KEEN v NEW ZEALAND POLICE [2020] NZHC 2337

KEEN v NEW ZEALAND POLICE [2020] NZHC 2337 [8 September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000103[2020] NZHC 2337BETWEEN TIFFANY JANE KEENAppellantAND NEW ZEALAND POLICERespondentHearing: 3 September 2020Counsel: R Glover for the AppellantA Harvey for the RespondentJudgment: 8 September 2020JUDGMENT OF DOOGUE JThis judgment was delivered by Justice Doogueon 8 September 2020 at 4.00 pm.Registrar/ Deputy RegistrarDate:Solicitors:Crown Solicitor, ChristchurchIntroduction[1] The appellant, Tiffany Jane Keen, was sentenced by Judge O'Driscoll in theDistrict Court at Christchurch on 1 July 2020, having pleaded guilty to:1 arepresentative charge of theft by a person in a special relationship;2 and three chargesof dishonestly using a document.3[2] The Judge sentenced Ms Keen to a total of two years, five months'imprisonment.[3] Ms Keen appeals this sentence primarily on the basis that insufficient weightwas given to the medical condition of her seven-year-old son.Background facts[4] Ms Keen is the stepdaughter of the victim. After her mother died, she livedwith the victim, and he gave her access to his bank account to pay house-related billson his behalf. Between January 2015 and April 2019, in 828 unauthorisedtransactions, Ms Keen transferred over $137,000 from the victim's bank account intobank accounts in her name. The amounts ranged from $1 to $10,000.[5] At the time of the offending, Ms Keen worked as a loans manager. She appliedfor a loan on three occasions in the name of the victim, without his knowledge orpermission. Two loans (totalling $3,300) were paid into an account belonging toMs Keen, and one loan (for $400) was paid into the victim's account.[6] When spoken to by police, Ms Keen admitted transferring the money into heraccounts. She said that she had the victim's permission, and it was for their livingexpenses. She admitted making the loan agreements, and stated that they were madeat the victim's request.1 Police v Keen [2020] NZDC 12518.2 Crimes Act 1961, ss 220 and 223(a): maximum penalty seven years' imprisonment.3 Section 228(1)(b): maximum penalty seven years' imprisonment.[7] In his impact statement, the victim recorded that he put Ms Keen in a positionof trust. He stated the money was saved for his retirement (he is 63 years old), he isunable to work due to his health, and is very worried about his future..District Court decision[8] The Judge identified the following aggravating factors:(a) the nature and magnitude of the offending, as illustrated by the lengthof time over which it had occurred and the number of withdrawalswhich were made;(b) the vulnerability of the victim; and(c) the offending was calculated and premeditated, with Ms Keen using thefunds to fund her own lifestyle, thereby depriving the victim of hissavings.[9] The Judge noted the pre-sentence report which, inter alia, observed that therewas a lack of remorse on Ms Keen's behalf.[10] The Judge noted that submissions had been made in respect of the Ms Keen'spersonal circumstances, including the medical condition of her son.[11] A starting point of three years, three months' imprisonment was arrived at ona global basis, taking into account the totality of Ms Keen's offending.[12] The Judge acknowledged Ms Keen has no prior convictions, but also noted hesaw no remorse for her offending. Taking into account the period of time over whichthe offending took place, the Judge did not give a discount for Ms Keen's lack ofprevious convictions. The Judge did give a discount of 10 months (approximately25 per cent) for Ms Keen's guilty plea.[13] This resulted in an end sentence of two years, five months' imprisonment.[14] The Judge also ordered reparation in the sum of $20,000, to be paid at$20 per week commencing once Ms Keen is released on parole.Approach to appeal[15] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that: forany reason, there is an error in the sentence imposed on conviction; and a differentsentence should be imposed.[16] A sentence appeal is an appeal against a discretion. The sentence must be eithermanifestly excessive or inappropriate, if the appellate court is to interfere with thediscretion.4[17] 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.5 As articulated in R v Peters:6As this Court has indicated on many occasions, the issue whether a sentenceis manifestly excessive or manifestly inadequate or inappropriate must beexamined in terms of the sentence actually passed, rather than the preciseprocess by which it is reached. Thus, if a sentence might be the product of astarting point which is itself manifestly excessive but it is in the resultameliorated by allowances made for mitigating factors so as ultimately to bebrought to a point of acceptability, this Court will be disinclined to intervenethrough concern over any particular component.SubmissionsAppellant's submissions[18] Mr Glover, for Ms Keen, submitted that the end sentence is manifestlyexcessive.