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 prison on his behalf.

[7]      Ms Jeffrey also acknowledged that she had given her home address to Mr Hunt so that tobacco could be delivered there for onward transportation to the prison. The reason that the prisoner sought tobacco was that, as from 1 July 2011, prisoners were to be banned from using tobacco at all prisons throughout New Zealand.  As a consequence,  tobacco  no  doubt  became  a  valued  commodity  within  the  prison system.

[8]      Ms Jeffrey said that a package was subsequently delivered to her home.  She immediately realised that it smelt like cannabis.  She was familiar with the smell of cannabis because of her past experience as a nurse, when she treated patients who had consumed the drug.   She opened the package and found a green granular substance.   She concluded that she was being asked to transport cannabis into the prison, and was not prepared to do so.  She therefore flushed the cannabis down the toilet.

[9]      The relevant portions of the police interview read as follows:

KJ       Yep.  So basically um for the last couple of weeks um I have been seeing prisoner HUNT um in the medical unit.  Um, just due to his medical condition.  Um to nurse : prisoner relationship, nothing else.  Um, about last week I received a text message um saying “Hi how are you” um I didn’t know the phone number so I text back and asked who the person was.  At that point they came back and said that it was someone from work.  Um, I left it basically um and then a, probably about half an hour later another text came through um stating that it was HUNT and basically um I was a bit nervous about texting him um because I knew that it was illegal, um, but I

did anyway.  Um, basically he was asking me to bring in smokes ah for him. Basically it was coming up to the first of July and um there’s a smoking ban now in prison.  Um, basically I um ran with it and said that I would bring it in um basically because I was quite nervous and scared about what the prisoner could do if I said no.  Um at that point he said that he had a runner and um that he would give my number to the runner, um and they would drop off the smokes and that to me.  Um, I went along with this, um because I did feel scared and um, yeah.  Basically the runner did come to my house, um and gave me um some smokes basically.  I did undo them and smelt it and I could smell it was cannabis.  At that point I threw it out.  I did not tell HUNT that I’d thrown it out and just said that the runner hadn’t come and then it was left there.  He did kept texting me telling me that he loved me. Um, I went along and said, I said it back to him as well just due to being scared and that.  Um, and that was it basically, no more texts.

...

MD      Tell me about the other messages that you received.

KJ       Um, other messages I received was he was asking me to bring in smokes for him because it was coming up to the first of July with smoke free in our prison.  Um, he wanted it for himself and some mates of his in prison. Um, I sort of went along with it and um because basically I felt scared if I’d said no.  Um, basically I um said that I would bring in the smokes.  Um at that point he said that there was a runner that was gonna drop them off to me and um were they able to have um my cell phone number and that.  Um I said yes.  Um basically knowing that I wasn’t going to be bringing anything in but had to sort of go along with it um just because he was the prisoner and I just didn’t know what he would do.   Basically felt quite nervous and scared.  Um, so yeah he wanted me to bring in smokes.

...

MD      Okay.  When HUNT mentioned b ringing in the smokes and you’ve

agreed to it, tell me about what you actually text back to him.

KJ       I can’t remember the exact text.  I think I said something about um I’ll bring, I’ll bring them in the following day or something.  Um, I said, I asked too if there were gonna be any drugs in it.  Um he said no it was just smokes. And that’s all I text I think.

[10]     The prosecution case was bolstered by information the police obtained when they executed a search warrant on Ms Jeffrey’s cellphone service provider.   This produced a large number of text messages to and from Ms Jeffrey’s cellphone from a person who identified himself to her as Hunt.  The texts indicate that Ms Jeffrey and the prisoner were on familiar terms.   They also demonstrate that the prisoner was asking Ms Jeffrey to bring “smokes” into the prison.

