Keshwan v The Queen
[2012] NZCA 171
•7 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA808/2011 [2012] NZCA 171 |
| BETWEEN KRISHAN KESHWAN |
| AND THE QUEEN |
| Hearing: 27 February 2012 |
| Court: Hammond, Priestley and Allan JJ |
| Counsel: B J Hart for Appellant |
| Judgment: 7 May 2012 at 10 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of two years ten months imprisonment for robbery imposed in the District Court is quashed.
CWe substitute a sentence of two years three months imprisonment on that charge.
DThe concurrent sentences imposed in the District Court will stand.
REASONS OF THE COURT
(Given by Allan J)
Mr Keshwan appeals against a sentence of two years ten months imprisonment imposed upon him on 10 November 2011 in the Auckland District Court by Judge David Harvey.[1] The appellant had pleaded guilty to one count of robbery, three counts of theft, and one count of dangerous driving. The Judge imposed a sentence of two years ten months imprisonment on the robbery charge, and concurrent sentences of one months imprisonment on the remaining charges. He was also disqualified from holding or obtaining any motor vehicle driver’s licence for six months on the dangerous driving charge.
[1] R v Keshwan DC Auckland CRI-2009-004-1153, 10 November 2011.
The principal ground of appeal is that insufficient attention was given at sentencing to the appellant’s mental state, and in particular to his on-going problems with depression. That is perhaps hardly surprising given that the issue received very little, if any, attention in counsel’s submissions to the District Court. Moreover, there is only limited reference to depression in the pre-sentence report.
Mr Hart submits that the overall sentence was in any event manifestly excessive, that an end sentence of two years imprisonment or less was appropriate, and that a sentence of home detention ought to have been imposed in substitution for a full time custodial penalty.
Factual background
The robbery occurred at about midday on 24 December 2008. Mr Keshwan drove to the Kiwibank Post Shop in Mt Roskill and approached the lone teller with his hands in the pockets of his hooded sweatshirt. Earlier that day, he had entered two other banks but had lost his resolve. In the Post Shop, the appellant passed a note to the teller on a National Bank deposit slip which he had previously obtained that morning. The note read “Give me all the money or I will shoot”. The appellant carried no weapon.
In consequence, the teller handed Mr Keshwan $726 with which he left the bank. He was seen to drive off in a Toyota Hiace van, but was located and interviewed later in the day. Initially he denied the offence, but later accepted responsibility.
The dangerous driving incident occurred about eight months later when Mr Keshwan was on bail. At about 10 am on 22 August 2009, when driving in Onehunga, he became involved in an altercation with another driver, following which he drove at about 100 kph through an intersection controlled by stop signs and collided with a motor vehicle travelling across his path.
On 10 March 2010, the first of the three incidents of theft occurred. Mr Keshwan was employed through Student Job Search as a cleaner at a private residence in Onehunga. When left alone at the address he stole a set of golf clubs valued at $800 from the garage. He sold the clubs for $100.
On the same afternoon, the owner of the residence phoned the appellant and asked him to check that the garage was locked as it contained expensive bicycles. Instead, the appellant took one of the bicycles, valued at $8,500, and later sold it for $600.
Finally, on 25 August 2010, the appellant filled his vehicle with petrol to the value of $67.92 at an Auckland petrol station and drove away without paying.
District Court sentencing
The Judge considered two decisions of this Court, including R v Mako, and two sentencing decisions in the High Court.[2] He regarded Smeed v Police as providing the closest analogue.[3] He considered that the offending involved a degree of premeditation, and noted the explicit threat to the teller, each of which he believed to be aggravating factors. From a starting point of three years imprisonment, he imposed an uplift of six months in order to reflect the fact that all of the offending, other than the robbery, occurred while the appellant was on bail. He allowed a credit of 10 per cent for the guilty plea, so reducing the sentence to 37 months. A further discount of three months was allowed in order to take into account the appellant’s previous good character. That produced a sentence of 34 months imprisonment.
New material
[2] R v Mako [2000] 2 NZLR 170 (CA); R v McGregor [2007] NZCA 365; Cassidy v Police HC
Hamilton AP79/01, 18 October 2011; and Smeed v Police HC Whangarei AP50/00, 24 October 2000.
[3] Smeed v Police HC Whangarei AP50/00, 24 October 2000.
In this Court, Mr Hart has tendered a report by Dr Greig McCormick, a forensic psychiatrist, dated 21 December 2011, more than a month after sentencing in the District Court. The Court has jurisdiction to admit the report.[4] But Ms Jelas submits that the Court ought not to do so. She argues that the pre-sentence report that was before the sentencing Judge contained some reference to a depression problem, and so the material in Dr McCormick’s report is not entirely new. Moreover, she argues, there was ample opportunity for the report to be prepared and furnished to the Court prior to sentencing in the District Court. She argues that the appellant has not met the onus of proof that the evidence is new and was not available at trial, and refers the Court to authorities such as R v Bain,[5] and R v Greer.[6] However, those were appeals against conviction, in which the respective appellants sought to adduce evidence which could arguably have been placed before the jury.
