R v Sadler
[2017] NZHC 2903
•24 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-004-009701 [2017] NZHC 2903
THE QUEEN
v
TRAVIS JAMES SADLER DUANE ROGER KEIL
Hearing: 24 November 2017 Appearances:
B R Northwood for Crown
T A Fitzgibbon for D R Keil
S R Lack and R M Mansfield for T J SadlerJudgment:
24 November 2017
SENTENCING BY PALMER J
Solicitors/Counsel:
Meredith Connell, Auckland
Public Defence Service, Auckland (T Fitzgibbon)
R M Mansfield and S R Lack, Barristers, Auckland
R v SADLER AND KEIL [2017] NZHC 2903 [24 November 2017]
Introduction
[1] Mr Travis Sadler and Mr Duane Keil have been charged with corruption and bribery of a Serco guard at the Mt Eden Corrections Facility, under s 105(2) of the Crimes Act 1961. They pleaded guilty and were convicted on 24 and 26 October 2017. The offence of corruption and bribery of an official carries a maximum sentence of seven years’ imprisonment.
[2] Three other defendants were also charged in relation to this offending.
Ms Dufresne pleaded guilty to two charges and was sentenced on 23 May 2017. The charges against another defendant were dismissed. Mr Faapoi, the prison guard, pleaded guilty to six charges and comes up for sentencing on 1 December 2017.
[3] I am to sentence Mr Sadler and Mr Keil today. I will do that in four parts:
(a) First, I mention the purposes and principles of sentencing.
(b) Second, I go through what happened here, in general terms.
(c) Third, I set a starting point for sentencing each offender based on the offending here compared with other cases.1
(d)Fourth, for each offender, I consider any adjustments for aggravating or mitigating factors based on personal circumstances or guilty pleas.
Part 1 Approach to sentencing
[4] Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002 (the Act). For offences of this nature, the Court of Appeal has emphasised the importance of deterring offenders from committing similar offences in the future.2 In addition I have particular regard to the
purposes of:
1 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
2 Ram v R CA23/94, 16 March 1994.
(a) holding offenders accountable for the harm done to the community;
(b)promoting in the offenders a sense of responsibility for, and acknowledgement of that harm;
(c) protecting the community; and
(d) promoting your rehabilitation and reintegration.
[5] I am also required to take into account principles of sentencing such as:
(a) the gravity of the offending, the degree of your culpability and the seriousness of the offending;
(b)the importance of consistency in dealing with similar offenders committing similar offences in similar circumstances;
(c) the effect of the offending on the community; and
(d)the requirement that I must impose the least restrictive sentence appropriate in the circumstances.
Part 2 What happened?
[6] Now, I outline the facts of what happened, as revealed through the summaries of facts agreed by the parties, supplemented by joint memoranda.
[7] In 2015, Mr Keil and Mr Sadler were in custody at Mt Eden, then run by Serco. In May 2015 Mr Keil was on remand awaiting sentence for dishonesty and drug- related charges. On 21 May 2015 Mr Sadler was remanded in custody after breaching parole conditions. At the same time, the Police were investigating Mr Sadler and two other patched members of the Head Hunters gang for drug dealing activities. They obtained surveillance device warrants which revealed contraband was being smuggled into Mt Eden with the assistance of Mr Faapoi, a Serco prison guard. Three separate transactions form the basis of the charges against Mr Sadler and Mr Keil.
Mr Keil
[8] In Mt Eden, Mr Keil was approached by fellow inmates who asked him to contact his partner, so she could receive instructions from others. Mr Keil did so. He kept track of requests from inmates on a particular cell phone. He knew his partner was to pick up money and tobacco for delivery to Mr Faapoi and that Mr Faapoi would pass the tobacco on to inmates. There were coded text messages on 16, 18, 19 and 21
May 2015 to that effect, regarding the delivery by his partner to Mr Faapoi of “clothes” or “laundry” in return for $1,500. Mr Faapoi and his partner then arranged to meet at Western Springs by the race track and Ponsonby rugby fields about 7.21 pm on 21
May 2015. His partner gave Mr Faapoi tobacco which he took to the prison. She paid him $1,500. Mr Keil, Ms Dufresne (Mr Keil’s partner) and Mr Faapoi were all charged and pleaded guilty in relation to this offending.
