Keenan v The Queen

[2005] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/04

THE QUEEN

v

RICHARD SHANE KEENAN

Hearing:16 June 2005

Court:Hammond, Baragwanath and Potter JJ

Counsel:C P Comeskey for Appellant

H D M Lawry for Crown

Judgment:23 June 2005 

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

REASONS

(Given by Hammond J)

Table of Contents

Para No.

INTRODUCTION  [1]

The facts  [4]
Mr Keenan’s personal circumstances  [9]
The High Court sentencing  [11]
Discussion
Introduction  [16]
     The facts  [17]
     The sentencing authorities  [21]
Result  [28]

Introduction

[1]        Mr Keenan was found guilty following trial by jury in the High Court at Auckland on one charge of having a Class A controlled drug, methamphetamine, in his possession for the purpose of supply.

[2]        On 8 October 2004, the trial Judge, Gendall J, sentenced Mr Keenan to five years imprisonment and ordered the forfeiture of $1,770 found in Mr Keenan’s bag, together with quantities of methamphetamine and associated scales.

[3]        The appeal, as lodged, was against conviction and sentence.  The appeal against conviction was not pursued before us today.  It is dismissed.

The facts

[4]        On the evening of 25 March 2004 Mr Keenan was driving a motor vehicle in Te Atatu.  The vehicle was stopped on account of excessive speed. 

[5]        Mr Keenan gave a false name.  Enquiries were made on the spot to try and get matching details.  On the pretext of getting some identification from the trunk of the car, Mr Keenan grabbed a backpack, then ran off on foot through neighbouring properties.

[6]        Mr Keenan was located a short time later.  He was arrested.  When searched the police located on him two plastic bags containing methamphetamine.  This methamphetamine weighed in total 13.5 grams.  According to the NDIB the latest prices for pure methamphetamine range from $700 to $1,200 for a gram.  The amount located on the accused therefore had a street value of between $9,450 and $16,200.

[7]        The accused was also found to be in possession of a small set of scales and $1,770 in cash, made up mostly of $20 notes.

[8]        When spoken to, Mr Keenan said that he had six grams of methamphetamine that he bought for his own use for $6,000.  He said he had a bad drug problem.

Mr Keenan’s personal circumstances

[9]        At the time of the offence Mr Keenan was 38 years old.  He was no stranger to the criminal justice system.  He had numerous prior convictions.  These included one for aggravated robbery in September of 1996 which resulted in Mr Keenan being sentenced to four and a half years imprisonment.  He had firearms convictions; drug convictions including possession of LSD; and some serious driving convictions.

[10]      The offending in this case occurred after Mr Keenan was released from prison.  He had served two thirds of his sentence on the aggravated robbery, but he was still subject to recall with respect to the remaining one third of that sentence.

The High Court sentencing

[11]      Gendall J identified the following aggravating features of this offending: 

·     a poor criminal record;

·     substantial prison terms have not deterred Mr Keenan from offending;

·     the fact that a Class A drug was involved;

·     this offending was while on “parole” from the aggravated robbery.  (This was a loose expression for Mr Keenan being subject to recall to prison.)

[12]      The Judge noted by way of “mitigation” that Mr Keenan “is an addict”.  But as the Judge rightly said, that “is a common feature in many serious drug crimes”.

[13]      Gendall J noted a number of High Court authorities which had adopted five to six-year starting points with respect to offences in this subject area. 

[14]      The Judge referred to the addictive effects of methamphetamine and the social and personal problems that flow from it.

[15]      The Judge considered that a term of six and a half years imprisonment could well have been adopted.  He noted that Mr Keenan had in fact been recalled to prison in respect of his effective sentence of ten years imprisonment in relation to the aggravated robbery and associated matters.  This may have influenced the Judge’s decision to ameliorate the sentence on the matter before him, “perhaps for no other reason than to be merciful”.

Discussion

Introduction

[16]      Mr Comeskey’s submissions can conveniently be grouped under two heads.  First, he complained about the way the Judge had handled “the facts” on the sentencing.  Secondly, whether for sentencing purposes this case is approached in terms of R v Wallaceand Christie [1999] 3 NZLR 159 or the more recent decision of this Court in R v Arthur (2005) 21 CRNZ 453, he suggested that the wrong starting point had been adopted, thereby producing a sentence which was manifestly excessive.

