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Danial John Keeley v/s The Queen


Company & Directors' Information:- A N JOHN PVT LTD [Active] CIN = U74999WB1950PTC019260

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 747 of 2018

    Decided On, 01 July 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE BROWN
    By, THE HONOURABLE MR. JUSTICE WHATA & THE HONOURABLE MR. JUSTICE MOORE

    For the Appellant: M.J. James, Advocate. For the Respondent: A.J. Ewing, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] In respect of events in September–October 2017 Mr Keeley pleaded guilty to:

(a) offering to supply methamphetamine, possession of methamphetamine for supply, possession of equipment with intent to manufacture methamphetamine and other drugs charges (the drug offending);

(b) unlawful possession of a pistol and unlawful possession of ammunition (the firearms offending); and

(c) reckless driving, failing to stop and possession of an offensive weapon namely a hunting knife (the driving and possession charges).

[2] In respect of earlier offending in May 2017 Mr Keeley also pleaded guilty to:

(a) assault with intent to injure; and

(b) threatening to kill;

(together, the violence charges).

[3] He was sentenced on all charges in the District Court at Hamilton on 20 August 2018.[1] In respect of the lead offence, the methamphetamine charges, the Judge adopted a starting point of three years and nine months’ imprisonment, applied an uplift of 18 months in relation to the firearms and other drug offending, an uplift of nine months for the driving and possession charges and an uplift of 12 months for Mr Keeley’s prior convictions.[2] A 25 per cent discount for guilty pleas resulted in a sentence of five years and three months which was reduced to five years’ imprisonment on account of both totality and it being cumulative on Mr Keeley’s then current sentence.[3] A minimum period of imprisonment of 50 per cent, being two years and six months’ imprisonment, was imposed.

[4] With reference to the related offending in May 2017 a starting point of 18 months’ imprisonment with a discount of four months for the guilty pleas produced a sentence of 14 months’ imprisonment. This was imposed cumulatively on the sentence of five years’ imprisonment.

[5] On appeal Mr Keeley contends:

* an appropriate starting point for the methamphetamine offending was no more than three years’ imprisonment;

* the appropriate starting point for the violence charges was 12 months’ imprisonment; and

* the discount for totality of three months’ imprisonment was inadequate.

[6] Mr Keeley filed his notice of appeal two weeks out of time. We are satisfied it is appropriate to grant an extension of time to appeal and do so accordingly.

Starting point for methamphetamine charges

[7] While accepting that the case fell within band 2 of R v Fatu Ms James challenged the additional nine-month period of imprisonment beyond the three-year bottom end of band 2.[4] She placed particular emphasis on Mane v R where, in allowing an appeal against sentence, this Court held that a starting point of four to four and a half years’ imprisonment was appropriate for possession of 18.45 grams of methamphetamine for supply.[5] The quantity involved and the likely level of activity in Mane called for a higher starting point than that appropriate for offending at the bottom end of the range. By comparison the amount involved in the present case was found to be 10.75 grams and the Judge identified Mr Keeley as being a low-level dealer.[6]

[8] Ms James also relied upon R v Whakatihi[7] (starting point of three years and six months’ imprisonment for 14 grams of methamphetamine), R v McIntosh[8] (starting point of three years’ imprisonment for 11 grams), Sun v Police[9] (starting point of three years and six months’ imprisonment for 14.5 grams) and Constable v Police[10] (two years and nine months’ imprisonment in respect of five to six grams).

[9] In response Ms Ewing relied on two cases in support of the Judge’s starting point. In Daniels v R a street dealer was convicted of offering or supplying a total of 13 grams of methamphetamine on 35 occasions.[11] This Court approved a starting point of four years, noting the active role. In Duncan v R a starting point of three years and three months’ imprisonment was upheld in circumstances where nine grams of methamphetamine was found in Mr Duncan’s van and he was convicted at trial for possession for the purposes of supply.[12] The Court noted the starting point would have been within range even if — as alleged on appeal — the drug was so impure that only 4.8 grams was possessed. Ms Ewing submitted that the present case fell between Daniels and Duncan in respect of both the starting point adopted and Mr Keeley’s culpability.

[10] When Mr Keeley was arrested on 25 October 2017 he was in possession of approximately 3.6 grams of methamphetamine and a set of scales. It was also established that he had had in his possession items for use in the manufacture of methamphetamine. Further when police obtained a production order relating to his text messages it was apparent that he was communicating with persons about the supply of a “Q round” (7 grams), a “dolly” (.1 of a gram) and a “50” (.05 grams).[13]

[11] The Crown submission correctly observed that steering by weight Mr Keeley’s offending was not on the cusp of bands 1 and 2 of Fatu (5 grams) but involved twice that quantity. Further it was significant that he was offering “bulk” supplies (7 grams) and was close enough to the manufacturing process to have some of the equipment found in his possession.