Mr Sadler
[9] On 23 May 2015 Mr Sadler used the same cell phone number as Mr Keil to text and speak to an associate, Mr Maaka, saying he needed a couple of throw-away phones and some cigarettes. The following day Mr Sadler texted Mr Maaka saying to “Ring Jenny” and drop “clothes” off to her. Mr Sadler further explained Jenny was “the misses of that fulla” and it cost “fifteen” (meaning $1,500). Mr Maaka made arrangements with Ms Dufresne over the phone and she came out and met him when he arrived. Shortly after, Mr Maaka texted Mr Sadler saying “Clothes in the mail.” Mr Sadler then texted Mr Faapoi saying “Poki … The church has donated kupe’ for your services!”. Later that evening Ms Dufresne met up with Mr Faapoi to drop off the cell phones and tobacco. Mr Faapoi was to be paid $1,500. Afterwards, Ms Dufresne texted Mr Sadler saying “Prayers said, clothes folded”. This was the first
transaction which is the subject of a charge against each of Mr Sadler, Ms Dufresne and Mr Faapoi, to which each pleaded guilty.
[10] A further series of texts on 1, 5, 7 and 18 June between Mr Faapoi, known as Poki or Minister, and Mr Sadler, continued to arrange for contraband to be taken into the prison, or “clothes” to the “laundry”. Mr Sadler’s second transaction involved a text exchange between him and Mr Faapoi on 23 and 24 June 2015 about picking up
more “laundry” – tobacco in this instance – the following week. The nature of the bribe agreed by Mr Sadler to be given to Mr Faapoi is not known. On 29 June
Mr Faapoi was apprehended attempting to smuggle contraband tobacco into the prison. His employment was suspended and terminated. No more calls were made between the parties. In relation to this offending Mr Faapoi and Mr Sadler have both pleaded guilty.
Part 3 The starting points
[11] New Zealand is one of the least corrupt countries in the world as measured by a variety of international surveys. The courts here do not take charges under s 105 lightly. As the current President of the Court of Appeal said in sentencing a prison officer for smuggling contraband into prison, it is “essential for public order that we can trust our public servants”, particularly those working in the police and penal system.3 The point is just as important for employees of private companies contracted to work in the prison system. And it is important for those tempted to bribe as well as those tempted to be bribed. Such corruption undermines the punitive and rehabilitative mechanisms of the Corrections system and erodes public confidence in the ability of the entire justice system to keep communities safe and to enforce the rule of law. This illustrates the importance of the offence itself. The seriousness of its commission can be aggravated by such factors as premeditation and the sophistication of the offending.
[12] Perhaps it is comforting that there are few cases of such offending in New Zealand. Two, regarding defendants who have bribed (as opposed to those who were bribed), have some relevance:
a) In Ram v R in 1994, Mr Ram gave an intermediary $2,000, and promised another $1,000, in exchange for permanent residency stamp in his wife’s passport.4 The Court of Appeal reluctantly imposed a nine-month sentence
for consistency with another case.
3 R v Clarke HC Wellington CRI-2009-085-7789, 2 June 2011 at [7].
4 R v Ram CA23/94, 16 March 1994.
b) In Malyon v R in 1997, the subject of a search warrant opportunistically offered $5,000 found by the Police to the Police Christmas Club, for which he was sentenced to two years’ imprisonment.5
[13] In sentencing Ms Dufrense in relation to her two charges in this offending, Gilbert J adopted a starting point of two years’ imprisonment though, with discounts for her personal circumstances and guilty pleas, she was sentenced to seven months’ home detention.6
Mr Sadler’s starting point
[14] Mr Northwood, for the Crown here, seeks a starting point for sentencing of two years’ imprisonment for Mr Sadler. Mr Lack, for Mr Sadler, submits he must be considered less culpable than Ms Dufresne as he was simply a customer who came to the operation and one of the transactions was not completed. He submits a starting point of no more than 18 months should be adopted.
[15] Mr Sadler’s offending was pre-meditated and involved an attempt at sophistication through use of coded messages. The nature of the contraband smuggled in may not seem significant but the importance of the ability to use a cell phone in prison is not to be underestimated, especially in the context of Mr Sadler’s other offending that was underway at that time. The systemic effects of this offending on the justice system, and the payment of $1,500, are also not insignificant. I do not accept Mr Sadler’s offending was less serious than Ms Dufresne’s. He was involved in discussions about the offending spanning a month-long period. He apparently acted on behalf of others. He initiated the first transaction. I adopt a starting point for Mr
Sadler’s sentencing of two years’ imprisonment.
