KEENAN-FRY v NEW ZEALAND POLICE [2021] NZHC 562

KEENAN-FRY v NEW ZEALAND POLICE [2021] NZHC 562 [18 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000544[2021] NZHC 562BETWEEN LAURANCE KEENAN-FRYAppellantAND NEW ZEALAND POLICERespondentHearing: 15 March 2021Appearances: P Syddall for AppellantR Morrison for RespondentJudgment: 18 March 2021JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 18 March 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Meredith Connell, AucklandP Syddall, North Shore CityIntroduction[1] The appellant, Laurance Keenan-Fry, appeals a sentence of 25 months'imprisonment imposed on him by Judge Glubb in the District Court at Waitakere on 4December 2020.1 The sentence was imposed in relation to the following charges:(a) unlawful possession of a firearm contrary to s 45(1) of the Arms Act1983 (x 2);(b) unlawful possession of ammunition contrary to s 51 of the Arms Act (x2);(c) possession of a methamphetamine pipe contrary to s 13(1)(a) of theMisuse of Drugs Act 1975;(d) possession of cannabis contrary to s 7(1)(a) and (2) of the Misuse ofDrugs Act;(e) dangerous driving contrary to s 35(1)(b) of the Land Transport Act1998;(f) failing to stop for the police contrary to s 52A(1)(a)(ii) of the LandTransport Act;(g) driving while forbidden contrary to s 52(1)(c) of the Land TransportAct; and(h) breach of release conditions contrary to s 71(1) of the Parole Act 2002.[2] On appeal, Mr Keenan-Fry submits that the discounts afforded to him by theJudge were insufficient and that, as a result, the end sentence imposed was manifestlyexcessive. The respondent supports the sentence imposed and says that it was withinthe available range given the offending and Mr Keenan-Fry's culpability.1 New Zealand Police v Keenan-Fry [2020] NZDC 25256.Background[3] Mr Keenan-Fry was forbidden to drive until he obtained a driver's licence aslong ago as February 2011.[4] In January 2020, a person was observed by the police driving a motor vehiclein Ranui. The police signalled the driver to pull over, but the driver accelerated away.The police followed the vehicle. The driver reached speeds of up to 90 kilometres anhour in a residential area with a 50 kilometre an hour speed limit. The driverrepeatedly crossed the centre line and drove on the wrong side of the road.[5] The police abandoned the pursuit. Instead the driver was followed by thepolice helicopter from above.[6] At one point a silver Colt pistol was thrown out of the driver's side window ofthe motor vehicle. The pistol was retrieved by the police. It had a magazine in itwhich contained three live 9 millimetre rounds of ammunition.[7] The driver was apprehended by the police a short time later getting out of thevehicle. It was Mr Keenan-Fry and the police quickly ascertained that he wasforbidden from driving.[8] The police found a bag in the vehicle. Inside the bag was another magazinethat matched the pistol that had been thrown out of the car window. The police alsofound a small plastic ziplock bag containing .33 grams of cannabis plant material aswell as a sawn off double-barrel shotgun and 11 live shotgun shells. Two more shellswere located in a bag that Mr Keenan-Fry tried to hide together with a usedmethamphetamine pipe.[9] The charges were filed in the District Court at Waitakere on 21 January 2020.Mr Keenan-Fry was initially remanded in custody. Not guilty pleas were entered inFebruary 2020. Mr Keenan-Fry applied for electronically monitored (EM) bail. Itwas declined by Judge Glubb on 26 March 2020.2 Mr Keenan-Fry then sought a2 Police v Keenan-Fry [2020] NZDC 5666.sentence indication. It was given by Judge Glubb on 12 May 2020.3 The Judgeindicated a likely sentence of 27 months' imprisonment. The sentence indication waspromptly accepted and guilty pleas were entered on 15 May 2020.[10] Sentencing was scheduled for 10 September 2020, but it was adjournedbecause Mr Keenan-Fry was making good progress in the LIMA unit at Mt EdenPrison (the LIMA unit is a dedicated unit aimed at providing early drug and alcoholrehabilitation programmes for remand prisoners). Mr Keenan-Fry applied afresh forEM bail to a property occupied by the Ahikaa Trust because it offers a pathway to theBridge Programme. This application was declined by Judge Glubb.4[11] Mr Keenan-Fry was finally sentenced on 4 December 2020.District Court sentence indication/sentencingSentence indication[12] The Judge, after summarising the offending, recorded his view that it involveda degree of planning and premeditation, and that it presented extreme risks, given theway in which Mr Keenan-Fry had driven and his possession of a loaded firearm andanother firearm together with ammunition. The Judge also noted that Mr Keenan-Frywas subject to sentence at the time, and that he had only just been released from a termof imprisonment for essentially similar offending. The Judge could see no mitigatingfeatures relating to the offending.