[4] Crimes Act 1961, s 389(a).
[5] R v Bain [2004] 1 NZLR 638 (CA).
[6] R v Greer CA38/03, 8 March 2004 at [17].
Appeals against sentence require a somewhat different approach. Where, as here, the new material is tendered for the purpose of supporting a sentencing argument of diminished culpability,[7] the overriding consideration will be the interests of justice.
[7] Sentencing Act 2002, s 9(2)(e).
Ms Jelas submits that “there is no overwhelming need in the interests of justice” to receive the report, but we think that approach sets the bar too high. Dr McCormick’s report is of considerable assistance; it may, we think, have led to a different outcome in the District Court, had it been available to the sentencing Judge. This Court admitted a similar report on an appeal against sentence in Skelton v R.[8] We do likewise.
[8] Skelton v R [2011] NZCA 35.
Having said that, it should not be assumed that appellants may, as a matter of routine, tender supporting materials that could and should have been made available to the sentencing Judge. Appeals against sentence are not to be treated simply as opportunities for placing before the Court material that could, and should, have been tendered to the sentencing Judge.[9]
Appeal grounds
[9] Kaio v R [2012] NZCA 168.
Mr Hart submits that the appellant’s mental condition ought to have been recognised in the following manner:
(a)The starting point ought to have been lower to reflect the strong likelihood that the appellant’s depression was the root cause of his offending.
(b)For similar reasons, the uplift for the offending that occurred while Mr Keshwan was on bail was too high.
(c)The appellant should have received greater credit for his guilty plea.
Dr McCormick’s report
Mr Keshwan is 23 years old. He came to New Zealand from Fiji in 2007 in order to study engineering at the Manukau Institute of Technology. Although his fees and living expenses were paid by his parents in Fiji for his first year in New Zealand, he was thereafter obliged to support himself by taking a variety of part-time jobs. He came under increased financial pressure when his father arrived in New Zealand to live in 2008 without immediate employment. He also had to make some contributions towards expenses incurred by an uncle. At the time of the robbery, the appellant was under significant pressure from his father to provide a sum of money in order to meet these expenses.
Mr Keshwan has taken medical advice for anxiety and depression. Dr McCormick records that:
In March 2010 Mr Keshwan presented to a general practitioner in Avondale complaining of being stressed, anxious and depressed. He was prescribed amitriptyline 10mg nocte. Amitriptyline is a standard tricyclic anti-depressant which, to be effective as an anti-depressant, needs to be prescribed in doses of between 75-150mg daily. Mr Keshwan continued to take this medication for the rest of 2010 but he did not present regularly to his general practitioner for monitoring or follow up. Mr Keshwan was referred to a counsellor who he saw on a single occasion. Mr Keshwan did not disclose to either his general practitioner or his counsellor his offending history.
Dr McCormick saw Mr Keshwan at Auckland Prison on 16 December 2011, when he undertook an extensive interview with the appellant. The doctor considers that the offending can be explained (although not of course excused), in large measure by reference to the financial and personal pressures to which the appellant was subject at the time of the offending, coupled with his depressive symptoms. Dr McCormick said:
Depression is a symptom and not a diagnosis. To make a diagnosis of clinical depression a person needs to describe a history of low mood and accompanying symptoms of “physical depression” in that as a person becomes clinically depressed it appears that their body, as well as their thinking, “grinds down” or becomes depressed. There are no medical records spanning this period but Mr Keshwan has given me an internally consistent account of being depressed through 2008 (low mood, feelings of hopelessness and worthlessness, sleep disturbance, loss of appetite, decreased levels of energy, drive, motivation and libido). In my opinion, if I had seen Mr Keshwan in 2008, I would have commenced him on treatment with an adequate dose of an anti-depressant.
…
In relation to his lead offending Mr Keshwan describes being in a situation where he did not otherwise know what to do. I consider that by that time Mr Keshwan was clinically depressed and it is more likely than not that Mr Keshwan’s offending was influenced by depression based on poor judgement.
Discounts for lower moral culpability
Mr Hart submits that the appellant’s depression lay at the heart of his offending, and that his diminished moral culpability ought to be reflected in the ultimate sentencing outcome. He refers to E v R, where this Court noted that a mental impairment falling short of exculpating insanity may be capable of mitigating a sentence, either because:[10]
(a)if causative of the offending, it moderates the culpability;
(b)it renders less appropriate or more subjectively punitive a sentence of imprisonment; or
(c)a combination of those reasons.
[10] E v R [2011] NZCA 13 at [68].
Of course, to qualify for consideration the mental impairment must be causative of the offending.[11] If it was, then the Court will need to consider whether the impairment increases the risk of further offending, so attracting the need to consider personal deterrence or public protection.[12]
[11] R v M [2008] NZCA 148 at [33].
