R v Faapoi

[2017] NZHC 2969

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-009701

[2017] NZHC 2969

THE QUEEN

v

FARANI JUNIOR FAAPOI

Hearing:	1 December 2017
Appearances:	B Northwood for Crown J Mather for Defendant
Sentenced:	1 December 2017

SENTENCING NOTES OF VENNING J

R v FAAPOI [2017] NZHC 2969 [1 December 2017]

Solicitors:           Meredith Connell, Auckland Copy to:  J Mather, Auckland

[1]    Mr Faapoi you are for sentence this morning in this Court having pleaded guilty to three charges of corruptly accepting a bribe as an official. The maximum penalty in each case is seven years’ imprisonment.

[2]    In the course of an unrelated investigation the police learnt that contraband was being introduced into Mt Eden Prison with the assistance of an unknown prison guard. You were that prison guard.

[3]    You were employed by Serco in September 2014 to work at Mt Eden Correction Facility (MECF) and remained working there until you were suspended from duties on 29 June 2015. During this time you had contact with two prisoners of relevance to these charges, Mr Keil and Mr Sadler.

[4]    The first charge relates to a period between 8 May 2015 and 15 May 2015 when you agreed with Mr Keil to bring cigarettes into prison in exchange for money.

[5]    The second charge is between 16 and 21 May Mr Keil and you exchanged text messages regarding the delivery by his partner Ms Dufresne to you of “clothes” or “laundry” in return for $1,500. The “clothes” or “laundry” were code words for the contraband. You arranged to meet Ms Dufresne at Western Springs on 21 May 2015. Ms Dufresne gave you tobacco which you took into the prison. She also gave you

$1,300 and apparently held a further $200 for you. Ms Dufresne and Mr Keil pleaded guilty to their part in this offending.

[6]    The third count involved Mr Sadler. On 23 May 2015 he texted an associate, Mr Maaka saying he needed a couple of throw away phones and some cigarettes. Mr Sadler directed Mr Maaka to ring Jenny (Ms Dufresne) and drop the “clothes” off to her and that it cost “fifteen” (meaning $1,500). Mr Maaka met with Ms Dufresne and then texted Mr Sadler saying “clothes in the mail”. Mr Sadler then text you saying “The church has donated kupe for your services”. Ms Dufresne again met up with you to drop off the contraband. Again you were to be paid $1,500. Ms Dufresne and Mr

Sadler pleaded guilty to those charges. You deny taking phones or phone cards into the prison, but the text messages are consistent with that happening.

[7]    I record that there is a difference of opinion between the Crown and you on what was actually brought into the prison on these occasions. The Crown says, as I have noted, that the texts suggest the contraband included cell phones and phone cards as well as tobacco. You deny bringing in phone cards and cell phones. For present purposes, I do not consider the difference will affect the sentence I impose. Importantly the Crown accept there is no evidence that illegal drugs of any kind were brought in.

[8]    On 29 June you were stopped by the security at the prison. At that time you had tobacco in your possession.

[9]    In sentencing you I am required to have regard to the purposes and principles of the Sentencing Act 2002. The particularly relevant purposes in your case are to hold you accountable for the harm done to the community by your offending. I take the dishonesty of officials entrusted with a responsible position, such as a prison guard very seriously. In a similar case a Judge observed the importance in New Zealand of the trust we place in public servants, particularly police and those working in penal systems. You betrayed both your employer and the trust the public placed in you. You did so for personal gain.

[10]   Other relevant purposes are to promote in you a sense of responsibility for and acknowledgement of the harm you have caused, and to provide for your rehabilitation.

[11]   The particularly relevant principles are the gravity of the offending, your culpability and the seriousness of the offending. The seriousness is reflected by the maximum penalty of seven years. You will now be well aware of the seriousness of your situation and the offending and the potential difficulties your offending has caused other prison officers. Introducing contraband into prison makes life more difficult for honest prison officers.

[12]   I also take account of the effect of the offending on the community, and the importance of consistency in dealing with similar offences and similar offenders.

[13]   I refer to the sentences imposed on the co-accused in this case. In Mr Sadler’s case the Judge took a starting point of two years’ imprisonment and ultimately imposed a sentence of nine months’ imprisonment to be served cumulatively on the sentence Mr Sadler was serving. In Mr Keil’s case the Judge took a starting point of 18 months’ imprisonment and ultimately imposed 11 months’ home detention. In the case of Ms Dufresne the Judge took a starting point of two years’ imprisonment and ultimately imposed a sentence of 10 months’ home detention.