[13] The Judge noted the competing submissions. He referred to variousauthorities, in particular cases dealing with the possession of firearms. He consideredthat the possession of a firearm charges were the lead charges and he adopted a startingpoint for this offending of 26 months' imprisonment. He uplifted this starting pointby eight months for the balance of the offending – taking him to a combined startingpoint of 34 months' imprisonment. He noted Mr Keenan-Fry's previous convictionsand uplifted this adjusted starting point by a further six months to take them intoaccount and to recognise that the offending was committed while Mr Keenan-Fry was3 Police v Keenan-Fry DC Waitakere CRI-2020-090-324, 12 May 2020.4 Police v Keenan-Fry [2020] NZDC 22101.subject to sentence. This took the Judge to a starting point sentence of 40 months'imprisonment.[14] The Judge then turned to look at Mr Keenan-Fry's personal circumstances and"apparent" addiction ("apparent" because he did not have any assessment report inrelation to the claimed addiction). The Judge nevertheless was satisfied that drugswere driving Mr Keenan-Fry's offending and he indicated that he would discount anysentence imposed by 15 per cent for Mr Keenan-Fry's personal circumstances andaddiction issues. The Judge did say that he would need to see some evidence of thisat sentencing if the indication was accepted. This took the Judge's starting point backdown to 34 months' imprisonment. He then indicated that he would be prepared togive Mr Keenan-Fry a discount of 20 per cent if guilty pleas were entered, which tookhim down to 27.2 months' imprisonment. He rounded that figure down in Mr Keenan-Fry's favour to 27 months' – or two years and three months' – imprisonment. TheJudge considered that a sentence of this length was not amenable to "conversion".Even if it were, he observed that the need for denunciation and deterrence, and theneed to hold Mr Keenan-Fry accountable and to protect the community, meant that anon-custodial sentence would not be appropriate.Revision to recognise Moses v R[15] When Mr Keenan-Fry sought EM bail in October 2020, the Judge indicatedthat he had reviewed his sentence indication of 27 months' imprisonment, and hadrecalculated, given the decision of the Court of Appeal in Moses v R.5 As a result, theindication came down to a term of imprisonment of 26 months.Sentencing[16] At sentencing, the Judge adopted in full his sentence indication. He recordedthat he had since received a pre-sentence report, and that Mr Keenan-Fry hadacknowledged to the report writer that methamphetamine was a problem for him. TheJudge noted that Mr Keenan-Fry was assessed as presenting a high risk of harm andof further offending, and that his compliance with community based sentences in the5 Moses v R [2020] NZCA 296.past had been poor. The Judge also noted that Mr Keenan-Fry had worked as amechanic and that his short-term goal, on release, was to deal with hismethamphetamine problem and then to get back into employment. He noted thatMr Keenan-Fry had a sponsor in the community, that he had left a gang, that he wasin the process of getting a gang facial tattoo removed and that he had undertaken anumber of rehabilitative courses. He recorded that Mr Keenan-Fry had acknowledgedto the report writer that it was time he took responsibility for his actions and learntfrom his past mistakes. The Judge recorded that the report writer neverthelessrecommended a sentence of imprisonment.[17] The Judge also referred to a letter of remorse he had received from Mr Keenan-Fry. He noted that there was a safety plan in place for him on his release from custody,setting out what he proposed to do and detailing the strategies in place to ensure thathe did not fall back into his old habits. The Judge accepted that Mr Keenan-Fry hadbeen doing good work in the LIMA unit. He also noted that Mr Keenan-Fry had donea number of rehabilitation courses. He reviewed Mr Keenan-Fry's CommunityAlcohol and Drugs Services (CADS) assessment report, and acknowledged that drugshad been an issue for him. The Judge also referred to a report prepared pursuant to s27 of the Sentencing Act 2002. He considered that this report was instructive; itsummarised Mr Keenan-Fry's difficult upbringing, various adverse childhoodexperiences, his poor educational outcomes and the early onset of his drug addiction.