[19] Mr Glover submitted fresh evidence relating to Ms Keen's son provides agreater level of detail than what may have been available to the Judge.4 Affleck v Police [2017] NZHC 3220 at [9].5 Ripia v R [2011] NZCA 101 at [15].6 R v Peters CA12/03, 14 May 2003 at [13].[20] Finally, Mr Glover submitted credit should be given to reduce the sentence toa level at which an electronically monitored sentence of home detention would beappropriate.Respondent's submissions[21] Mr Harvey, for the respondent, submitted that the end sentence is notmanifestly excessive and that it reflects the serious nature of the offending, particularlygiven Ms Keen's complete lack of remorse.[22] Secondly, while the fresh evidence does provide a greater level of detail thanthat which may have been available to the Judge, Mr Harvey said the Judge was awareof Ms Keen's situation with her son and that no further credit is warranted.[23] Thirdly, Mr Harvey submitted that in any event, any credit would not reducethe sentence to the level at which an electronic sentence would be appropriate.Was the sentence manifestly excessive?[24] Mr Glover did not provide any authorities in respect of this aspect of the appeal,but rather relied on the fresh evidence as to Ms Keen's son's medical circumstances.I first consider whether the starting point was manifestly excessive, before consideringMs Keen's personal circumstances.[25] The starting point of three years, three months' imprisonment was notexcessive. The Judge had the benefit of detailed submissions from both the Crownand defence, and in particular the Judge referenced the cases of R v Varjan,7 andBrooks v R.8[26] In R v Varjan, in relation to dishonesty offences, the Court of Appeal held:9[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude and sophistication;the type, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which the7 R v Varjan CA97/03, 26 June 2003.8 Brooks v R [2017] NZHC 851.9 R v Varjan, above n 7.offending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[27] In Brooks v R the appellant faced two charges of dishonestly using a documentand one charge of theft by a person in a special relationship. The appellant, a man inhis early sixties, had met and befriended the victim, another man of a similar age, whenthey were both living in a motor camp in South Otago. The victim was unwell at thetime and needed help buying his everyday provisions. The appellant offered to helpand the victim gave him his bank card and PIN number. Over a period of two months,the appellant made 76 unauthorised withdrawals on the card totalling $34,503. Thevictim had also asked the appellant to sell a caravan he owned on his behalf, in returnfor a commission. The appellant sold the caravan for $5,800, and retained the saleproceeds without telling the victim. By the time the offending was discovered, theappellant had moved elsewhere.[28] In the District Court, the Judge noted the serious impact of the offending onthe victim: the victim felt betrayed by someone he had trusted; the victim was ill andvulnerable, and the appellant had been aware of this; the money had been the victim'sentire retirement savings, and he was subsequently left living on a pension from weekto week. The Judge considered the breach of trust was at the highest end of the scale,and the offending was very serious.[29] On appeal, the High Court upheld the global starting point adopted by theJudge in the District Court of three years and three months' imprisonment, noting itwas high but not wholly out of proportion with the gravity of the overall offending.[30] The starting point is consistent with other sentencings, and is not manifestlyexcessive, having regard to: the nature of the offending; its magnitude andsophistication; the vulnerability of the victim; the amounts involved; and the periodover which the offending occurred.Did the Judge place insufficient weight on the medical information and referencesconcerning Ms Keen's son's medical condition?The fresh evidence[31] Mr Glover submitted that the Judge only made a "cursory" reference to thisfactor. The references that Mr Glover referred to all post-date the sentencing. Thisfully explains why only a "cursory reference" to this factor was possible. Thedocuments should be considered fresh evidence, rather than approached as a matter ofinsufficient weight having been given to this factor by the Judge.