R v Clarke HC Wellington CRI-2009-085-7789

[2011] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-085-7789

THE QUEEN

v

JOHAN EDWIN CLARKE

Hearing:         2 June 2011

Counsel:         D La Hood with H M Lanham for Crown

M Bott for Prisoner

Judgment:      2 June 2011

SENTENCING NOTES OF THE HON JUSTICE KÓS

Mr Clarke you may remain seated.

[1]      You appear before me today for sentence on six counts of corruption under s 105 of the Crimes Act 1961.

[2]      You pleaded guilty to these charges on 20 April this year.

[3]      You were, as we have heard, a corrections officer at Rimutaka Prison.  In that capacity you were assigned to high and medium risk units.

[4]      For your personal gain, Mr Clarke, you agreed to courier drugs (including, very  seriously,  methamphetamine  on  two  occasions),  a  cell  phone,  cell  phone

charger, and other contraband into the prison.

R v CLARKE HC WN CRI-2009-085-7789 2 June 2011

[5]      In exchange you received money and other items to a total value of about

$4,000.  I will detail your offending shortly.

[6]      Mr Clarke it is essential for public order that we can trust our public servants. Those working in the police and penal systems particularly.   You succumbed to temptation.  You betrayed the trust your employer and the public reposed in you to perform your duties as a prison officer honestly and faithfully.   You did so for nothing better than personal gain.

[7]      It is a very serious breach of trust.   It undermined the penal system.   It undermined the punitive and rehabilitative mechanisms of the corrections service. The Class A drugs that you brought into prison endangered your fellow officers and other  inmates.    The  cell  phone  and  associated  equipment  would  likely  have facilitated further criminal activity by inmates.

Details of offending

[8]      Your offending began in November 2008.   You agreed to bring drugs into prison at the request of Prisoner A.  You met A’s associate in a car park in Upper Hutt.  The associate gave you about an ounce of cannabis to take into the prison for A.  In exchange you received a TomTom GPS system.

[9]      Subsequently you met the associate again, in the same car park.  You were given an ounce of cannabis to take into the prison.   In exchange you received a Toshiba laptop.  At the time Prisoner A was serving a sentence imposed, at least in part, for drug offences.

[10]     I turn now to your actions in relation to Prisoner B.  He was imprisoned in respect of serious drug offences.   On four occasions you carried packages from prisoner B’s associates outside prison into prison.   On two occasions the drugs smuggled in by you included methamphetamine.  That is the most aggravating aspect of your offending.   You covered a security camera with a blanket to assist concealment.  You looked after B’s cell phone so it would not be found in the event of a search.

[11]     On the first and second occasions you carried cannabis into prison for B. One of those occasions involved about 4-5 ounces of cannabis.  You also transported a phone charger and two packets of cigarettes to B.  You were paid $700 each time for doing so.

[12]     The third occasion arose from a text discussion direct between you and B, using his phone in prison. As a result you met up with B’s associate.  She gave you a package containing between 5-10 grams of methamphetamine (which is a Class A drug)  cannabis  oil  (Class  B)  and  cannabis.    You  also  smuggled  in  a  Chinese takeaway meal, three CDs and a SIM card.  You were paid $950 for taking those items into prison.

[13]     Part of that payment was a reward for warning B that Corrections were aware that he had a cell phone with him in jail.  Prisoner B gave you his cell phone to look after in case he got caught. You minded that cell phone for him.

[14]     On the final occasion you met B’s associate before you began a night shift. You were given a package containing 5 grams of methamphetamine and 8 ounces of cannabis.  You were also given a cell phone, a meal of Kentucky fried chicken, some dental floss and some cough lozenges to smuggle in.  You were paid $500 and given three bottles of wine for doing this.

[15]     In all, you smuggled in at least 10 grams of methamphetamine, and at least

10 ounces of cannabis.

Impact of your offending

[16]     I have read the letter to the Crown Solicitor from the Chief Executive of the Department of Corrections.  He points out that your offending has been a gross and very serious breach of the trust placed in you as a Corrections Officer.  I agree with that assessment.   Behaviour of this sort erodes the confidence of the public in the ability of the Department to keep communities safe.   The presence of cell phones enables incarcerated criminals to continue being criminals.    Rehabilitative programmes in prison are a core responsibility for the Department.  Your actions in

transporting drugs and cell phones into prison have eroded the performance of that responsibility.

[17]  The Chief Executive also says that by introducing drugs such as methamphetamine into prison for payment, you have deliberately placed the safety of your colleagues and prisoners at risk.  He says that drug dependence fuelled by the availability of such drugs inevitably leads to disorder, violence and increased pressure on other staff to further facilitate that availability.

The pre-sentence report

[18]     The pre-sentence report tells me that you were born in South Africa and grew up in a good family.  You say, in that report, that you had an “awesome” childhood. You did well at school, and worked in the South African ambulance service.

