KEENAN v R [2021] NZCA 118

KEENAN v R [2021] NZCA 118 [15 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA578/2020[2021] NZCA 118BETWEEN SHAUN JOSEPH KEENANApplicantAND THE QUEENRespondentCourt: Brown, Katz and Edwards JJCounsel: E A Hall for ApplicantS E Trounson for RespondentJudgment:(On the papers)15 April 2021 at 12.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant, Mr Keenan, pleaded guilty to six charges of forgery,1 36 chargesof theft by a person in a special relationship,2 and four charges of obtaining bydeception.3 He was sentenced in the District Court at New Plymouth to three yearsand eight months' imprisonment with a minimum period of imprisonment (MPI) of1 Crimes Act 1961, s 256(1).2 Section 220.3 Section 240(1)(a).50 per cent.4 An appeal to the High Court on the sole issue of the imposition of theMPI was dismissed.5[2] Mr Keenan now seeks leave for a second appeal directed not only to the issueof the MPI but also other aspects of the Court's reasoning on sentence. Leave to appealis opposed by the Crown.Relevant background[3] Mr Keenan is a member of the Ngāti Te Whiti hapū. As a consequence ofa settlement between Ngāti Te Whiti and the Crown, two parcels of land were vestedin two land trusts. Mr Keenan became a trustee and subsequently chairperson of both.[4] In 2012 those trusts were merged into a new trust, the Ngāti Te Whiti WhenuaTopu Trust (the Trust), and Mr Keenan was appointed as the project manager for thebuilding of a marae which was of particular importance to both the Trust, the hapū andthe wider New Plymouth community.[5] The circumstances of Mr Keenan's offending are conveniently summarised inthe sentencing notes.6[5] In 2014 you were appointed as the first Chief Executive of the trust.As part of that role you had full access to trust bank accounts including incomeand expenditure and also the ability to authorise payments. Also you wereresponsible for reporting to the trust board and making sure that the financialinterests of the trust were correctly managed.[6] In 2016 trust board members became concerned about the finances ofthe trust and the state of the marae project that was not progressing.Particularly concern arose because there had not been audited accounts sincethe 2013-2014 financial year. This had been raised with you at meetings anddeflected.[7] By the end of 2016 the trust did not have enough money to pay thesalaries of employees and honorariums of the trustees. On 19 December 2016your employment was terminated with immediate effect. At that stage youroffending was apparent.[8] The secretary of the trust established that there had been numerouslarge unaccounted deposits made into your business bank account at the ANZ4 R v Keenan [2019] NZDC 16310 [Sentencing notes].5 Keenan v R [2019] NZHC 3339 [High Court judgment].6 Sentencing notes, above n 4.Bank. From her rudimentary audit a figure of $335,000 of suspicioustransactions were identified. Some of those are set out in the summary of factsand what [that] makes apparent is that after payment of the unauthorised fundsinto the company bank account then slowly but surely they made their wayinto the personal bank account of yourself and your wife. From there livingcosts and other outgoings were met.[9] On 6 May 2017 you met with members of the trust board andacknowledged your misappropriation. You agreed to pay the full amount backby 31 May 2017. No such payment was made then, nor has there beensubsequently, any repayment of the monies taken.[10] On 24 May 2017 a formal complaint was made to the police by thetrust. The total amount that you accept, following a police forensic audit, thathas been taken is the amount of $486,045.71.Sentencing[6] The material available to the Judge at sentencing included, in addition to theDepartment of Corrections Provision of Advice to Courts, a specialist whānau culturalassessment report, a report from the Taranaki Restorative Justice Trust, letters insupport of Mr Keenan and several victim impact statements.[7] Judge Barkle adopted a starting point of five years and six months'imprisonment, noting among other things the lengthy timeframe of the offending,7 thedegree of premeditation, the gross breach of trust involved and the considerable harmdone to some 1800 hapū members.8 A discount of 12.5 per cent (eight months) wasallowed for Mr Keenan's limited personal mitigating features, including remorse,proposed payment of reparation, prior good character and a willingness to undertakerestorative justice.9 A further 25 per cent discount (fourteen months) was applied forhis early guilty plea resulting in an end sentence of three years and eight months'imprisonment.10[8] With reference to the imposition of an MPI the Judge said:[47] Finally, I consider whether a minimum period of imprisonment shouldbe imposed. Section 86(2) Sentencing Act provides the criteria that are to beapplied. I have already recorded the features especially aggravating of your7 The sentencing notes erroneously records the timeframe of offending as between 2002 and 2017.In fact the commencement of offending was in 2012.8 Sentencing notes, above n 4, at [19] and [22].9 At [44].10 At [46].offending Mr Keenan. I cannot overlook the lengthy period that you offended,the amount that you took, that your conduct was calculated and premediatedwhatever 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 whanau from whom you stole. Nor canI overlook that your offending has caused immeasurable harm to a very largenumber of victims.