Police v Keogh HC Auckland CRI 2011-488-2 [2011] NZHC 210 (14 March 2011)

Last Updated: 3 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2011-488-2}

NEW ZEALAND POLICE

Appellant

v

SHARN STANLEY KEOGH

Respondent

Hearing: 14 March 2011

Appearances: M B Stevens for Appellant

C Muston for Respondent

Judgment: 14 March 2011

(ORAL) JUDGMENT OF LANG J [on Crown appeal against sentence]

Solicitors:

Crown Solicitor, P O Box 146, Whangarei

_{Christopher Muston, P O Box 1905, Whangarei}

NEW ZEALAND POLICE V KEOGH HC AK CRI 2011-488-2 14 March 2011

[1] Mr Keogh pleaded guilty in the District Court to 11 charges of offering to supply methamphetamine, being in unlawful possession of a firearm and unlawful possession of ammunition, being in possession of cannabis and utensils and resisting the Police.

[2] His Honour Judge McNaughton sentenced Mr Keogh to three months home detention and imposed special post-detention conditions for six months beyond the end sentence date. The Crown now appeals to this Court against the sentences that the Judge imposed on the basis that they were manifestly inadequate.

Factual background

[3] The circumstances surrounding Mr Keogh’s offending were unremarkable. He was initially arrested for being in possession of a shotgun and ammunition. Upon his arrest the Police found him to be in possession of three “tinnies” and a bag of powder that was subsequently analysed and found to be consistent with being a cutting agent.

[4] The Police also uplifted Mr Keogh’s cellphone. When they obtained a search warrant to gain access to the text messages on the cellphone, they found that Mr Keogh was a drug dealer who had been offering to supply third parties with small quantities of methamphetamine. By way of example, he had offered to sell a quarter of a gram of methamphetamine on one occasion for $250; on another a customer was endeavouring to purchase half a gram from him for the sum of $400. The Judge noted that the amounts varied both as to price and weight, but that they were generally in the range between .01 of a gram through to half a gram.

[5] The Judge could not ascertain from the summary of facts whether all of the offers to supply drugs had come to fruition, but he concluded that if they had reached that state, a total of approximately 2 grams would have been involved.

The approach taken in the District Court

[6] The Judge recognised that the lead charge was that of offering to supply methamphetamine. Sentencing levels for dealing in methamphetamine are governed by R v Fatu.[1] That case confirms that Band 1 offending (involving between 0 and 5 grams of methamphetamine) will result in a starting point of between 2 and 5 years imprisonment. The Judge took the view that a starting point of 2 years imprisonment was appropriate on the methamphetamine charges.

[7] The Judge then accepted the Crown submission that an increase of 12 months was appropriate to reflect the fact that Mr Keogh was also found in possession of a shotgun and ammunition. He noted that the Courts regularly come across cases in which those involved in drug dealing are also found in possession of firearms. That is a seriously aggravating factor that must be recognised.

[8] The Judge therefore adopted a starting point of three years imprisonment on the lead charges. He made no further upward adjustment to reflect the remaining charges that Mr Keogh faced.

[9] The Judge noted that Mr Keogh had pleaded guilty at an early opportunity. Although his pleas were not entered as soon as he was charged, nevertheless they came as soon as the Police reduced the charges from supplying methamphetamine to charges of offering to supply methamphetamine. On that basis, and in accordance

with the then guiding authority in R v Hessell,[2] the Judge reduced the starting point

by one-third.

[10] He then reduced the sentence by a further four months to reflect Mr Keogh’s age, his lack of previous relevant convictions, the remorse that he had expressed in a letter to the Court and the positive signs that he had demonstrated for his rehabilitation. This led to a starting point of 20 months imprisonment, which meant

_{that a sentence of home detention became an option.}

[11] The Judge accepted that a sentence of home detention was appropriate having regard to Mr Keogh’s acknowledgement of guilt and the other factors that had led him to reduce the starting point by 4 months. In addition, the Judge noted that Mr Keogh had already served the equivalent of 6 months imprisonment. The Judge said that he had a slight concern about the address at which Mr Keogh proposed to serve his sentence of home detention. It seems that some concern had been expressed about the people who were living at that address. The Judge said that he was prepared to reduce the sentence of home detention further to reflect that factor. This led the Judge to impose the end sentence of 3 months home detention.

Decision

[12] I do not think that the starting points that the Judge adopted in respect of the lead charges can realistically be criticised. A starting point of 2 years imprisonment was clearly justified on the methamphetamine charges based on the sentencing levels prescribed by the Court of Appeal in Fatu. Both counsel agreed that an uplift of one year’s imprisonment was appropriate on the firearms charges. Neither can there be any question about the appropriateness of a one-third discount for the early guilty pleas based on the authorities as they then stood.

[13] I am also prepared to accept that the Judge had scope, albeit limited, to reduce the starting point further to reflect the issues of remorse and rehabilitation. I do not consider, however, that the lack of previous relevant convictions could realistically be said to be a mitigating factor. At 22 years of age, Mr Keogh was also probably just outside the range of being able to claim a discount for his youth. Nevertheless, rehabilitation is an important issue in drug-related offending. The Courts must, in appropriate cases, be prepared to give concrete recognition to that factor in order to encourage offenders towards rehabilitation. For that reason, I do not consider that the Judge erred in principle in deducting a further 4 months from the starting point to reflect those factors.

[14] It is at this point, however, that I consider that the Judge may have been led into error. He was bound, of course, to take into account the time that Mr Keogh had already spent in prison. By serving 3 months in prison, Mr Keogh had effectively

served a sentence of 6 months imprisonment. That figure should have been deducted from the end starting point of 20 months imprisonment, leaving an effective starting point of 14 months imprisonment before considering the issue of home detention.

[15] The conventional approach to sentencing in this area would have led to an end sentence of around 7 months home detention. I consider that in imposing a sentence of 3 months home detention, the Judge imposed an end sentence that was manifestly inadequate to reflect the seriousness of the offending in respect of which Mr Keogh had pleaded guilty. This involved drug dealing, the possession of firearms and ammunition and resisting arrest. In my view, that offending warranted a substantially greater end sentence of imprisonment than 3 months home detention.

[16] On a Crown appeal the Court is required to impose the least restrictive sentence that is open to it. I consider, in this context, that the least restrictive outcome for Mr Keogh was an end sentence of 6 months home detention.

[17] I therefore allow the appeal. I quash the sentence of 3 months home detention. In its place I impose a sentence of 6 months home detention on all of the charges to which Mr Keogh pleaded guilty. The post-detention conditions that the Judge imposed will remain unchanged.

Post-script

[18] Counsel have raised an issue as to whether Mr Keogh’s sentence was suspended from the point at which he filed his notice of appeal. If it was, it might be said that the fact that he has been subject to electronic monitoring means that he has simply been on a restrictive form of bail.

[19] I record that I have proceeded on the assumption that Mr Keogh has continued to serve the original sentence of home detention since the date upon which the Judge imposed that sentence. If that is correct, the sentence of home detention that I have just imposed will expire on 16 June 2011. If I am incorrect in that assessment, I reserve leave to the Department of Corrections and/or Mr Keogh to

apply to have the sentence of home detention varied to ensure that the sentence

_{accords with the statutory sentencing regime.}

Lang

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[1] _{R v Fatu [2006] 2 NZLR 72 (CA).}
[2] R v Hessell [2010] 2 NZLR 298 (CA).