[19]     You came to New Zealand in 2006, in part to give your kids a better chance. Your actions here have squandered the better chance that coming to New Zealand gave you, and it has imperilled the chance it gave your children.  I note that you are now separated from your wife.  I have read the letter which she has sent to Court, which Mr Bott handed up, which indicates there is still a good relationship between you.  You are currently undertaking part time study in information technology.  You have been doing some volunteer work for the Salvation Army and I recognise the presence of the Army here today in support of you.

[20]     The report states that you seek to explain your offending, in part, on the basis of  a  degree  of  intimidation  by Prisoner  B.    I  discount  that  explanation.   Your offending began with smuggling drugs and other items to Prisoner A.  There is no suggestion that inmate intimidated you.  Secondly, any intimidation by B was very passive and amounted to little more than fear on your part - because B knew your address and the number of children you have.  You did nothing about this alleged intimidation.  Thirdly, you did not report it to your superiors.  You did not seek other assistance.   Ultimately, your counsel accepts you were, or became, a willing participant.

[21]     It is concerning that the probation officer says that although you assert that you know that you “did wrong”, he was left with the “distinct impression” that you lack insight into your behaviour.  He says that you fail to appreciate the seriousness of your actions.  And that you fail to appreciate the associated breach of trust central to your offending.

[22]     The probation officer assesses your risk of reoffending as low.  I accept that assessment.  But it is concerning that the formation of relationships with anti-social persons was at the heart of your offending here.  There is a risk that you will resume that behaviour in the future.

[23]     You stand on a precipice here today, Mr Clarke.  You are going to go to jail. Your counsel acknowledges that, and it will come as no surprise to you that that will be your fate today.  It is clear from your career to date, working in the public sector, that you do have worthy aspirations and worthy intentions.  That is supported by the letter from Captain Miller of the Salvation Army that I received today.  If you have the true strength of character that your good upbringing should have given you, you will do your time and put this episode behind you.

Crown submissions

[24]     The  Crown  submits  that  denunciation  and  deterrence  are  particularly important in relevant sentencing purposes in this case.  The Crown points to the fact that your conduct was pre-meditated and repeated, involving six offences over approximately five months.   The Crown submits that the supply of drugs was particularly aggravating, given that both prisoners were serving sentences imposed for drug offending.  The Crown submits that your offending strikes at the heart of the prison system and undermines the punitive aspect of imprisonment sentences.

[25]     Mr La Hood today submitted that a starting point of no less than four years imprisonment would be appropriate in this case.

[26]     The Crown acknowledges your previous good character, lack of previous convictions, and the fact that you have pleaded guilty, albeit belatedly.  On that basis

the Crown submits that a discount from your sentence of no more than 15 per cent would be appropriate.

Defence submissions

[27]     I turn now to the defence submissions.   Mr Bott has spoken and written eloquently on your behalf.  I cannot imagine there is anything worth saying on your behalf that he has not said.

[28]     He has emphasised your good upbringing, your prior good character, limited gain, and deeply unfortunate present circumstances.   There are two points in his submissions I want to address particularly.

[29]     First, Mr Bott’s written submissions discussed the delays that have occurred in the indictment process.  Today, he has withdrawn those submissions.   I do find that your plea of guilty was belated.   You were arrested in October 2009, first arraigned November 2010 and pleaded guilty on 20 April this year, just two weeks ahead of the scheduled trial date.   Had your plea been offered at an earlier stage, potentially fewer charges, and reduced cost and delay, may have been achieved. You cannot expect the full discount applicable to an early plea.

[30]     Secondly, Mr Bott says that the probation officer’s observation that you “lack insight” into your offending is the product of continuing trauma.  Mr Bott says you are, in effect, a broken man.  I will come back to that submission.

Starting point

[31]     I will adopt as a starting point three years’ imprisonment for your offending, taken together in its totality.  I am going to tell you the reasons for my decision.

[32]     First,  I  take  all  your  offending  together,  but  start  with  the  most  serious offending, involving the two instances in which you transported methamphetamine into Rimutaka Prison.

[33]     Secondly, I accept the Crown submission that public officer corruption (in particular  involving  the  supply  of  methamphetamine  to  prisoners)  requires  a deterrent response.

[34]     That requirement subordinates the counter-consideration that the gain you made was modest.  That was a point made to me on about three occasions today by Mr Bott, but the gravity of your offending is not measured by the modest gains you made. The fact remains that you sought to profit by your breach of trust.

[35]     Thirdly, I have considered the previous authorities under s 105 (corruption). Your case is more serious than Song1  (18 months to two years), but it less serious than Nua2  and Field3  which both involved four years’ imprisonment.  I accept that none of these cases is closely analogous to your offending.

