Keenan v The Queen - [2021] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA578/2020
[2021] NZCA 118

BETWEEN	SHAUN JOSEPH KEENAN Applicant
AND	THE QUEEN Respondent

Court:	Brown, Katz and Edwards JJ
Counsel:	E A Hall for Applicant S E Trounson for Respondent
Judgment: (On the papers)	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…

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.

Continue reading Keenan v The Queen

Details

AGLC: Keenan v The Queen [2021] NZCA 118
Case: [2021] NZCA 118
Decision Date: 15 April 2021 at 12.30 pm

CaseChat Overview and Summary

In Keenan v The Queen, the Court of Appeal of New Zealand considered an application for leave to bring a second appeal against the applicant's sentence. Shaun Joseph Keenan, a member of the Ngāti Te Whiti hapū, pleaded guilty to multiple charges of forgery, theft by a person in a special relationship, and obtaining by deception. The Court had previously dismissed an appeal against the imposition of a minimum period of imprisonment (MPI). Keenan sought leave to appeal against the sentence on the basis that the sentencing methodology and calculation resulted in a manifestly excessive sentence. The Crown opposed the application. The Court of Appeal found that the application did not raise a matter of general or public importance. Nor did it find that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Consequently, the Court declined the application for leave to bring a second appeal against the sentence.

The Court of Appeal considered the relevant principles governing the application for leave to bring a second appeal. Leave to appeal is only granted if the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred. In terms of the latter, the Court noted that not every error will give rise to a miscarriage of justice. The Court also considered that, generally, leave to appeal is restricted to the grounds of appeal advanced in the High Court. However, leave may be granted if strict adherence to this rule may produce a miscarriage of justice. The Court noted that 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.

The Court of Appeal found that the application did not raise a matter of general or public importance. Nor did it find that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The Court found that 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. Consequently, the Court declined the application for leave to bring a second appeal against sentence.

Orders