R v Keenan
[2019] NZHC 3339
•16 December 2019
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 start point, the Judge identified six aggravating factors to the offending:5
(a)the large and significant amount stolen;
(b)the timeframe over which the offending occurred;
(c)the fact that the offending continued after his employment was terminated;
(d)the offending was planned, premeditated and continued when he was well aware of its criminality;
(e)the offending involved a gross breach of trust; and
(f)the harm caused to approximately 1800 registered hapū members.
5 R v Keenan, above n 4, at [19].
[12] As to mitigating factors, the Judge acknowledged that Mr Keenan had been prepared to attend a restorative justice conference and had provided an apology to those attending his sentencing hearing.6 However, it was noted that Mr Keenan had made no effort to make payment of reparation, despite having advised board members when first confronted with his offending that he would do so.7 Mr Keenan had also transferred his share of relationship property assets to his wife which the Judge found impacted on the sincerity of his remorse and true willingness to put matters right.8 Furthermore, the pre-sentence report writer had noted that Mr Keenan failed to express any remorse for his offending and took limited responsibility for his offending, focusing rather on the impact of his actions on himself and his immediate family. The Judge determined that genuine remorse and true recognition of the harm he had caused was limited.9
[13] In terms of good character, the Judge stated that he had read closely Mr Keenan’s references, and recognised that he was well thought of and retained the support of his immediate family and the Stratford community. He also acknowledged his lack of previous convictions. However, he referenced appellate authority to the effect that, given the nature and prolonged period of Mr Keenan’s offending, there should be no discount for previous good character and lack of offending history.10
[14] The Judge observed that incarceration would be particularly difficult for Mr Keenan, given his years as a police officer, and that the Court of Appeal had held that discounts had been available in the past for defendants whose occupations involved service to the community.11 However, he remained aware that it was Mr Keenan’s career in the police that had partly enabled him to gain trust and offend in the manner he had.12
6 At [24].
7 At [25].
8 At [26].
9 At [27].
10 At [28]-[29]; citing McGregor v R [2015] NZCA 565, R v Prescott CA360/00, 1 November 2000 and King v R [2015] NZCA 475.
11 At [30]-[31]; citing B v R [2019] NZCA 18 and R v McSweeney [2007] NZCA 147.
12 At [32].
[15] Finally, the Judge took the s 27 cultural report into account, noting that Mr Keenan had been raised during a time when there was active discouragement of living in the Te Ao Māori lifestyle and that he had, in the last 20 years, been exposed to his cultural heritage and had embraced opportunities to absorb and grow his cultural understanding.13 The Judge found:
[36] Personal, family, whanau, community and cultural background including systemic disadvantage can be relevant as a factor mitigating culpability but there must be a linkage between the matters raised in the cultural report and the offending. The report of Mr Nicholls, in my view, does not establish your offending conduct was attributable to systemic social deprivation experienced by Māori or by you personally.
[16] Taking those factors into account, the starting point of five and a half years’ imprisonment was reduced by 12.5 per cent to four years 10 months’ imprisonment. After a full 25 per cent discount was provided for guilty plea, the Judge arrived at an end sentence of three years eight months.
[17]The final matter to be considered was the 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 premeditated 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 whānau 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.
Approach to appeal
[18] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed
13 At [33]-[34].
and a different sentence should have been imposed.14 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.15
Discussion
[19] Section 86 of the Sentencing Act 2002 (the Act) provides for the imposition of an MPI:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
(3)[Repealed]
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a)two-thirds of the full term of the sentence; or
(b)10 years.
(5)For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under this section is a sentence.
14 Tutakangahau v R [2014] NZCA 279.
15 Ripia v R [2011] NZCA 101 at [15].
[20] In R v Brown, the Court of Appeal explained that when an MPI is under consideration, the Judge must carry out a two-stage process.16 The first stage is to fix the maximum length of the sentence, while the second is to consider separately whether the offending itself is sufficiently serious that serving the normal minimum period of one-third of the sentence will be insufficient to meet one or more of the four specified purposes in subsection (2).
