was in error and resulted in a manifestly excessive sentence. In particular it is said that:
a.The sentencing methodology adopted double counted aggravating factors in:
i.Adopting of the starting point;
ii.Declining to make allowance for mitigating factors because of the strength of the aggravating factors and
iii.Imposing a 50 percent minimum period of imprisonment.
b.The three-staged approach to calculating the sentence further exacerbated the error.
However only ground (a)(iii) was the subject of the determination of the first appeal in the High Court. Consequently we address the issue of the MPI first before considering whether the additional grounds satisfy the Terry threshold.
Discussion
The MPI
The sentencing decision identified the following six aggravating features:[16]
(a)the “large and significant” sum of money stolen;
(b)the lengthy period of time over which the offending occurred;
(c)the fact the offending continued after Mr Keenan’s employment was terminated;
(d)that the offending was planned, premeditated and continued when Mr Keenan was fully aware of its criminality;
(e)the gross breach of trust involved, particularly because Mr Keenan was a member of the whānau and hapū; and
(f)the significant impact his offending had on a large group of people, both financially and emotionally.
[16]Sentencing notes, above n 4, at [19].
Ms Hall submitted that reliance on the fourth factor involved double counting in the circumstances of this case for the reason that the first and second factors made planning and premeditation obvious.
Premeditation on the part of an offender is a factor specifically recognised in s 9(1)(i) of the Sentencing Act 2002. We do not accept the suggestion that the nature of the planning and premeditation in this case should have been ignored. The offending involved a deliberate diversion of money from the Trust’s bank accounts (over which Mr Keenan had control) to his personal bank account. It also involved taking steps to conceal the theft, such as deferring audits of the financial accounts and deflecting concern from other Trustees. Those premeditated features of the offending are distinct from the sum of money stolen and the period of time over which the offending occurred. In our view, taking into account the fourth factor was legitimate and did not amount to double counting.
Ms Hall also drew attention to the fact that, while the sentencing Judge provided what she described as a nominal small discount for remorse, Churchman J in the High Court had held that Mr Keenan’s lack of remorse warranted the imposition of an MPI. It was submitted that “the use of overstated aggravating features and failure to consider mitigating features (other than to use the alleged absence of a mitigating feature, despite the sentencing Judge acknowledging it was present) to impose an MPI is a matter of general and public importance with broad application beyond the circumstances of Mr Keenan’s case”.
We do not accept that depiction of the reasoning in the appeal judgment. The sentencing Judge considered that genuine remorse and true recognition of the harm Mr Keenan had caused was limited.[17] Churchman J had to consider whether it was so limited or whether, as Mr Keenan’s counsel argued, the sentencing Judge’s finding was undermined by Mr Keenan’s offer to attend a restorative justice conference and his oral apology.[18] After a careful analysis Churchman J rejected the submission that Mr Keenan’s actions indicated any genuine or significant degree of remorse.[19] In our view the Judge was right to do so.
[17]Sentencing notes, above n 4, at [27].
[18]High Court judgment, above n 5, at [45].
[19]At [65].
In any event however we do not accept that the proposed appeal on the MPI either raises a matter of general and public importance or involves a miscarriage of justice. The imposition of a 50 per cent MPI complied with the statutory criteria set out in s 86(2) of the Sentencing Act and was available to the sentencing Judge in the circumstances of the case. As confirmed by the High Court on appeal the Judge’s approach was not mechanistic and there was no discernible error.[20]
Other aspects of the sentencing methodology
[20]At [71].
Ms Hall also advanced the submission that, when addressing the mitigating factors, the sentencing Judge returned to the aggravating factors and discounted any need for any real reduction in the sentence, other than a modest 12.5 per cent for remorse, willingness to engage in restorative justice and the offer of reparation of $75,000 together with the 25 per cent discount for his guilty plea.
Claims that the level of discounting was inadequate or that the Court failed to properly consider the question of whether Mr Keenan was in a state whakamā were not raised in the lower court. They are not of such significance as to give rise to a miscarriage of justice and do not therefore satisfy the Terry threshold.[21] Consequently it is not appropriate for this Court to consider them for the first time on a second appeal.
[21]Terry v R, above n 15.
Finally, with reference to the mode of calculation of sentence, this Court has adopted a consistent approach of applying the two step methodology in Moses v R[22] only when calculating a revised sentence if an error has otherwise been established. The Court has declined to interfere with the sentence solely on the basis of the application of the three-step methodology as the generally small difference does not create a manifestly excessive sentence.[23] That reasoning applies in this case where a two-step approach would only result in a difference of approximately three months.
Conclusion
[22]Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
[23]See Roberts v R [2020] NZCA 441 at [53]–[54].
We consider that the application does not raise a matter of general or public importance. Nor do we consider that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Hence the threshold for leave in s 253(3) of the Criminal Procedure Act is not satisfied.
Result
The application for leave to bring a second appeal against sentence is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
Courtney J already granted the extension of time in her minute dated 27 October 2020 at [3].