[36]     Fourthly, I note that on previous occasions when prison officers have been charged with transporting contraband into prison (cell phones, cigarettes and on one occasion, controlled drugs), they have been charged under s 141 of the Corrections Act 2004.   The maximum penalty under that section is a term of only 12 months imprisonment.    You  have  the  misfortune  to  be  charged  under  a  more  serious provision of the Crimes Act, for which the maximum penalty is up to seven years imprisonment.  But I am afraid you are not entitled to credit for the fact that a more severe prosecuting policy has been applied in your case.  That change in policy is entirely appropriate.  It is a fair warning to other correction officers that this sort of offending will be treated seriously.  Henceforth it is likely that engaging in this sort of conduct will result in a status change from warder to inmate.

[37]     Fifthly, by way of cross-check given the absence of comparable New Zealand authorities, I have considered overseas cases involving the importation of drugs into prisons by prison officers.  In the United Kingdom prison officers have been charged

either with possession of drugs with intent to supply, or an offence of misconduct in

1      IRD v Song HC Wellington, CRI-2008-485-158, 10 February 2009, per Mallon J.

2      R v Nua CA 106/01, 29 June 2001.

3      R v Field HC Auckland CRI-2007-092-018132, 6 October 2009 per Rodney Hansen J.

a public office.  The most analogous cases are McDade4 and Jibona.5   In the former case,  one  of  the  appellants  was  charged  with  misconduct  in  a  public  office, possession  of  a  Class A drug  (heroin)  with  intent  to  supply and  possession  of cannabis with intent to supply, and in that case Mr Clarke, the English Court of Appeal imposed a sentence of five and a half years’ imprisonment.  I accept that that case was a more serious one than yours.  In Jibona the defendant was a non-sworn prison officer, working as a healthcare officer.   He had smuggled 123 grams of cannabis resin into the prison, with a value in prison of about £1,500.   He also smuggled a bottle of whisky and 28 pills of zopiclone.  The facts of that case were unusual.  It was uncontested that the prison officer did not gain from the supply.  It was simply supply to a friend who was incarcerated.  In that case the officer received a sentence of two and a half years’ imprisonment.

[38]     Sixthly, by way of further cross-check, I note that had you been charged instead with supply of 5-10 grams of methamphetamine, as it would have been open to the Crown to do, you would have faced a sentence of three to four years’ imprisonment.6    That is the way in which drug-carrying prison officers in England seem to have been charged.

[39]     Finally, I note your counsel accepts that three years’ imprisonment is the

appropriate starting point for sentence.  So I am in agreement with your counsel.

[40]     Accordingly, the starting point for sentence on all charges in this case will be three years’ imprisonment.   Next I turn to the aggravating and mitigating factors relevant to you.

Aggravating and mitigating factors

[41]     The Crown accepts that there are no aggravating features applicable to you.  I

agree.

4      R v McDade [2010] EWCA Crim 249.

5      R v Jibona [2010] EWCA Crim 1390.

6      Being on the cusp of Bands 1 and 2 in R v Fatu [2006] 2 NZLR 72 at [34].

[42]     As to mitigating factors, I note the following:

[43]     You have no previous convictions, and have had a previously good character. You will receive credit for that.   I will discount the starting point by 10 per cent accordingly.

[44]     You have pleaded guilty.  You are entitled to credit for that.  But the Crown case was extremely strong, and your plea (as I have already found) was belated.  I will discount the proposed penalty by a further 15 per cent in respect of that consideration.

[45]     I am not satisfied that your response to your predicament was appropriately and truly remorseful.   I note the Probation Officer’s assessment that you fail to appreciate the seriousness of your offending and that you lack insight into your behaviour.  I do take into account Mr Bott’s submission of your explanation for that. In some cases Mr Clarke, a genuine manifestation of remorse - focused on the victim, rather than oneself - can justify further dispensation, but I do not find this to be such a case.

[46]     On the basis of those considerations, the discount to the starting point in your case would be 25 per cent.

Stand please.

Sentence

[47]     Mr Clarke, the sentence of this Court is that you be imprisoned for a term of two (2) years and three (3) months imprisonment.  That sentence is imposed on each of the six counts.

[48]     I make orders forfeiting to the Crown the TomTom navigation system and

Toshiba laptop, received as part of your offending.

[49]     Mr Clarke, I repeat, that you stand on a precipice.  You have fallen dreadfully from grace.  You must draw on the good values manifest in your upbringing to put the pieces of your life back together.  You will need to start that process very soon. The Court wishes you well in doing so.

You may now stand down.

Suppression application

[50]     The Crown has applied under s 140 of the Criminal Justice Act 1985 for permanent suppression of the names of Prisoner A and Prisoner B and their two partners. The Crown seeks no order in relation to any other Crown witness.

[51]     The defence abides the decision of the Court.

[52]   Having considered the Crown’s submissions, I agree that very special circumstances exist in this case given (1) the co-operation of those people in the inquiry, (2) the consequences of their co-operation in terms of reduced drug availability in prison, and (3) the potential risk to their safety.

[53]     I make the orders sought suppressing the publication of the names and any particulars leading to the identification of any prison inmate that was to be a Crown witness in this proceeding and of any persons closely associated with them.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Prisoner