The facts

[17]      Mr Comeskey complained that it was not open to the Judge in this case to have found that “the overwhelming inference I draw from all the facts is that you were in the business of selling this Class A drug.  You may not have been alone and had others behind you, but you were a dealer”.  (Emphasis added.)

[18]      There is one point we can clear away at the outset, and on which we agree with Mr Comeskey.  To the extent that the Judge found that Mr Keenan had “sold” the drug, he went too far.  That would have been a matter for a jury finding, on an appropriate charge.

[19]      However, to the extent that the Judge found, as he did, that Mr Keenan had possession for “commercial purposes” that finding was entirely open to the trial Judge.  The Judge had available to him the significant primary facts – established at trial – that Mr Keenan had in his possession methamphetamine worth between $11,000 and $16,000; he had $1,770 in cash in his possession in small notes, and he had the appropriate electronic scales for weighing out methamphetamine into point or one-tenth of a gram quantities, that being the usual method of trade.  And the Judge – who for sentencing purposes is required to find the relevant facts – had also heard at trial Mr Keenan’s somewhat unconvincing explanation for how he had come by the money:  he said he had received $2,500 in cash from his parents.  This was distinctly at variance with what he told the police when apprehended:  that he had received the cash “by gambling”.

[20]      It was entirely open to the sentencing Judge to draw the inference that the drugs, money, and accoutrements had a commercial purpose.  It has not been demonstrated that the Judge was plainly wrong in that respect.

The sentencing authorities

[21]      At the time that Gendall J sentenced Mr Keenan the leading decision was still R v Wallaceand Christie [1999] 3 NZLR 159. However, in that case this Court was dealing with methamphetamine as a Class B controlled drug. Subsequently, this drug was reclassified as a Class A drug. In R v Arthur (2005) 21 CRNZ 453 this Court reviewed the sentencing tariffs for drug dealing in light of that reclassification.

[22]      Gendall J reviewed a number of High Court authorities where sentences ranging from five to six and a half years had been imposed when the drug was classified as Class B.  In fairness to Mr Keenan, it is correct that most of those cases involved “manufacture”, as opposed to possession.  However even allowing for that factor, and given the aggravating factors in this case, the Judge reached a starting point of six and a half years imprisonment. 

[23]      We have to say that the course the Judge then adopted was unusual.  He said, “I am prepared to ameliorate that sentence perhaps for no other reason than to be merciful”.  He reduced the six and a half years to five years, expressing the view “that will give you some light at the end of the tunnel and may assist your rehabilitation”.

[24]      We do not accept Mr Comeskey’s argument that, if seen in the light of Wallace and Christie, this sentence was manifestly excessive.  Even under that regime, the sentence actually imposed was distinctly favourable to Mr Keenan.  In the High Court the Crown had classified the offending as within the third and least serious category as identified in Wallace and Christie.  That entailed a starting point of up to five years, which would require an increase to recognise the need for deterrence evidenced by the appellant’s record. 

[25]      R v Arthur might assist the appellant and it is therefore appropriate to consider it.  If the case is considered in terms of R v Arthur, it is squarely within the second category:  that of a commercial quantity of five to 250 grams, which will attract a starting point of three to nine years imprisonment. 

[26]      Mr Comeskey strove to persuade us that in terms of R v Arthur the starting point could not have been more than three years (at most), and should be seen as having involved a relatively minor amount of methamphetamine.  We reject that proposition.  The quantity was still significant in terms of R v Arthur.  It has not been shown that the Judge was plainly wrong to have treated the relevant quantity as being within the commercial category suggested in R v Arthur. 

[27]      To the extent that we necessarily have to approach the application of R v Arthur to this case anew – it had not been decided at the time of the sentencing – we would have thought that the appropriate starting point on the Arthur scale would be four years imprisonment.  But to that has to be added, in an entirely orthodox fashion, the aggravating factors in this case, which were themselves very significant.  There were no mitigating factors.  The aggravating features would easily take this case up to the five year sentence which the Judge actually imposed.

Result

[28]      The sentence appeal is entirely without merit.  Mr Keenan could consider himself fortunate with respect to the sentence actually imposed.  The sentence appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland