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 after this text was sent, the associate spoke to the prisoner and asked him “who this person is that I have to get to”.  The prisoner replied “the misses of that fulla”.   The associate then asked how much it cost and the prisoner replied “fifteen”, meaning $1,500.

[10]     At about 3.18 pm that day, the associate called you on your cellphone.  You confirmed  to  him  that  your  name  was  “Jenny”  and  told  him  that  you  lived  in East Tamaki and would text the address.  You then did this.  At about 4.54 pm, the associate sent you a text advising you that he had arrived outside your address.  You replied that you would come out.  A short time later, the associate sent a text to the prisoner which read:

Clothes in the mail buda.

[11]     At about 8.00 pm the prisoner sent a text to the prison guard:

Poki … The church had donated kupe’ for your services!

[12]     Later that evening, you met up with the prison guard to drop off the items and then sent a text to the prisoner saying:

Prayers said, clothes folded.

[13]     There were several other conversations between the prisoner and the prison guard making arrangements to bring contraband into the prison.  These ended when the prison guard was apprehended coming into the prison with a quantity of tobacco and his employment was terminated.

Personal circumstances

[14]     You are 43 years old.  You have no previous convictions and are in stable, long-term employment.  The probation officer assesses you as having a low risk of re-offending and  a low  risk of  causing harm to others in the community.   The probation officer reports that you presented as remorseful.

[15]     In  December 2014,  you  say that  your partner was remanded  in custody. During one of your regular visits, he said to you “if anyone approaches you, please do what they want”.  You told the probation officer that you feared for your safety because of an earlier occasion when your house was ransacked and this is why you complied with the directions you were given.

Application for discharge without conviction

[16]     Mr Arman applies on your behalf for a discharge without conviction.   He submits that the gravity of your offending is low; you are remorseful; you have accepted responsibility for your offending and entered early guilty pleas; and you have no previous convictions.   He contends that the consequences for you of a conviction for these offences would be out of all proportion to the gravity of your offending because, if you are convicted, you could lose your employment and find it difficult to gain other employment.  He also argues that a conviction could cause you anxiety and depression.

[17]     You  have pleaded  guilty to  two  charges  of corrupting an  official.   Your offending  involved  a  degree  of  preparation  and  planning  and  you   wilfully

participated in it on two occasions.  These are serious offences.  Offending of this type tends to undermine public confidence in  the proper performance of public duties by officials and it also disrupts the management of the prison.   Mr Arman accepts  the Crown’s  submission  that  an  appropriate starting point  to  reflect  the gravity of your offending would be two to two and a half years’ imprisonment.   It cannot be said that the gravity of your offending is low.

[18]     While I accept that there is a prospect that a conviction for this offending could affect your current employment and prospects, it can be put no higher than that on the material before me.  There is nothing to indicate that the consequences of a conviction for you would be materially different to those that would normally be expected.

[19]     In summary, I am not persuaded that the consequences of a conviction in your case would be out of all proportion to the gravity of your offending. The threshold test is not met and it follows that I have no jurisdiction to discharge you without conviction. This application is accordingly declined.

Starting point

[20]     I turn  then  to  consider  the  starting  point.    There  are  comparatively few sentencing decisions dealing with offending of this nature and none closely comparable to the present case.  In setting the starting point, I take into account the need for deterrence for this type of offending.  However, I also take into account the relatively unsophisticated nature of the offending and the limited period over which it took place.

[21]     I consider that a starting point of two years’ imprisonment is appropriate taking into account all relevant circumstances in your case.

Personal mitigating factors

[22]     I accept that you are a person of otherwise good character. You are entitled to credit for the fact that you appear today as a first offender at the age of 43.  I accept

that you are remorseful and have accepted responsibility for your participation in this offending.  I allow a discount of four months for this.

Guilty plea

[23]     You have pleaded guilty at an early stage.  The Crown accepts that you are entitled to the full discount of 25 per cent for this.  This equates to a further five months discount and yields an adjusted indicative sentence of 15 months’ imprisonment.

Home detention

[24]     Because the indicated sentence is less than two years’ imprisonment, I am required to consider whether a community-based sentence should be imposed rather than imprisonment.   The Court must have regard to the desirability of keeping offenders in the community where reasonably possible and it must impose the least restrictive  outcome  appropriate in  the  circumstances.  Given  that  you  are a  first offender at the age of 43 and have a low risk of reoffending or causing harm to others, I have no doubt that a community-based sentence is appropriate in your case, despite the seriousness of the offence and the need for the sentence to meet the purposes of denunciation and deterrence.

Sentence

[25]     Ms Dufresne, would you please stand.

[26]     I enter convictions against you on both of the corruption charges.

[27]     I sentence you on each of these charges to seven months’ home detention.

These sentences are concurrent.

[28]     You are to travel directly from the Court to 36/7 Kelvin Hart Drive, East Tamaki and await the arrival of a Field Officer.  You are to reside at that address and not move to any new residential address without the prior written approval of a Probation Officer.

[29]     You are to notify a Probation Officer prior to commencing, terminating or varying any employment or voluntary work.

[30]     You are to undertake and complete any appropriate assessment, treatment or counselling as directed by and to the satisfaction of a Probation Officer.

[31]     You are not to possess, consume or use any drugs not prescribed to you.

[32]     You may now stand down.

M A Gilbert J