[18] The Judge noted that counsel was submitting that further discounts should bemade available to Mr Keenan-Fry, and suggesting that intensive supervision would bethe best way to deal with the acknowledged offending. The Judge recorded that:6 as I indicated at the time that I declined your electronically monitored bail,I was not inclined to give further discount for those matters having given areasonably generous discount already in terms of the 15 per cent allocatedpreviously.Further, the Judge was not satisfied that there was "a direct nexus" between thefirearms related offending and Mr Keenan-Fry's difficult upbringing. He did howeveracknowledge that drugs had been a real factor in Mr Keenan-Fry's life and recorded6 New Zealand Police v Keenan-Fry, above n 1 at [15].that that had been the basis on which the discount discussed in the sentence indicationhad been framed. The Judge wanted to recognise the good work Mr Keenan-Fry hadachieved in the LIMA unit and to encourage him in his efforts at rehabilitation. Heaccepted that Mr Keenan-Fry had shown a marked difference in his approach. Hegave Mr Keenan-Fry a further one month discount for the efforts he had made, and heimposed an end sentence of 25 months' imprisonment on the firearms offending. Hedid not impose any release conditions, leaving this to the Parole Board. Concurrentsentences were imposed for all of the other offences and disqualification was orderedin relation to the driving related offending.The appeal[19] The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011.The fact that Mr Keenan-Fry received a sentence indication does not affect his rightto appeal the sentence imposed.7[20] This Court must allow the appeal if it is satisfied that, for any reason, there isan error in the sentence imposed on conviction and that a different sentence should beimposed.8 This Court does not start afresh. Nor does it simply substitute its ownopinion for that of the original sentencer. Rather, it must be shown that there was anerror by the original sentencer, whether intrinsically or as a result of additional materialsubmitted on appeal. If there is an error, the Court will then consider whether thaterror is material and whether it has resulted in a manifestly excessive sentence. Thefocus is on whether the sentence imposed is within range, rather than the process bywhich it was reached.9Submissions[21] Mr Syddall, appearing for Mr Keenan-Fry, did not challenge the starting pointadopted by the Judge for the firearms related offending. Nor did he challenge theuplifts to recognise the additional offending, Mr Keenan-Fry's criminal history andthat the offending was committed by Mr Keenan-Fry whilst subject to sentence. The7 Criminal Procedure Act 2011, s 245.8 Section 250(2).9 Tutakangahau v R [2014] NZCA 279 at [30]-[36].appeal was limited to the discounts allowed by the Judge. He argued that whenMr Keenan-Fry accepted the sentence indication, he had reason to believe that furtherdiscounts might be made available to him, and that the Judge erred in allowing only amodest additional discount of one months' imprisonment (or 2.5 per cent) to reflectthe additional information which was available to him when the sentence was imposed– namely, a s 27 cultural report, a comprehensive drug assessment, a pre-sentencereport and further information on Mr Keenan-Fry's rehabilitation efforts. It wassubmitted that Mr Keenan-Fry should have been afforded an additional discount forthese various matters, but an additional discount was not allowed with the result thatthe end sentence was manifestly excessive.