Keen v The Queen

[2017] NZHC 2196

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000067

CRI-2017-409-000068 [2017] NZHC 2196

BETWEEN

HINEMOA KEEN

Appellant

AND

REGINA Respondent

Hearing:	On the papers
Appearances:	R G Glover for the Appellant C J Bernhardt for the Respondent
Judgment:	11 September 2017

JUDGMENT OF NATION J

AS TO REQUESTED RECALL OF EARLIER JUDGMENT

[1]      In a judgment of 22 August 2017, I dismissed Ms Keen’s appeal against sentence for reasons explained in that judgment.   However, I anticipated that she would shortly be seeking parole on the basis that she wanted to be in an intensively supervised residential setting where she would be able to address underlying drug addiction problems that have been a significant factor in her extensive offending history.

[2]      Following the release of that  judgment,  the Crown  filed a memorandum suggesting that, because there had been an acknowledged mathematical error in the sentence imposed by the District Court Judge, the High Court should have corrected that  error  to  avoid  an  injustice  in  line  with  Court  of Appeal  judgments  which indicated this was necessary.  The correction would have required a reduction in Ms

Keen’s prison sentence of 2.4 months.

KEEN v R [2017] NZHC 2196 [11 September 2017]

[3]      On receiving that memorandum, I issued a minute acknowledging what the Crown was seeking and why, but said the Court of Appeal’s judgments were based on the premise that the correction would be required to avoid an injustice.

[4]      I indicated in my minute that, even where there was an error of the sort that had occurred here, there could be exceptional circumstances which would mean that normal injustice would not arise.

[5]      In my minute, I said:

[4]   In this case, to her real credit, Hinemoa Keen is seeking to address, with the assistance of intensive supervision and in a supportive residential setting, the personal issues, including her drug addiction, that have been the cause of so much previous offending and associated problems in her life.

[5]   In dismissing the appeal, I anticipated the Parole Board are likely to give her the opportunity to do this.   If that does happen, the uncorrected sentence, with its additional 2.4 months, would mean that she would hopefully be subject to oversight  from  the Parole Board and supportive supervision in the residential setting which she seeks for a little longer than would happen if the sentence is corrected in the way the Crown suggests.

[6]      I indicated in my minute that, if Ms Keen wanted the error corrected, I would do so but I asked her counsel to discuss my minute and the Crown’s memorandum with Ms Keen and to then file a memorandum with the Court advising whether Ms Keen seeks the recall and correction of my judgment in the way the Crown proposes.

[7]      On 7 September 2017, Mr Glover filed a memorandum with the Court.  He confirmed he had discussed my minute and the Crown’s memorandum with Ms Keen and she instructed that she agreed with my opinion as to why it might not be in her interests for an adjustment to be made.  Mr Glover confirmed that Ms Keen was not asking for my earlier judgment to be recalled.

[8]      Mr Glover also added that Ms Keen was “determined to succeed  in her

treatment and asks that the Court convey this to the Parole Board”.

[9]      Ms Keen is to be commended for the determination she has expressed and which she has demonstrated now in a further tangible way.

[10]     Against that background, I decline to recall my earlier judgment or to make any change to it.   A copy of this judgment is to be made available to the Parole Board.

Solicitors:

Rupert Glover, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.