[12] In these circumstances we consider that the starting point of three years and nine months’ imprisonment was within range.

Starting point for the violence charges

[13] Noting that there is no tariff case for assault with intent to injure, Ms James referred to several decisions that support a starting point of 12 months’ imprisonment: Taingahue v Police,[14] Kohu v Police[15] and Tamihana v Police.[16] While acknowledging that a cumulative sentence was appropriate she submitted that a starting point of 18 months’ imprisonment was too high in this case.

[14] However Ms Ewing submitted that the selected starting point needed to be seen in the context of the further charge of threatening to kill, pointing out that in Daniels this Court approved an additional 18 months’ imprisonment for an assault with intent to injure and threats to kill.[17] She submitted that Mr Keeley’s threats and violence were just as serious. He called his victim a “nark”, suggesting that his motive (as in Daniels) was to punish a disclosure by her. The threats were however less serious than those in Daniels in that although it can be inferred Mr Keeley threatened the use of a lethal weapon (a firearm) he was not actually brandishing it at the time.

[15] We agree that this case warrants a similar approach to that in Daniels. Indeed we also note that Mr Keeley assaulted the victim in her home and inflicted facial injuries, both factors which distinguish the present case from Daniels. In Solicitor-General v Hutchison[18] this Court recognised that violence occurring in a complainant’s home would normally be an aggravating factor for sentencing purposes. Having regard to the total context of the violence offending we consider that a starting point of 18 months was within range.

Totality

[16] Ms James submitted that the discount of three months’ imprisonment was inadequate in that the overall sentence of six years and two months’ imprisonment was out of all proportion to the gravity of the offending. While accepting that the uplift for the firearms and drugs charges was appropriate, as was the uplift for previous convictions, she submitted that the uplift for the driving and hunting knife charges was stern and should have been less.

[17] Taking into account both that and the nine months referred to in the attack on the starting point, she submitted that a nominal end sentence of six years’ imprisonment should have been reached resulting in a final end sentence of four years and six months’ imprisonment. The addition of a reduced sentence for the violence charges would result in a cumulative sentence of five years and approximately five months’ imprisonment which, having regard to the principle of totality, should be further reduced to a final sentence of five years’ imprisonment.

[18] Ms Ewing responded that cumulative sentences do not inevitably demand a discount for totality.[19] She submitted that totality operates for unrelated offending that is sentenced separately but cumulatively and that what is required is that the total period of imprisonment must not be wholly out of proportion to the gravity of the overall offending.[20] While describing the total sentence as a “stern response” she submitted that when Mr Keeley’s history is considered the end sentence of six years and two months’ imprisonment was not out of all proportion to the gravity of his offending.

[19] The unusual feature about this sentence lies in the fact that the Judge did address the issue of totality but prior to turning to address the violence offending. In consequence there was no consideration of the totality principle in relation to the implications of the cumulative sentences. In our view a reduction in the total sentence reached was required, although the reduction to be made is not particularly significant having regard to both the fact that a three month discount had already been allowed[21] and the discount for the guilty pleas to the violence charges was generous notwithstanding the Judge’s description of it as small.[22]

[20] In our view the appropriate total sentence is five years and nine months’ imprisonment. Accordingly we replace the sentence of 14 months’ imprisonment with a sentence of nine months’ imprisonment, to be served cumulatively on the five year sentence for the other offending. Ms James did not challenge the 50 per cent minimum period of imprisonment imposed by the Judge in respect of that other offending.

Result

[21] An extension of time for leave to appeal is granted.

[22] The appeal against sentence is allowed.

[23] The sentence of six years and two months’ imprisonment is quashed and a sentence of five years and nine months’ imprisonment is substituted.

[24] The 50 per cent minimum period of imprisonment for the drug offending, firearms offending and driving and possession charges (two years and six months’ imprisonment) remains.

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----------------- [1] R v Keeley [2018] NZDC 17308. [2] At [22]–[23]. [3] At [24]. [4] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). [5] Mane v R [2017] NZCA 543 at [18]. [6] R v Keeley, above n 1, at [16]. [7] R v Whakatihi HC Palmerston North CRI-2011-054-463, 12 October 2012. [8] R v McIntosh [2012] NZHC 3110. [9] Sun v Police [2015] NZHC 414. [10] Constable v Police [2014] NZHC 2940. [11] Daniels v R [2018] NZCA 62. [12] Duncan v R [2018] NZCA 108. [13] R v Keeley, above n 1, at [11], [15] and [21]. [14] Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009 at [16]. [15] Kohu v Police [2013] NZHC 944. [16] Tamihana v Police [2015] NZCA 169. [17] Daniels v R, above n 11. [18] Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27]. [19] Citing Ashcroft v R [2014] NZCA 551 at [32]. [20] Sentencing Act 2002, s 85(2). [21] R v Keeley, above n 1, at [24]; see also [3] above. [22] At [28].
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