[21] In addressing the four purposes of s 86, counsel for Mr Keenan, Susan Hughes QC, first notes that Mr Keenan had been a long serving member of the New Zealand Police, with no convictions and, as the many references provided to the Judge established, had lived a good and purposeful life, making significant contributions to the community. She submitted that at no time had Mr Keenan sought name suppression and that, coupled with the fact that imprisonment as a former police officer would be a greater challenge for him than for others, meant that he was held accountable by virtue of the term of imprisonment imposed.
[22] As for denunciation, Ms Hughes submits that comparing this sentence to others who appear before the Court, provides no significant differentiation or justification for a belief that more than a term of imprisonment was required to denounce Mr Keenan’s conduct. The term of imprisonment imposed is said to make plain society’s denunciation of his conduct.
[23] In dealing with the final two purposes of s 86, Ms Hughes submits that Mr Keenan did not need any deterrent from further offending, nor does the community need protecting from him.
[24] Finally, Ms Hughes points out that, if the Court accepts there was no principled basis for the imposition of an MPI on Mr Keenan, that would not be the end of the road for him as appearing before the Parole Board does not guarantee release from prison. If there is any perception that Mr Keenan remains a risk, then he can realistically expect that he will not be released.
16 R v Brown [2002] 3 NZLR 670 at [35].
[25] When questioned about this, Ms Hughes acknowledged that that proposition was not an absolute one. Indeed, in all cases, a prisoner who is in the position of Mr Keenan will need to go before the Parole Board before being released.
[26] In conclusion, Ms Hughes submits that, in this case, the Judge adopted a mechanistic approach to the question of non-parole. She says there was nothing extraordinary in this offending that would take it out of the realm of other comparable offending and, therefore, the Court is asked to delete the obligation for an MPI.
[27] For the respondent, Mr Marinovich argues that the Judge correctly approached the question of whether the MPI was justified, firstly setting the nominal end sentence and secondly, considering the issue of a minimum period, in accordance with R v Brown. He submitted that he did not approach the issue in a mechanistic way, nor did he simply pay lip service to the factors under s 86(2). Although the discussion of an MPI was largely confined to [47]-[48] of the sentencing notes, the Judge had given consideration to both the aggravating and mitigating factors in relation to the offending and the offender.
Analysis
[28] The sole issue in this appeal is whether or not Judge Barkle was wrong to impose a 50 per cent of an MPI. The circumstances in which an MPI can be imposed were recently considered by the Court of Appeal in Blackler v R.17
[29] In that case, the sentencing Judge’s explanation for imposing the minimum non-parole period consisted of saying:18
I agree that in order to meet the purposes of sentencing which I outlined at the start, that is, deterrence, denunciation, holding you accountable for the harm done and protecting the community, a minimum period of imprisonment should be imposed and I consider a minimum period which represents half of your sentence, would be appropriate.
[30] In that case, counsel before the Court of Appeal, submitted that there was nothing in the circumstances which took it out of the ordinary for its kind. The Court
17 Blackler v R [2019] NZCA 232.
18 R v Blackler [2018] NZHC 830 at [38].
of Appeal indicated that a greater level of analysis of the need for an MPI was required. It said:19
We accept that the Judge ought to have provided reasons for the conclusory statement quoted above. As this Court has emphasised in other cases, minimum periods of imprisonment should not be imposed as a matter of routine or in a mechanistic way. It is not sufficient to simply recite the statutory provisions. A reasoned analysis is required.
[31] The Court of Appeal made it clear that not all four of the criteria set out in s 86 need to be present in order to justify the imposition of an MPI. They acknowledged that there were no reasons relating to public protection or deterrence that justified an MPI in that case. However, they concluded that the sentence imposed without an MPI, was:20
… insufficient for the purposes of denouncing Mr Blackler’s conduct and holding him accountable, because it is insufficient recognition of the enormity of the consequences of his offending and the degree of callousness involved.
[32]The Court upheld an MPI of 50 per cent of the sentence.