[22] Mr Morrison, for the Crown, noted the Judge's observation that there was nodirect nexus between the firearms related offending and the matters discussed in the s27 report. It was argued that this conclusion was open to the Judge and that, as a result,no further discount was required to recognise Mr Keenan-Fry's difficult upbringingand cultural background. It was further noted that the Judge, in his sentence indication,accepted that Mr Keenan-Fry has a drug addiction and that he would be prepared togive him a 15 per cent discount for his personal circumstances and addiction issues.At sentencing, the Judge confirmed his view that Mr Keenan-Fry had addictionproblems and granted the 15 per cent discount indicated in the sentence indication. Itwas argued that this was generous. It was also submitted that whether or notMr Keenan-Fry should be afforded an additional discount for the remorse expressedwas a matter for the Judge and that it was open to him to conclude that there was nogenuine remorse, given Mr Keenan-Fry's previous convictions. It was noted that theJudge gave an additional discount of one month to reflect Mr Keenan-Fry'srehabilitative efforts. It was acknowledged that the Judge could have given a greaterdiscount for those efforts, but that, when considered in totality with the "alreadygenerous discount" for Mr Keenan-Fry's drug addiction, the end sentence was withinrange.Analysis[23] No issue has been taken with the Judge's starting point nor with the upliftsimposed. This appeal focuses on whether or not sufficient discounts were afforded toMr Keenan-Fry.[24] When the Judge gave the sentence indication, he noted submissions made bycounsel for Mr Keenan-Fry that drugs were driving his offending. The Judge notedthat he did not have any assessment report to this effect, but that he would be preparedto give a 15 per cent discount both for Mr Keenan-Fry's personal circumstances andaddiction issues, if evidence could be adduced satisfying him as to these matters. TheJudge did not resile from this indication at sentencing.[25] At sentencing, there were comprehensive materials available to the Judge, noneof which was available when the sentence indication was given.(a) First, there was the pre-sentence report. It recorded that Mr Keenan-Fry had acknowledged that he had been using methamphetamine forsome time prior to the January 2020 offending, and that his use ofmethamphetamine directly affects his ability to consider theconsequences of his actions. Mr Keenan-Fry advised the report writerthat he had been using methamphetamine for years, to the point wherehe was consuming on average between one and two grams a day. Mostof his income went on purchasing the drug.(b) Secondly, there was an alcohol and drug treatment report prepared byCADS. That report recorded that Mr Keenan-Fry had left a gang withwhich he was associated and that he was in the process of getting gang-related facial tattoos removed. Mr Keenan-Fry told the report writerthat he first consumed alcohol at the age of 12 years, that he firstconsumed cannabis when he was eight years of age, and that he firstconsumed methamphetamine at the age of 12. Initially he smokedmethamphetamine but he started to use it intravenously at the age of 16years. Mr Keenan-Fry stated that his usage had increased to threegrams of methamphetamine a day. He also said that he hadexperimented with other illicit drugs, including acid, ecstasy and GBL.He has been treated in the Odyssey programme and he enrolled forother alcohol and drug courses. He had not however engaged in thosecourses, either failing to attend or attending infrequently. Mr Keenan-Fry also reported that he was diagnosed with ADHD as a child and thathe received ritalin for that condition. There was a brief summary of hisfamily and personal development histories. It was noted thatMr Keenan-Fry has a young daughter. Mr Keenan-Fry was assessed assuffering from moderate cannabis use disorder and severemethamphetamine use disorder. Mr Keenan-Fry said that he wasmotivated to turn his life around, and that his motivation to do so wasto be part of his family. He was assessed as being a suitable candidatefor an alcohol and drugs rehabilitation programme.(c) Thirdly, there was the cultural report prepared pursuant to s 27 of theSentencing Act. It noted Mr Keenan-Fry's disadvantaged background.His parents separated at an early age; he was subject to an earlycustodial sentence in a youth facility, he is disconnected culturally; hesuffered physical abuse as a child; he became involved in a gang at anearly stage; he had a fractured pathway through education that endedprematurely without him obtaining any formal qualifications; he wasintroduced to drugs at an early age and subsequently became an addict;he indulged in sexual activity, also at a very early age. He was expelledfrom school in year 9. He was given a custodial