[32] As identified in Mark v R:10The principles of assessing the admissibility of fresh evidence for appealsagainst conviction are now well established. There is no reason why differentprinciples should be engaged where an appellant wishes to adduce freshevidence for an appeal against sentence. Thus, if the fresh evidence is notcredible it should not be admitted. If it is credible, an assessment needs to bemade as to whether it could not have been presented to the sentencing courtwith reasonable diligence. If the evidence is both credible and fresh it shouldbe admitted unless the appellate court is satisfied it would have had no effecton the sentence. If the evidence is credible but not fresh, the appellate courtshould assess its strength and its potential impact on the sentence. If theappellate court considers that the sentence could be manifestly excessive if theevidence is excluded then it should be admitted notwithstanding that it is notfresh.[33] Mr Harvey accepted that the most relevant document (the Canterbury DistrictHealth Board report of 31 July 2020) is credible. There is no information available asto why something of this nature was not provided at sentencing. I am prepared toaccept that it is fresh, and admit it for the purposes of the appeal.Analysis[34] Mr Glover pointed to Theodore v Police, where Ellis J explored discountsavailable for personal circumstances, specifically the impact of incarceration on adefendant's dependent children.11 There, the District Court imposed a final sentenceof 25 months, two weeks' imprisonment following the appellant's pleas of guilty toone charge of burglary and one charge of common assault. After canvassing the10 Mark v R [2019] NZCA 121, citing Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].11 Theodore v Police [2018] NZHC 2364.international position,12 and the discounts given by New Zealand courts in similarsituations (ranging from 15-20 percent),13 Ellis J gave a discount of 16 percent andindicated home detention would be appropriate (if a suitable address was found).[35] In Anderson v R, Lang J considered an appeal where the appellant sought for atwo year term of imprisonment to be converted to home detention, partly due to theimpact of her incarceration on her children.14 The District Court imposed a sentenceof two years' imprisonment, for assaulting a child and assault with a weapon. Afterserious consideration, the District Court Judge declined to convert the sentence tohome detention, noting the need to deter and denounce the type of offending, and holdthe appellant accountable. The High Court did not interfere with the decision, findingthe hardship caused to the appellant's family was the normal consequence ofimprisonment.15[36] Mr Glover did not submit that any particular discount would be appropriate inlight of the medical information concerning Ms Keen's son, he simply submitted thata sentence of home detention should be imposed. I prefer to adopt the approach ofDunningham J in Police v McWhirter:16I also observe that the Court should be mindful not to engage in artificialmanipulation of the sentencing exercise to reach a desired outcome. Anydiscount by way of mitigation should be principled. It is therefore notappropriate to refer to the value which a sentence less than imprisonment might have, and use that value to reason back to a discount sufficient to bringthe sentence within the threshold two years' short term of imprisonment.[37] While the fresh evidence provides a greater level of detail than what may havebeen available to the Judge, he was aware of Ms Keen's situation with her son and nofurther credit is warranted. Further, in any event, even if some credit were warranted,it would not reduce the sentence to the level at which a sentence of home detentionwould be appropriate.12 At [35]-[38].13 At [39].14 Anderson v R [2016] NZHC 2386.15 At [18]-[19].16 New Zealand Police v McWhirter [2016] NZHC 2865.[38] While Ms Keen's son clearly has particular challenges, the overall impact ofher receiving a sentence of imprisonment is not unique; rather, it is an unfortunateconsequence of her offending, and one which the Judge would have been all too awareof. I also note that the current care arrangements for Ms Keen's son appear to be safeand suitable.[39] While I acknowledge the approach of Ellis J in Theodore, given the scale ofthe offending in the present case, the length of time over which it occurred, the impacton the vulnerable victim, and the distinct lack of remorse shown by Ms Keen, adiscount for personal circumstances is not appropriate.Result[40] The appeal is dismissed.Doogue J