R v Le Frantz

[2013] NZHC 94

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-001790 [2013] NZHC 94

THE QUEEN

v

JODIE MAREE LE FRANTZ

Hearing:         7 February 2013

Counsel:         J M Webber for Crown

S J Zindel for Prisoner

Judgment:      7 February 2013

ORAL JUDGMENT OF COLLINS J [Review of sentence]

Introduction

[1]      The Crown has applied under s 80F of the Sentencing Act 2002 for an order cancelling Ms LeFrantz’s sentence of home detention and substituting that sentence with one of imprisonment.

Background

[2]      Ms   Le   Frantz   was   sentenced   to   nine   months’  home   detention   on

22 November 2012.  That sentence was imposed after she pleaded guilty to a charge

R V LE FRANTZ HC NEL CRI-2012-042-001790 [7 February 2013]

of blackmail.[1]   The offending involved her writing a letter to a victim, threatening to expose his infidelity unless he paid her $16,000.  Ms Le Frantz also sent the victim two threatening text messages.

[1] R v Le Frantz [2012] NZHC 3149

[3]      In sentencing Ms Le Frantz, Mackenzie J recognised her struggles with drug addiction.  His Honour settled upon a starting point of a prison sentence in the range of two years.   However, his Honour determined that home detention would serve Ms Le Frantz’s rehabilitative needs better than a period of imprisonment.   When sentencing Ms Le Frantz MacKenzie J warned Ms Le Frantz that if she did not comply with the conditions attached to the sentence of home detention she risked the prospect of her home detention sentence being cancelled and substituted with a prison sentence.

[4]      The conditions imposed upon Ms Le Frantz’s sentence of home detention were designed to force her to address her drug addiction problems.  The conditions included requirements that:

(1)       she reside at 28A Abraham Heights, Nelson;

(2)she not purchase, possess or consume alcohol or illicit drugs for the duration of her sentence;

(3)she undergo any testing or assessments required by the probation service to monitor her compliance with the condition that she abstain from purchasing, possessing or using illicit drugs;  and

(4)she attend and complete drug and alcohol counselling or treatment programmes specified by the probation service.

Breach of conditions

[5]      The  Crown  alleges  that  Ms  Le  Frantz  has  committed  nine  breaches  of conditions of her home detention.  Some of those breaches can be fairly categorised

as being comparatively minor breaches.  Examples of such breaches include failing to get written verification that she collected her groceries and leaving her address 12 minutes early to go to a supermarket.   More serious breaches of the conditions of Ms Le Frantz’s home detention include:

(1)       consuming Ritalin, a Class B controlled drug; (2)           consuming cannabis;  and

(3)being absent without excuse on 8 January 2013 when she failed to attend a drug and alcohol centre.

[6]      Ms Le Frantz has accepted the most serious of the breaches alleged by the

Crown.

Should the sentence of home detention be cancelled?

[7]      The sentence of home detention was imposed against the background of a pre-sentence report which emphasised doubts about Ms Le Frantz’s ability to comply with a community-based sentence because of her apparent lack of motivation to address her drug problems.  That concern was based upon Ms Le Frantz’s haphazard attendance at the Nelson Addiction Centre.  The Addiction Centre had recommended that Ms Le Frantz be forced into a period of drug abstinence through a custodial sentence.

[8]      It  is  apparent  that  Ms  Le  Frantz  has  ignored  the  warnings  given  by MacKenzie J.  She failed to take advantage of the opportunity afforded to her by the sentence of home detention.   Indeed, it is clear that Ms Le Frantz has seriously ignored the conditions of home detention by relapsing into drug use whilst serving her sentence of home detention and failing to adhere strictly to the conditions requiring her to be present at a specified address.

[9]      I am satisfied that Ms Le Frantz’s use of Ritalin and cannabis while serving her sentence of home detention constitutes serious failures to comply with conditions

of her home detention and that it is appropriate that I cancel the sentence pursuant to s 80F(1)(a) and (4)(c) of the Sentencing Act 2002.

What is the appropriate substitute sentence?

[10]     Section 80G(2) requires me to have regard to the portion of the original sentence imposed on 22 November 2012 at the time the sentence of home detention was cancelled.  By my calculations Ms Le Frantz’s sentence of home detention was scheduled to conclude on 21 August 2013.  This means that as of today’s date, six months and two weeks of the original sentence is unserved.

[11]     In  determining  what  substitute  sentence  should  be  imposed  I  have  had particular regard to the following factors:

(1)The seriousness of Ms Le Frantz’s offending.   I have no doubt that Ms Le Frantz’s offending was serious. A sentence of imprisonment in the  vicinity  of  one  year  would  have  been  justified  at  the  time Ms Le Frantz was sentenced on 22 November 2012;

(2)       The need to hold Ms Le Frantz accountable;[2]

[2] Sentencing Act 2002, s 7(1)(a).

(3)       The need to denounce Ms Le Frantz’s conduct;[3]

[3] Section 7(1)(e).

(4)       To deter others;[4]   and

(5)To impose the least restrictive sentence that I am able to in the circumstances.[5]

[4] Section 7(1)(f).

[5] Section 8(g).

[12]     I interpret s 80G(2) of the Sentencing Act 2002 as requiring me to have regard to the fact that Ms Le Frantz has not served six months and two weeks of the

sentence of home detention imposed by MacKenzie J.  The implication of s 80G(2)

of the Sentencing Act 2002 is that the substitute sentence should, if possible, equate with the balance of the original sentence.

[13]     When I combine the objectives of s 80G of the Sentencing Act 2002 with the purposes and principles of sentencing that I have previously referred to, I reach the conclusion that a sentence of eight months’ imprisonment is appropriate.

Conclusion

[14]     Ms  Le Frantz can  you  now stand.   The sentence of nine months’ home detention imposed by MacKenzie J on 22 November 2012 is cancelled.  A sentence of eight months’ imprisonment is imposed in substitution for the original sentence.

[15]     You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Nelson

Zindels, Nelson for Prisoner