sentence in a facilityin Palmerston North when he was 14. He joined a gang as a teenagerbecause it gave him a sense of belonging. The report writer consideredthat Mr Keenan-Fry's background is one of pervasive and persistentsocial, emotional and cultural disadvantage. Mr Keenan-Fry'sbackground had resulted in a man who, in his own words, feels"overwhelmed with even the basic stuff in life". The report writer alsoconsidered Mr Keenan-Fry presented as a man who is highly motivatedto stay off drugs, and that he is committed to participating inrehabilitation programmes to address his addiction issues. It was notedthat he has the unwavering support of his mother, his brother and anindependent mentor who he calls frequently. It was noted thatMr Keenan-Fry is asking for help for the first time and that this is a"huge milestone".(d) Fourthly, there were various reports into Mr Keenan-Fry's successfulrehabilitative efforts.[26] Considering all of this material in the round, in my view, the Judge erred whenhe allowed only a 17.5 per cent discount to Mr Keenan-Fry.[27] Where drug addiction is shown to be causative of offending, it is a mitigatingconsideration, and it can justify a sentence discount of up to 30 per cent. Addictioncan also combine with mental health issues, with the result that both can be consideredin combination. Addiction calls for consideration of a rehabilitative response as partof sentencing.10[28] I am satisfied, as was the Judge, that addiction played a major part inMr Keenan-Fry's offending. It appears from the various reports that he had been usingmethamphetamine at or about the time of the offending. He told various report writersthat he was in possession of the firearms, not for some sinister purpose, but rather totrade for drugs. There is nothing to deny this assertion and the Crown did not commenton it at the appeal hearing. In my judgment, Mr Keenan-Fry should have been affordeda discount of 20 per cent for his drug addiction issues.[29] Further, it is clear that Mr Keenan-Fry has genuinely sought to engage inrehabilitative efforts. He was placed in a LIMA unit at Mt Eden Prison whilst onremand. Reports from the Department of Corrections advise that he willinglyparticipated in the programmes offered in that unit, that his incarceration in the unitwas incident free and that his behaviour has improved over time. Mr Keenan-Frycompleted a number of programmes, namely Kairology: Time for Change; SixThinking Hats; CADS; Dynamics of Whānaungatanga; Controlling Anger Workbook;an Alcohol and Other Drug Treatment Court (AODTC) Workbook; DiscoveringFatherhood; Anger Management; an Alcohol and Other Drug Relapse Prevention10 See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.Workbook and Sensory Modulation and Wairua. He was undertaking or proposing toundertake further programmes – Tikanga Maori; Mediation; Life 101; Parenting;Theory for a Driver's Licence Theory; Meditation. The Department of Correctionsnoted that Mr Keenan-Fry was engaging well with staff, and that he was always askingabout options available in custody and in the community to help him make changes inhis lifestyle choices. It was noted that he had diligently worked his way through theprogrammes on offer in the LIMA unit, and that his work had shown insights into hisoffending. It was also observed that he had supported other participants in theprogrammes. Staff made positive comments about his motivation levels andcompliance. The Principal Corrections Officer in the unit entered a note inMr Keenan-Fry's records that " he appears to be building a positive thought process.It is hopeful that Laurance has a clear pathway for his future to recovery".[30] Mr Keenan-Fry's family paid for him to be admitted to The Retreat, a privaterehabilitation facility. That offer was however subsequently withdrawn when TheRetreat became aware of the charges Mr Keenan-Fry was facing and his criminalhistory. He then made application to be admitted into the Waitakere AODTC. Thatapplication was declined. A placement was then obtained for him at Ahikaa and, asnoted above, a further EM bail application was advanced before Judge Glubb tofacilitate his placement in that programme. The Judge however did not grant the same.Mr Keenan-Fry also applied to Odyssey House, Epsom Lodge, Gracegate and theWings Trust.