R v Keenan - [2019] NZHC 3339

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-31

[2019] NZHC 3339

THE QUEEN

v

SHAUN JOSEPH KEENAN

Hearing: 16 December 2019

Counsel:

J Marinovich for Crown

S W Hughes QC for Appellant

Judgment:

16 December 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]The appellant, Shaun Joseph Keenan, pleaded guilty to the following:

(a)six charges of forgery;1

(b)36 charges of theft by person in a special relationship;2 and

(c)four charges of obtaining by deception.3

1      Crimes Act 1961, s 256(1); maximum penalty of 10 years’ imprisonment.
2      Sections 220(1)-(2) and 223(a); maximum penalty of seven years’ imprisonment.
3      Sections 240(1) and 241(a); maximum penalty of seven years’ imprisonment.

R v KEENAN [2019] NZHC 3339 [16 December 2019]

[2] On 20 August 2019, Mr Keenan was sentenced by Judge Barkle in the New Plymouth District Court to three years eight months’ imprisonment, with a minimum period of imprisonment (MPI) of 50 per cent.4 He was also ordered to pay reparation of $75,000.

[3] Mr Keenan appeals the imposition of the MPI on the grounds that the Judge, in using his discretion to impose an MPI, failed to give any or adequate weight to:

(a)his remorse;

(b)his status as a first offender;

(c)his desire to attend a restorative justice conference;

(d)the apology delivered as part of sentencing; and

(e)the hardship prison will be for him given his previous occupation as a police officer.

[4] The respondent opposes the appeal, arguing that the MPI was appropriate and justified.

Factual background

[5] In 2012, Mr Keenan, who is a member of the Ngāti Te Whiti hapū, was appointed by the Ngāti Te Whiti Whenua Topu Trust (the Trust) board as the project manager for their marae development. Prior to his appointment, he had been a police officer. He was then appointed as the Trust’s first chief executive officer (CEO) in 2014.

[6] As part of his role as CEO, Mr Keenan had access to Trust bank accounts and the ability to authorise payments. He was also responsible for reporting to the Trust board and making sure the financial interests of the Trust were being correctly managed.

4 R v Keenan [2019] NZDC 16310.

[7] In 2016, members of the Trust board became concerned with the finances of the Trust and the lack of progress with a major project involving the building of a marae. Concerns were also raised regarding the lack of audited accounts since the 2013-2014 financial year.

[8] The Trust terminated Mr Keenan’s employment with immediate effect on 19 December 2016 and it was subsequently established that numerous large and unaccounted deposits had been made directly into Mr Keenan’s business account.

[9]A forensic accountant concluded that Mr Keenan had misappropriated

$486,045.71.

[10] Mr Keenan was also found to have taken funds of approximately $24,000 from another entity, forging signatures in order to do so. This offending occurred after his employment with the Trust was terminated.

District Court decision

[11] In setting the…

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 R v Keenan

Details

AGLC: R v Keenan [2019] NZHC 3339
Case: [2019] NZHC 3339
Decision Date: 16 December 2019

CaseChat Overview and Summary

Shaun Joseph Keenan appeals his sentence for forgery, theft, and obtaining by deception, arguing the imposition of a minimum period of imprisonment (MPI) was inappropriate. The Crown opposes the appeal, asserting the sentence was justified. The sentencing judge considered various aggravating and mitigating factors before imposing a sentence of three years and eight months, with an MPI of 50 per cent. The appeal hinges on whether the sentencing judge erred in imposing an MPI. Keenan's counsel argued that the appellant had been a long-serving police officer with no previous convictions, and imprisonment would be challenging. However, the court found that the appellant's actions had caused immeasurable harm, particularly because the stolen funds were part of a settlement with the Crown for historical wrongs. The court also found that the appellant had shown little evidence of genuine remorse or willingness to make reparation. The appeal court upheld the imposition of an MPI, concluding that the sentence imposed without an MPI was insufficient for the purposes of denouncing the appellant's conduct and holding him accountable. The appeal against sentence is dismissed.

Orders