[14]   In your case the Crown submit a starting point of two years, nine months’ imprisonment should be applied. Mr Mather submits a starting point in the range of two years would be appropriate.

[15]   Apart from the sentences of your co-accused perhaps the most relevant similar case is that of R v Clarke.1 Mr Clarke was a corrections officer at Rimutaka Prison. For his personal gain, like you, he agreed to courier drugs (including methamphetamine and cannabis), a cell phone, cell phone charger and other contraband into prison. In exchange he received $4,000. Mr Clarke pleaded guilty to six counts of corruption. In his case the Judge took a starting point of three years’ imprisonment.

[16]   I regard your offending as less serious than that of Mr Clarke. As noted the contraband in your case was limited to tobacco, and possibly cell phones and pre-paid phone cards. There is no evidence you brought drugs into prison. That is an important distinction in my judgment. Also you are for sentence on three charges. Mr Clarke faced six charges.

[17]   You said through counsel’s submissions that the offending began while you were still a relatively new employee and under pressure from various prisoners. I accept from the material I read in preparation for trial that the prisoners employed a relatively sophisticated method of inducing you to assist them and once you were

1      R v Clarke. HC Wellington CRI-2009-085-7789, 2 June 2011.

hooked, threatened you from a relatively early stage. Of course that is no excuse Mr Faapoi. You should have reported the matters to your supervisors rather than allow yourself to be further swept up with these prisoners and the more serious involvement with them. I accept however that you are not a sophisticated person, and the prisoners realised your naivety and to a degree took advantage of that. Against that, you were willing to take money for your actions. You knew what you were doing.

[18]   Mr Faapoi I take as a starting point for your sentence two years, eight months’ imprisonment.

[19]   There are no personal aggravating factors. There are a number of personal mitigating factors, which the Court must take into account. At the age of 37 you are a first offender. You have not been before the Court before. You have had no difficulty obtaining employment and you are currently employed in one or perhaps two jobs. You have a letter of support from your employers. I am confident that you will be able to obtain employment in the future. There are a number of letters of support I have received on your behalf, some from people of standing in the community. Mr Faapoi you are entitled to a deduction of three months for your good previous record.

[20]   The pre-sentence report also says that you have insight into your offending and that you are truly remorseful. Your letter to the Court confirms that. You know you have let down your former employer, your colleagues, your family and the community, and you understand that.

[21]   I accept you are genuinely remorseful and for that I deduct a further three months from the sentence.

[22]   You are also entitled to a credit for your guilty plea. Although it came late in the piece I consider a reduction of approximately seven and a half per cent is appropriate. That leads to an end sentence of two years’ imprisonment.

[23]   With an end sentence of two years’ imprisonment the Court is directed to consider home detention. If drugs had been involved in your offending Mr Faapoi, I would not have considered home detention any further. Fortunately for you, they were

not. Mr Faapoi I have to say you are on a knife edge. The Crown say forcefully that the public interest in denouncing offending of this nature requires a sentence of imprisonment to be imposed. There is merit in that submission. Against that, I take into account your personal qualities that I have referred to, and the positive pre- sentence report which confirms you have a low likelihood of any further offending. I also bear in mind the purposes of rehabilitation and the necessity to impose the least restrictive sentence appropriate. For those reasons, and just on balance Mr Faapoi, I accept that you are a suitable candidate for home detention and that is the appropriate sentence in your case.

Result

[24]Mr Faapoi please stand.

[25]   Mr Faapoi on the three charges you have pleaded guilty to you are sentenced to 12 months’ home detention in each case. That is of course concurrent. That is on the following conditions:

(a)You are to serve the sentence at [redacted].

(b)You are to travel directly there this morning and await the arrival of a guard.

(c)You are not move to any new residential address without prior written approval of a probation officer.

(d)You are to attend assessment for any programmes directed by a probation officer and to attend and complete any counselling, treatment or programme as may be recommended by such assessment as directed by and to the satisfaction of a probation officer.

(e)You are not to communicate in any way with your former co-offenders.

[26]   You are discharged on the remaining counts in the charge list, namely charge 1, charge 2 and charge 6.

[27]Mr Faapoi you may stand down.

Venning J