Decision

[11]     One of the grounds of appeal was that the prosecution could not prove that the text messages were from a prisoner.  That submission has no substance, because it is clear from the tenor of the text messages that they were being sent from within the prison.  On one occasion Ms Jeffrey questioned the sender of the text messages to why he was sending a text message when officers were still there.  The response was that he was able to do so because all of the officers were “all n tha office”.  I have no doubt that Ms Jeffrey was in fact receiving text messages from the prisoner Hunt.

[12]     The main thrust of the appeal is that the prosecution could not prove an agreement to introduce tobacco into the prison.  Counsel for Ms Jeffrey submits that, before a conspiracy could be established, the prosecution had to prove that both parties to it were at idem in the sense that they both intended to carry out the same unlawful act.  He submits that the prosecution could not do this in the present case. He points out that the evidence makes it clear that Ms Jeffrey believed that she was being asked to deliver tobacco into the prison whereas, as events played out, she was in fact being asked to bring in cannabis.

[13]     I do not consider the law of conspiracy can be applied as if it was the law of contract.  In this case the texts make it clear that Ms Jeffrey was being asked to bring in “smokes”.  She took that to be a reference to tobacco, and I have 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.

[14]     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.  Like the Judge, I am satisfied beyond doubt that the evidence was sufficient to establish an agreement to introduce tobacco into the prison.  The Judge was therefore correct to find that charge proved beyond reasonable doubt.

[15]     The remaining charge relates to the text communications that Ms Jeffrey held with the prisoner Hunt.  The object of those communications was clearly to breach prison rules relating to the possession and use of tobacco within the prison.   A communication to a prisoner indicating a willingness to bring a banned substance into a prison must, in my view, amount to a communication that tends to prejudice the maintenance of the law.   It indicates a willingness to become involved in an enterprise that will result in prison rules and regulations being broken.

[16]     This charge was also proved beyond reasonable doubt.

The appeal against sentence

[17]     The appeal against sentence is based on information that was not before the Judge at the time of sentencing.   At that time, Ms Jeffrey sought a sentence of community detention.  The Judge noted that the seriousness of offending was such that Ms Jeffrey was fortunate not to receive a sentence of home detention.  She was prepared, however, to impose the sentence that Ms Jeffrey sought.  In addition, the Judge imposed the sentence of 400 hours community work.

[18]     I now have an  affidavit  from  Ms  Jeffrey confirming she is  five  months pregnant.  That information was not before the Judge, because Ms Jeffrey was not aware she was pregnant at the time she was sentenced.  Counsel for Ms Jeffrey has explained that the sentence of community work will require Ms Jeffrey to travel from her home in Te Kauwhata to the Hamilton area, and to serve her sentence of community work there.  This is likely to produce real difficulties for her in the latter stages of her pregnancy, and also during the period immediately following the birth of her child.   For that reason she now asks the Court to impose a more punitive sentence than that contemplated by the Judge.  In the circumstances, I am prepared to accede to that request.

[19]     I  therefore  quash  the  sentences  of  community  detention  and  community work.   In their place I impose a sentence of six months home detention.   That sentence is to commence as soon as the monitoring authorities are able to install the necessary equipment.

[20]     I impose that sentence because the material before the Judge confirmed that an electronically monitored sentence was available in respect of Ms Jeffrey’s home address where she lives with her husband.  Both she and her husband have consented in writing to the imposition of such a sentence, and there are no technical reasons why the sentence is not feasible.

[21]     I therefore impose a sentence of six months home detention on the following conditions:

(a)      Ms Jeffrey is to travel directly from the Court to 28 Rimu Street, Te Kauwhata, and there she is to await the arrival of a probation officer and monitoring company representative for the purpose of initiating a sentence of home detention.

(b)      She is to remain at that address for the duration of her sentence

(c)      She is not to be in possession of or consume alcohol or illicit drugs for the duration of the sentence.

(d)She is to undertake such counselling and rehabilitation programmes as may be directed by her probation officer.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Berman & Burton, Ellerslie, Auckland