[33] Ms Hughes submits that an MPI is not necessary to hold the appellant accountable submitting that “he had lived a good and purposeful life and made significant contributions to the community.” As I have already noted, she further submits that it is relevant that he did not seek name suppression and that imprisonment would be a greater challenge because of his prior occupation. There do not seem to have been any grounds upon which the appellant could have obtained name suppression had he applied for it. Therefore, I attach no weight to the fact he did not make such an application. However, I do accept that, as part of being held accountable, imprisonment will be challenging for the appellant even without an MPI.
[34]In relation to deterrence, Ms Hughes submits that:
Mr Keenan does not need any deterrent from further offending. He has … suffered an epic fall from grace, he is sentenced to a substantial period of imprisonment, and is at a distance from his family knowing full well, the harm that he has caused.
19 Blackler v R, above n 17, at [38] (citation omitted).
20 At [39] (citation omitted).
[35] The submission that the appellant is fully aware of the harm that he has caused needs examining, as does the related submission of Ms Hughes that the appellant’s actions had not caused immeasurable harm. Under this head, she submits that: “The number of victims reflects membership of the hapū and can be compared to shareholders or workmates adversely affected by dishonesty.” She also submits that it needs to be remembered that Mr Keenan offered to attend a restorative justice conference and that “he has actively sought to apologise”.
[36] Judge Barkle discerned little evidence of remorse or acknowledgement of the impact of the appellant’s actions on his victims. At [25], he noted there had been no effort to pay reparation despite the appellant initially advising the victims that he would do so. At [26], he noted that the appellant had transferred his share of relationship property to his wife rather than use it to repay his victims. And at [27], he referred to the observations of the pre-sentence report writer who noted that the appellant’s failure to express remorse, his lack of acknowledgement of the impact on his victims, and his limited taking of responsibility.
[37] I do not accept the analogy drawn by counsel that this situation can be compared to the situation of shareholders in a company or workmates affected by dishonesty. Neither do I accept the submission that Judge Barkle had conflated this offending with the wrongs historically done to Ngāti Te Whiti.
[38] In this case, the nature of the funds stolen is an important factor in assessing the harm caused to victims.
[39] The funds stolen represent the part of the proceeds of settlement of the iwi’s historical claim against the Crown. The settlement fund is specifically designed to ameliorate the profound effects on the iwi of the wrongs done to them over the years which have caused so many social problems for the members of the iwi. The fellow employee of a company who loses his employment as a result of his colleague’s dishonesty has the opportunity of going and getting another job. The iwi does not have the opportunity of going back to the Crown and asking for another $486,045.71 because the appellant stole that sum from them.
[40] Many of those who provided victim impact statements talked about the consequence of the appellant’s dishonesty being that the marae which they had hoped to build, utilising the stolen funds, would not now be built. The loss, at least for the immediate future, of this aspiration, was deeply distressing. One victim who provided an impact statement talked of the appellant having stolen the dreams and aspirations of Ngāti Te Whiti.
[41] As I commented to counsel, some of the language used in the victim impact statements was emotive and the Court disregards the emotive aspect of those statements. However, many of the statements contained factual accounts of the effects on the individual iwi members of the defalcation in this case. They are matters which the Court is entitled to have regard to.
[42] Other victims described the significant loss of mana and reputational damage done to the iwi and its members as a result of the appellant’s dishonesty. They talked of the betrayal of their trust and the compounding effect of this because it was one of their own whānau and hapū who had betrayed them.
[43] Ms Hughes’ submission on this point was that this is a similar situation to that of an employer or a company who employed a dishonest person finds themselves in where there is theft of this nature by an employee. I consider that analysis too simplistic and believe that there are relevant issues relating to loss of mana and reputational damage which distinguish the facts in this case from those which do not include such factors.
[44] Having read the various victim impact statements, I am satisfied that it is no exaggeration to say that the appellant’s actions have caused the victims immeasurable harm.