[31] It is difficult to see that Mr Keenan-Fry could have done much more. I agreewith Mr Syddall that the Judge did not fully recognise Mr Keenan-Fry's attempts torehabilitate himself. I would allow him an additional discount of 10 per cent torecognise his various and to date successful rehabilitative steps.[32] Mr Syddall also argued that Mr Keenan-Fry should be entitled to a furtherdiscount for his personal circumstances. I have read the cultural report. Mr Keenan-Fry clearly had a poor start to life. However, before a discount can be available forpersonal and cultural matters, there must be a causal link between the personalcircumstances/cultural deprivation and the offending.11 Judge Glubb considered thatthere was no direct nexus between the firearms related offending and Mr Keenan-Fry'supbringing. I accept the point made by Mr Morrison that that finding was open to theJudge. There is no clear causative link. Accordingly, I do not consider that the Judgeerred when he declined a further discount for this factor.[33] Finally, there is the issue of remorse. Mr Keenan-Fry submitted that he shouldbe entitled to a discrete discount for remorse. He wrote a letter of apology to the Court.He also told various of the report writers that he is remorseful. Judges can be scepticalof indications of remorse where the circumstances indicate that it is not genuine.12 Insentencing, the Judge acknowledged the letter, but did not allow a discreet discountfor remorse. In my judgment, this course was open to the Judge. Mr Keenan-Fry wasa recidivist offender. He has seven previous firearms convictions and a host of otherconvictions for not dissimilar offending. It was open to the Judge not to give anyfurther discount even for a genuine expression of remorse, and I am not persuaded thatthe Judge erred in this regard.[34] There has been no challenge to the Judge's finding that a 20 per cent discountwas appropriate for the guilty pleas entered.[35] It follows that, with the additional discounts I am prepared to allow, the totalappropriate discount should have been 50 per cent of the sentence that would otherwisehave been imposed of 40 months' imprisonment. The resulting end sentence should,in my view, have been one of 20 months' imprisonment. As a result, the appeal isallowed. The sentence of 25 months' imprisonment imposed by the Judge for thefirearms and ammunition offences are set aside, and a sentence of 20 months'imprisonment is imposed in respect of each of those offences. The other sentencesimposed by the Judge are upheld, as are the periods of disqualification and the startdates of those periods of disqualification. All sentences of imprisonment are to beserved concurrently.11 Zhang v R, above n 10 at [159].12 R v Lambert CA456/05, 4 April 2006 at [25].[36] Mr Keenan-Fry has been in custody since 20 January 2020. I am imposing ashort term sentence of imprisonment. On release of this judgment, Mr Keenan-Frywill be eligible for immediate release. I discussed this with counsel and both agreedthat, if I reached this point, it would be appropriate to impose special conditions on hisrelease. As a result, I impose the following special conditions of release:(a) Mr Keenan-Fry is to reside at such address as shall be approved inwriting by a probation officer. He is not to move from that address untilhe has the prior written approval of a probation officer;(b) Mr Keenan-Fry is not to possess or consume alcohol, controlled drugsor psychoactive substances, excluding those prescribed to him by adoctor;(c) Mr Keenan-Fry is to attend as required for alcohol and drugassessments, and is to attend such alcohol and drug programme(s)(including residential programmes), as shall be directed by a probationofficer. Mr Keenan-Fry is to participate in and complete any suchprogramme(s);(d) Mr Keenan-Fry is to attend an assessment for a departmentalprogramme/maintenance group and attend, participate in and adhere tothe rules of the programme/maintenance group as directed by aprobation officer;(e) Mr Keenan-Fry is to obtain the written approval of a probation officerbefore starting, changing or leaving employment (including voluntaryand unpaid work);(f) Mr Keenan-Fry is not to engage or associate with any gang or any gangmembers.[37] These special conditions are imposed pursuant to s 93(2) of the Sentencing Act.They are intended to facilitate and promote Mr Keenan-Fry's rehabilitation andreintegration into society. They are to apply for a period of six months fromMr Keenan-Fry's sentence expiry date.__________________________Wylie J