R v Dufresne - [2017] NZHC 1082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-009701 [2017] NZHC 1082

THE QUEEN

v

JENNY SHARON DUFRESNE

Hearing: 23 May 2017

Appearances:

B R Northwood for Crown
A Arman for Prisoner

Judgment:

23 May 2017

SENTENCING NOTES OF GILBERT J

Solicitors/Counsel:
Meredith Connell, Auckland
A Arman, Barrister, Auckland

R v DUFRESNE [2017] NZHC 1082 [23 May 2017]

Introduction

[1] Ms Dufresne, you appear for sentence having pleaded guilty to two charges of corruption of an official contrary to s 105(2) of the Crimes Act 1961. The first charge is for corruptly giving a bribe to a prison officer with intent to influence him in his official capacity to introduce unauthorised items into prison. The second charge is that you corruptly agreed to give a bribe to the same official for the same purpose. The maximum penalty for each of these offences is seven years’ imprisonment.

Facts

[2] Your offending came to light as a result of a police investigation code-named Operation Sylvester that commenced in early 2015 into suspected methamphetamine drug dealing activities involving three main targets, all patched members of the Head Hunters gang. During the course of this investigation, the police obtained a number of surveillance device warrants. From analysis of intercepted data, it became apparent that contraband was being introduced into Mt Eden Prison by inmates using a particular cellphone and the assistance of a prison guard who used a number of aliases including “Poki” and “Minister”.

First charge

[3] On 16 May 2016, a prisoner sent a text to an external contact:

Can’t talk but can you please give those 10 50g and 500 to Jenny, 027 627
527 and text when she's received them. Send me an account to put money int. Cheers.

[4] You are the “Jenny” referred to in this text. After various other texts, the

prisoner messaged the prison guard on 21 May 2015:

Yep! Your clothes are ready. Laundrys waiting 4 you to grab them … Jenny
0275 627 527. Tell her your names Poki … p.

[5] The prisoner then sent you a text message:

Hey … The minister will grab the property 2nite from you, is that okay? And
$1,300. Hold the otha $200 until D’ chats in the morning … Is that laright? His names Poki …

[6] The prison guard sent you a text at about 7.21 pm on 21 May 2015 and you arranged to meet him at Western Springs by the race track and Ponsonby rugby fields. The transaction was completed at that time.

Second charge

[7] On 23 May 2015, another prisoner used the same cellphone to send a text to an associate. A short time later, the associate called the prisoner and asked if he needed anything. The prisoner replied “a couple of throw away phones and some ciggies”.

[8] The following day, the prisoner sent a text message to the same associate saying:

Brotha’! Ring Jenny 0275 627 527. Drop clothes off to her when you're
ready, Brotha’!

[9] Soon…

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 R v Dufresne

Details

AGLC: R v Dufresne [2017] NZHC 1082
Case: [2017] NZHC 1082
Decision Date: 23 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Jenny Sharon Dufresne appeared for sentencing following a guilty plea to two charges of corruption of an official under section 105(2) of the Crimes Act 1961. The charges related to corruptly giving a bribe to a prison officer to introduce unauthorised items into prison and agreeing to give a bribe for the same purpose. The maximum penalty for each offence was seven years’ imprisonment.

The legal issues before the court were whether the consequences of a conviction would be out of all proportion to the gravity of the offending, and if so, whether a discharge without conviction was appropriate. The court also had to determine an appropriate starting point for the sentence, considering the need for deterrence and the relatively unsophisticated nature of the offending. Additionally, the court considered personal mitigating factors such as Dufresne's otherwise good character, remorse, and acceptance of responsibility. The court further had to decide whether a community-based sentence, such as home detention, was appropriate given Dufresne's low risk of reoffending and the seriousness of the offence.

The court found that the gravity of Dufresne's offending was not low, and the threshold test for a discharge without conviction was not met. The court set a starting point of two years’ imprisonment but reduced this to 15 months, taking into account Dufresne's good character, remorse, early guilty plea, and low risk of reoffending. Given the indicated sentence was less than two years, the court considered a community-based sentence appropriate. Dufresne was sentenced to seven months’ home detention for each charge, to run concurrently, with conditions including residence at a specified address, notification of employment changes, and prohibition on drug use.

The court ordered Dufresne to travel directly to her specified address upon release from court and follow conditions for home detention. These included not moving without prior written approval from a Probation Officer, notifying a Probation Officer of any employment or voluntary work changes, and undertaking assessments or treatments as directed by a Probation Officer. Dufresne was also prohibited from possessing, consuming, or using any drugs not prescribed to her.

Orders