[45] I turn now to whether there was limited evidence of genuine remorse on the part of the appellant as Judge Barkle found, or whether that finding is undermined by the appellant’s offer to attend a restorative justice conference, and the oral apology he made in Court as it has been urged upon me by Ms Hughes.
[46] The absence of remorse and a failure to pay reparation have been held to be matters relevant to whether or not an MPI should be imposed.21
[47] Here, the appellant has made a number of promises to pay reparation starting on 6 May 2017 and continuing right up until sentencing on 20 August 2019.
[48] The summary of facts before the District Court records that on 6 May 2017, the appellant met with the members of the Trust Board, he acknowledged misappropriating money from the Trust and signed a written agreement agreeing to repay the sum of $335,000 in full to the Trust by 31 May 2017. At this stage, the Trust had not been to the police and the total amount of the dishonesty was erroneously believed to only involve $335,000. The case advanced by counsel for the appellant at sentencing was predicated on the basis that the appellant was going to pay reparation and the material from the appellant’s wife even went as far as detailing how this might occur.
[49] However, notwithstanding these various promises and representations made over a period of more than two years, the appellant has paid nothing. The appellant had assets that he could have sold to provide funds to go towards reparation. His principal asset seems to be a property he owned at Stratford with his wife. It was described in the pre-sentence report as having a land area of 4,422 m2 and, although the sentencing Court did not have a valuation of the property, or any indication of the equity in it, there were some indication in the material provided in the victim impact statements that the house was new and had significant value.
[50] The Court has been provided with further relevant information at the Hearing of this appeal. From the Bar, Ms Hughes assured the Court that the house was completed prior to the five-year period in which the dishonesty offences began.
[51] I will shortly address the issue of the relationship property agreement that the parties entered into, but that document expressed a value which had been attached to the property, and also gave some indication of the equity that the parties had in the
21 Mears v R [2014] NZCA 30 at [17].
property. The value was said to be $585,000 and the agreement recorded that the equity in the property was $154,513.
[52] There was no evidence that at the time of sentencing the appellant that the Court had available to it, a copy of the relationship property agreement. At my request, the appeal was briefly adjourned to allow Ms Hughes to go and obtain a copy of the agreement and provide it to the Court.
[53] I have had the opportunity of reviewing that document. It has a number of unusual features. I have also had the opportunity of reviewing what the appellant’s wife said at the time of the District Court hearing about the motivation for entering into this agreement. She said:
We have sought financial advice from a financial advisor over the past two years. The advisor supported my decision to withdraw almost all my superannuation savings to repay Shaun’s debt. I later sought legal advice and we entered into a property relationship agreement in May 2018 where it was acknowledged that I had paid Shaun’s debt and for this reason Shaun surrendered equity in our assets equal to the debt I had paid. Shaun did not transfer title to me to hide assets. I initiated this agreement. Bankruptcy was discussed as an option but he decided he owed it to people to pay them back so chose not to go down that path.
[54] It is clear that the debts referred to by the appellant’s wife in that passage from her statement to the Court, were not any debts that related to the appellant’s dishonesty. They related to loans he had taken out. The appellant’s motivation for paying these debts is not in any way altruistic but was solely to avoid being made bankrupt. Being made bankrupt would put his interests in the Stratford property, and any other assets, at risk.
[55] The implication in the statement from the appellant’s wife is that her separate funds were used to pay these debts rather than the relationship property. However, given that the funds came from her superannuation and the evidence was that she had been in a relationship with the appellant for 21 of the 22 years that she had been in her employment, almost all of those funds would have been relationship property.
[56] In other words, it seems that relationship property was used by the couple to pay the appellant’s personal debts. Not all of the funds withdrawn from the wife’s
superannuation funds in fact went to pay the debt itself. Some $210,000 of the
$319,000 was used to repay various loans either in the name of the appellant or in the parties’ joint names. The balance of the $319,000 was said to be used to pay or reduce shared debt and for living expenses and outgoings.
[57] An unusual feature of the relationship property agreement is that it has a mechanism whereby the appellant is able to regain an interest in the relationship property that was the matrimonial home.