[12] E v R [2011] NZCA 13 at [69].
Ms Jelas for the respondent responsibly accepts that the impairment in the present case was causative of the lead offending and occurred prior to the commencement of treatment to which the appellant is now subject. But she points out that the later offending occurred while the appellant was receiving treatment, so demonstrating that the management of his illness was not entirely satisfactory.
In E v R, this Court accepted that a discount of between 20 and 25 per cent might be appropriate where the appellant was at the time of the offending labouring under a major depressive disorder. Ms Jelas distinguishes that case from this one however, on the basis that the degree of clinical depression apparently present in the instant case is not as serious as in E v R. In R v Tuia, this Court noted that the question of moral culpability is to be measured against the degree of mental incapacity arising from the relevant disorder.[13] It is necessary to distinguish moral culpability on mental health grounds from other personal mitigating factors.[14]
[13] R v Tuia CA312/02, 27 November 2002 at [15].
[14]See also R v Rikihana [2010] NZCA 405 at [34] where this Court counselled caution concerning the ready acceptance of psychiatric or behavioural disorder arguments.
Hence in R v Pene, this Court identified separate personal mitigating factors, including clinical depression, other health problems and pregnancy.[15] In that case involving homicide arising from the death of a foster child, the Court confirmed a discount of 20 per cent for the totality of personal mitigating factors.
[15] R v Pene [2010] NZCA 387.
Likewise in R v Edwards, the Court emphasised the need to distinguish between personal factors, only some of which were truly mitigating. There, a sentencing Judge’s discount of 12 per cent was regarded by this Court as at the low end of the range.[16]
Discussion
[16] R v Edwards [2007] NZCA 382 at [25].
Mr Hart does not challenge the three year starting point chosen by the Judge. He accepts that it is within the available range, having regard to the guidance offered in R v Mako. But he says that the uplift of six months for offending whilst on bail was too high. His argument is that the uplift insufficiently recognises the mental problems under which Mr Keshwan was suffering at the time of the offending.
There is some force in that submission. Although by the time of the later offending the appellant was under medical management and was receiving medication, his supervision appears to have been sporadic. We accept therefore that the appellant’s medical condition played some part in all of the offending. But we consider that the depression from which the appellant was suffering was not severe, and that any allowance would need to be modest.
Moreover, as Ms Jelas reminds us, totality principles were engaged. The sentencing Judge was entitled to impose an uplift that reflected the whole of the offending, given that the ultimate sentences were to be imposed concurrently. Ms Jelas submits that the uplift of six months imprisonment, while towards the upper end of the available scale, was open to the Judge. We think that, although there had to be some recognition of the later offending for totality purposes, little if anything ought to have been added by way of uplift for the offending whilst on bail, having regard to the appellant’s health problems. In our view, the uplift ought to have been no more than four months.
That produces a sentence, prior to any discount for mitigating factors, of three years and four months, or 40 months.
The next question is the extent of the discount for the appellant’s depressive illness. Dr McCormick says that the appellant’s depressive condition, coupled with significant family demands for money just prior to Christmas 2008, resulted in the appellant being in a desperate state. The decision to rob a bank was impulsive, in that it was conceived on the day of the robbery itself. Moreover, there was little by way of preparation. Mr Keshwan was not disguised and wore no gloves; he did not carry a weapon.
Having carefully considered the report and relevant earlier decisions of this Court, we conclude that a discount of 15 per cent was warranted. Ms Jelas accepts that a discount of that order is appropriate. That reduces the sentence to 34 months imprisonment. The Judge allowed a further discount of three months because the appellant had no record of prior offending. We do likewise. That reduces the sentence further to 31 months imprisonment.
Finally, we come to the question of discount for the guilty plea. There was never any question that the appellant proposed to defend the Crown case. However, there were very long delays which obliged the Crown to commit significant resources to preparation for trial. Several trial dates were set. The appellant acknowledges that his strategy for dealing with his difficulties was to ignore them. The result was that he did not face up to his problems. A guilty plea was entered on 2 December 2010, but there was a further delay of about a year because the authorities were unable to make contact with those persons who had a part to play in the preparation of a home detention appendix. Ultimately, on 1 November 2011, the appellant refused to consent to an electronically-monitored sentence.
We are satisfied that there is true contrition here, and that although the guilty plea must be taken to have been entered close to the commencement of the trial, nevertheless a discount of 10 per cent is appropriate. We therefore allow a further four months. The result is a final sentence of two years three months imprisonment.
Although we have departed from Judge Harvey’s sentence, we do so not on the basis of sentencing error, but because we have had the advantage of a helpful medical report that was not before the Judge.
Result
The appeal is allowed. We quash the sentence of two years ten months imposed in the District Court and substitute a sentence of two years three months imprisonment on the lead charge of robbery. We do not disturb the concurrent sentences. In the result, the question of home detention does not arise.
Solicitors:
Crown Law Office, Auckland for Respondent
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