[48] In my determination Mr Keenan to hold you properly accountable,properly to denounce your offending and to demonstrate adequate deterrenceof such conduct a minimum period of imprisonment of 50 percent of the endsentence will be imposed.The High Court appeal[9] As noted above,11 the appeal to the High Court was confined to the impositionof the MPI. It was contended that the sentencing Judge failed to give any or adequateweight to Mr Keenan's remorse, his status as a first offender, his desire to attenda restorative justice conference, the apology delivered as part of sentencing and thehardship of prison given his previous occupation as a police officer.[10] The thorough decision of the High Court noted that the funds stolenrepresented part of the proceeds of settlement of the iwi's historical claim against theCrown and rejected the analogy advanced by Mr Keenan's counsel that the situationcould be compared to shareholders in a company or workmates affected bydishonesty.12 The judgment considered the issues of a lack of remorse, supported byobservations of the authors of the pre-sentence report and the s 27 cultural report, andfailure to pay reparation. The Judge concluded that all of the information contradictedthe submissions for Mr Keenan that he did not need any deterrence from furtheroffending and that he knows full well the harm he has caused. It supporteda conclusion that an MPI was needed to adequately denounce his conduct. 13[11] The Judge concluded as follows:[70] Given the appellant's lack of awareness of the consequences of hisactions and his significant focus on himself and his immediate family ratherthan the victims of his dishonesty, it is debatable whether it could be said thatthe community does not need protecting from the appellant or that "his riskhas been neutralised" as claimed by his counsel. However, even disregarding11 At [1].12 High Court judgment, above n 5, at [37]–[39].13 At [69].the need for protection of the community, there is a sufficient basis indenouncing the appellant's conduct and deterring him or others from engagingin similar activities that justify the imposition of a 50 per cent MPI.[71] Although the Judge's discussion of the reasons why he imposed anMPI 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.The Judge's approach was not "mechanistic" and there was no error in theimposition of an MPI.Relevant principles[12] The application is brought under s 253 of the Criminal Procedure Act 2011which relevantly provides:253 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal courtappeal to that court against the determination of a first appeal by thatperson or the prosecutor under this subpart in respect of the person'ssentence.(3) The High Court or the Court of Appeal must not give leave for asecond appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or publicimportance; or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[13] This Court in McAllister v R noted that the test is in the same terms as that in(then) s 13 of the Supreme Court Act 2003.14 In relation to s 264(2)(a) and (b) of theCriminal Procedure Act, which read in identical terms to s 253(3)(a) and (b), the Courtobserved:[36] Adopting an approach consistent with that applied to s 13 of theSupreme Court Act would suggest, for example, that the threshold ins 264(2)(a) will be met where the proposed appeal gives rise to an issue of"general principle or of general importance in the administration of thecriminal law by the Courts". An illustration of a matter of general or publicimportance is one raising an important question of law having broadapplication beyond the circumstances of the particular case. By contrast, thereare numerous illustrations in the leave decisions of the Supreme Court whereleave has been declined on the basis that the application for leave raises issuesin the nature of a "factual assessment that is specific to the circumstances of14 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [32].the case" or the application of "well-established principles to a particular factsituation". This approach indicates that the expansion of the test to encompassquestions of fact does not necessarily mean a more liberal standard is to beapplied to questions of leave on a second appeal.[37] In terms of the miscarriage of justice limb, there are various ways ofcharacterising the approach to be taken, for example, if there is an argumentreasonable available that the court below is in error, that possibility wouldappear to come within s 264(2)(b), with the qualification [that not every errorwill give rise to a miscarriage of justice]. In the context of applying s 13 ofthe Supreme Court Act, the language used by that Court varies and aprescriptive approach would be unhelpful.(Footnotes omitted.)[14] Section 253(1) concerns leave to appeal from the determination of a firstappeal. The constraint on raising new points in a second appeal was recognised bythis Court in Terry v R:15[11] Applicants for leave to bring a second appeal to this Court areordinarily restricted to the grounds of appeal advanced in the High Court.Despite that general rule, the Court hearing a leave application may be movedto allow an intending appellant to advance new grounds, if it is clear that strictadherence to the rule may produce a miscarriage of justice. (Footnotes omitted.)Grounds of appeal[15] Both limbs of s 253(3) are invoked. It is contended that the sentencingmethodology and calculation was in error and resulted in a manifestly excessivesentence. In particular it is said that:a. The sentencing methodology adopted double counted aggravatingfactors in:i. Adopting of the starting point;ii. Declining to make allowance for mitigating factors because ofthe strength of the aggravating factors andiii. Imposing a 50 percent minimum period of imprisonment.b. The three-staged approach to calculating the sentence furtherexacerbated the error.15 Terry v R [2015] NZCA 108.