[58] As well as dealing with the former relationship home, a life insurance policy on the appellant’s life was also transferred so that the beneficial owner was no longer the appellant. There were also some provisions relating to what happened to the property in the future, including in the agreement a provision that the parties could agree that relationship property could be divided between them. As well as the relationship property, the agreement provided that in addition to the home, the parties’ two vehicles, a 2014 Ford Territory, or any vehicle purchased in replacement thereof, and a Holden Commodore SV6, or any vehicle purchased in replacement thereof, as well as all furniture and chattels and all income earned by the wife, were to become the separate property of the wife.
[59] Having reviewed the agreement, I am satisfied that it is part of an attempt to minimise the opportunity for creditors to access the significant equity that the appellant and his wife had in their joint property.
[60] Despite the claim of the appellant’s wife that the assets were not transferred to her to hide them, I draw the clear inference that this was indeed one of the purposes of this agreement.
[61] Many of those who filed victim impact statements commented on the failure of the appellant to apologise to them for his action, and on his failure to front up and take ownership of his behaviour as tikanga would have required of him. One example of this is the statement of the representative of the Kotahitanga o Te Atiawa Trust. That statement said:
Mr Keenan’s non-engagement with Kotahitanga evidenced the lack of ownership of his actions, the effects of the same on Kotahitanga, the trustees and the people we serve. He avoided kanohi ki te kanohi meetings with his fellow trustees, failing to show any accountability, either culturally or professionally as to the impact of his actions. Despite the many opportunities for him to do so, he has not only refused to meet kanohi ki te kanohi with the trustees but has not taken any steps towards addressing his wrongdoing.
[62] The trustees also referred to the adverse effect of the appellant refusing to resign from his position as a trustee over the lengthy period between the appellant being initially charged with the dishonesty offences, and his ultimate entry of a guilty plea.
[63] In relation to these comments, Ms Hughes advances the explanation that charges were initially laid and then withdrawn and that led to a substantial delay between the initial period of apprehension and the time of the appellant entering his guilty pleas. Undoubtedly that is an accurate description of the course these proceedings have followed. But, it is not relevant to the issue of whether or not the appellant demonstrated remorse and whether he could, within that period, have taken the sort of steps that I have just referred to in accordance with tikanga to acknowledge his wrongdoing.
[64] Although I accept that the appellant would not immediately have known the exact amount that he had stolen, he would, from the very moment of his first apprehension, have appreciated that it was a very substantial sum. He would also have understood, not only that he had taken the funds, but that it was inappropriate, given that he knew the overall extent of his dishonesty, to have continued to remain as a trustee.
[65] Therefore, I reject the submission that his actions indicate any genuine wish to apologise, or any genuine or significant degree of remorse. If anything, they support the observations that have been made that there was very little, if any, remorse shown by the appellant.
[66] The absence of remorse was also specifically commented on by the writer of the pre-sentence report who said that the appellant:
Failed to express any remorse for his offending and did not acknowledge the impact his actions have had on his victims. He spoke instead of the impact his offending has had on himself and his family in terms of his reputation and consequent social isolation, as well as the ongoing financial impact paying reparation will have on his wife and children.
[67]The report writer also commented:
His desire to work again for the hapū suggests a level of disrespect and a sense of entitlement that does not recognise the impact his offending has had on his own people.
[68] Even the writer of the s 27 cultural report noted that the appellant’s strong focus was on the effect of the offending on his immediate family.
[69] All of this information contradicts the submissions for the appellant that the appellant does not need any deterrent from further offending, and he knows full well the harm he has caused. It also supports a conclusion that an MPI is needed to adequately denounce the appellant’s conduct.
[70] Given the appellant’s apparent 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.22 The Judge’s approach was not “mechanistic” and there was no error in the imposition of an MPI.
22 Above n 18.
Outcome
[72]For these reasons, the appeal against sentence is dismissed.
Churchman J
Solicitors:
Crown Law, New Plymouth cc: S W Hughes QC
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