Jeffrey v Police - [2012] NZHC 2927

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-29 [2012] NZHC 2927

KIM MARIE JEFFREY
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 6 November 2012

Counsel: R McKelvin for Appellant
R Annandale for Respondent

Judgment: 6 November 2012

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

KIM MARIE JEFFREY V NEW ZEALAND POLICE HC HAM CRI-2012-419-29 [6 November 2012]

[1] Ms Jeffrey was found guilty in the District Court on two charges laid under the Corrections Act 2004.[1] The first was a charge of conspiring with a prisoner to cause tobacco to be brought into a prison intending that it should come into the possession of the prisoner.[2] The second was that she held a communication with a prisoner inside a prison facility that might prejudice the maintenance of the law.[3]

[1] New Zealand Police v Jeffrey DC Huntly CRI-20123-024-38, 28 March 2012.

[2] Corrections Act 2004, s 141(1)(e).

[3] Crimes Act 1961, s 310 and Corrections Act 2004, s 141(1)(a).

[2] On 24 May 2002, Judge Burnett sentenced Ms Jeffrey to six months community detention and 400 hours community work.[4] Ms Jeffrey now appeals to this Court against both conviction and sentence.

The appeal against conviction

[4] Police v Jeffrey DC Hamilton CRI-2012-024-38, 24 May 2012.

[3] The nub of the appeal against conviction is that the prosecution was unable to prove that Ms Jeffrey was party to a conspiracy with the named prisoner to carry tobacco into the prison. In order to understand this submission, it is necessary to say something further about the facts underlying the prosecution.

The facts

[4] Ms Jeffrey was a nurse at the Spring Hill Correction Facility. She attended at the prison five days a week to attend to the medical needs of prisoners. The prison authorities became concerned about Ms Jeffrey’s conduct after they became aware of a letter written by a prisoner to Ms Jeffrey in terms they considered to be inappropriate. No formal action, however, was taken as a result of this incident.

[5] Subsequently, however, the authorities became concerned that Ms Jeffrey might be associating in an inappropriate manner with a prisoner by the name of
Gogo Hunt. As a consequence, the police interviewed Ms Jeffrey on 12 July 2011.

The interview was recorded on DVD, and a transcript of the interview was produced as an exhibit at the hearing in the District Court.

[6] During the course of the interview, Ms Jeffrey acknowledged that for some considerable period she had been the owner and operator of a cellphone having the number 021 215 2861. She further acknowledged to the interviewing officer that, shortly before 1 July 2011, she had received a text on her cellphone from a person who identified himself as Mr Hunt. At that time he was a prisoner at the Spring Hill Correction Facility. She acknowledged receiving further text messages from this person, whom she believed throughout to be Mr Hunt. These culminated in her agreeing to bring tobacco into the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeffrey v Police

Details

AGLC: Jeffrey v Police [2012] NZHC 2927
Case: [2012] NZHC 2927
Decision Date: 6 November 2012

CaseChat Overview and Summary

Ms Jeffrey appealed against both her conviction and sentence. The appeal against conviction was that the prosecution could not prove that Ms Jeffrey was party to a conspiracy with a named prisoner to carry tobacco into the prison. The appeal against sentence was based on information that was not before the District Court Judge at the time of sentencing. This was that Ms Jeffrey was pregnant, and the sentence of community work would produce real difficulties for her in the latter stages of her pregnancy, and also during the period immediately following the birth of her child.

In respect of the appeal against conviction, the court found that the text messages made it clear that Ms Jeffrey was being asked to bring in "smokes". She took that to be a reference to tobacco, and the court had no doubt that the sender of the message intended her to believe that was the case. The person who sent the message was no doubt concerned that if he asked Ms Jeffrey to bring in cannabis, she would have declined. In reality, the agreement between the two parties was that Ms Jeffrey would bring tobacco into the prison. She was not to know that the real intention of the sender of the text message was to substitute cannabis for tobacco. In respect of the remaining charge, the court found that a communication to a prisoner indicating a willingness to bring a banned substance into a prison must, in the court's view, amount to a communication that tends to prejudice the maintenance of the law. It indicated a willingness to become involved in an enterprise that will result in prison rules and regulations being broken.

In respect of the appeal against sentence, the court found that the sentence of community work would produce real difficulties for Ms Jeffrey in the latter stages of her pregnancy, and also during the period immediately following the birth of her child. The court therefore imposed a sentence of six months home detention on certain conditions.

Orders