[16] However only ground (a)(iii) was the subject of the determination of the firstappeal in the High Court. Consequently we address the issue of the MPI first beforeconsidering whether the additional grounds satisfy the Terry threshold.DiscussionThe MPI[17] The sentencing decision identified the following six aggravating features:16(a) the "large and significant" sum of money stolen;(b) the lengthy period of time over which the offending occurred;(c) the fact the offending continued after Mr Keenan's employment wasterminated;(d) that the offending was planned, premeditated and continued whenMr Keenan was fully aware of its criminality;(e) the gross breach of trust involved, particularly because Mr Keenan wasa member of the whānau and hapū; and(f) the significant impact his offending had on a large group of people, bothfinancially and emotionally.[18] Ms Hall submitted that reliance on the fourth factor involved double countingin the circumstances of this case for the reason that the first and second factors madeplanning and premeditation obvious.[19] Premeditation on the part of an offender is a factor specifically recognised ins 9(1)(i) of the Sentencing Act 2002. We do not accept the suggestion that the natureof the planning and premeditation in this case should have been ignored. Theoffending involved a deliberate diversion of money from the Trust's bank accounts16 Sentencing notes, above n 4, at [19].(over which Mr Keenan had control) to his personal bank account. It also involvedtaking steps to conceal the theft, such as deferring audits of the financial accounts anddeflecting concern from other Trustees. Those premeditated features of the offendingare distinct from the sum of money stolen and the period of time over which theoffending occurred. In our view, taking into account the fourth factor was legitimateand did not amount to double counting.[20] Ms Hall also drew attention to the fact that, while the sentencing Judgeprovided what she described as a nominal small discount for remorse, Churchman J inthe High Court had held that Mr Keenan's lack of remorse warranted the impositionof an MPI. It was submitted that "the use of overstated aggravating features and failureto consider mitigating features (other than to use the alleged absence of a mitigatingfeature, despite the sentencing Judge acknowledging it was present) to impose an MPIis a matter of general and public importance with broad application beyond thecircumstances of Mr Keenan's case".[21] We do not accept that depiction of the reasoning in the appeal judgment. Thesentencing Judge considered that genuine remorse and true recognition of the harmMr Keenan had caused was limited.17 Churchman J had to consider whether it was solimited or whether, as Mr Keenan's counsel argued, the sentencing Judge's findingwas undermined by Mr Keenan's offer to attend a restorative justice conference andhis oral apology.18 After a careful analysis Churchman J rejected the submission thatMr Keenan's actions indicated any genuine or significant degree of remorse.19 In ourview the Judge was right to do so.[22] In any event however we do not accept that the proposed appeal on the MPIeither raises a matter of general and public importance or involves a miscarriage ofjustice. The imposition of a 50 per cent MPI complied with the statutory criteria setout in s 86(2) of the Sentencing Act and was available to the sentencing Judge in thecircumstances of the case. As confirmed by the High Court on appeal the Judge'sapproach was not mechanistic and there was no discernible error.2017 Sentencing notes, above n 4, at [27].18 High Court judgment, above n 5, at [45].19 At [65].20 At [71].Other aspects of the sentencing methodology[23] Ms Hall also advanced the submission that, when addressing the mitigatingfactors, the sentencing Judge returned to the aggravating factors and discounted anyneed for any real reduction in the sentence, other than a modest 12.5 per cent forremorse, willingness to engage in restorative justice and the offer of reparation of$75,000 together with the 25 per cent discount for his guilty plea.[24] Claims that the level of discounting was inadequate or that the Court failed toproperly consider the question of whether Mr Keenan was in a state whakamā werenot raised in the lower court. They are not of such significance as to give rise toa miscarriage of justice and do not therefore satisfy the Terry threshold.21Consequently it is not appropriate for this Court to consider them for the first time ona second appeal.[25] Finally, with reference to the mode of calculation of sentence, this Court hasadopted a consistent approach of applying the two step methodology in Moses v R22only when calculating a revised sentence if an error has otherwise been established.The Court has declined to interfere with the sentence solely on the basis of theapplication of the three-step methodology as the generally small difference does notcreate a manifestly excessive sentence.23 That reasoning applies in this case where atwo-step approach would only result in a difference of approximately three months.Conclusion[26] We consider that the application does not raise a matter of general or publicimportance. Nor do we consider that a miscarriage of justice may have occurred ormay occur unless the appeal is heard. Hence the threshold for leave in s 253(3) of theCriminal Procedure Act is not satisfied.21 Terry v R, above n 15.22 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.23 See Roberts v R [2020] NZCA 441 at [53]–[54].Result[27] The application for leave to bring a second appeal against sentence is declined.Solicitors:Crown Law Office, Wellington for RespondentCourtney J already granted the extension of time in her minute dated 27 October 2020 at [3].