5 Malyon v R CA435/97, 18 December 1997.
6 R v Dufresne [2017] NZHC 1082.
Mr Keil’s starting point
[16] Mr Northwood seeks a starting point of 18 months’ imprisonment for Mr Keil. Ms Fitzgibbon submits a starting point of 15 to 18 months’ would be appropriate for Mr Keil.
[17] Mr Keil’s offending was also pre-meditated. The offending was similar in nature to that of Mr Sadler. But there was only one transaction and one charge, rather than the two faced by both Ms Dufresne and Mr Sadler. I agree that a starting point of 18 months’ imprisonment is appropriate for Mr Keil’s sentencing.
Part 4 Adjustments
Mr Sadler’s personal circumstances
[18] Mr Sadler, of Ngāti Porou, is aged 38. I have seen a report from the Department of Corrections which suggests he has a relaxed view of his offending but, with hindsight, recognises its seriousness. It says he does not appear motivated beyond his own needs and makes decisions without consideration of consequences for himself or others.
[19] Mr Northwood proposes the starting point for Mr Sadler be uplifted to reflect his previous convictions as well as his offending while serving a sentence, balanced by the recognition of the length of his existing sentence. Mr Lack and Mr Mansfield acknowledge an uplift is appropriate for being subject to a sentence at the time of the offending and for his previous conviction history. Mr Lack submits the uplift should be proportionate to the starting point and should not exceed one month.
[20] I agree an uplift for offending while serving a sentence and for previous convictions is warranted. I regard this as an adjustment for personal circumstances, rather than an aggravated feature of the offending itself; just as I would if Mr Sadler had committed this offence while serving his sentence on post-release conditions. Sentences of imprisonment are supposed to deter offenders from further offending, not provide an opportunity for it. Section 9(1)(j) of the Act explicitly provides that
previous convictions can be an aggravating factor. As the Court of Appeal has made clear over the years, an uplift for previous offending is justified on the basis of deterrence and, in some cases, protection of the public, because they indicate a tendency to commit the particular type of offence for which the offender is convicted.7
I consider the same can be true, in accentuated form, for offending while serving a sentence.
[21] Mr Sadler has 39 dishonesty convictions, including for obstructing the course of justice. For both factors together, neither of which I take into account otherwise, I uplift his sentence by six months. There are no personal mitigating factors.
Mr Keil’s personal circumstances
[22] Mr Keil, of Tūhoe, is aged 46. The Department of Corrections reports he felt pressured by other prisoners to ask his partner to do things for them that led to the offending. His risk of re-offending is currently assessed as medium and risk of harm to the community as low. He is currently unemployed. Corrections reports he accepts responsibility for his actions and is motivated to complete his programmes. It assesses his mother’s address in Thames as suitable for home detention. But Corrections understands this would prevent him completing the residential course he is currently engaged in at Te Ara Hou. Corrections suggests an alternative option would be for his sentenced to be delayed or for intensive supervision.
[23] Mr Northwood proposes an uplift to Mr Keil’s starting point of nine months to reflect Mr Keil’s offending while on remand to be sentenced for other offending, and for his 13 previous convictions for dishonesty offences. Ms Fitzgibbon accepts Mr Keil’s previous criminal history will attract a moderate uplift and submits three to six months would be appropriate. She submits the uplift should be similar to that proposed by the Crown for Mr Sadler. Ms Fitzgibbon also submits that Mr Keil has undertaken extensive rehabilitation while he was in custody and since his release – referring to certificates and reports he obtained during his previous sentence. These
include a report from September 2017 on Mr Keil’s honest progress in a drug treatment
7 Beckham v R [2012] NZCA 290, citing R v Casey [1931] NZLR 594 (CA) at 597 and R v Ward
[1976] 1 NZLR 588 (CA) at 591.
programme by Odyssey House. On release Mr Keil commenced a residential treatment programme at Te Ara Hou which he hopes to continue with.
[24] Mr Howard Thompson, AOD Counsellor has provided a helpful report under s 27(5) of the Act and attended today. I have also seen a letter from a firm offering Mr Keil a contracting arrangement when he is available to take up employment, and I have seen a letter from Mr Keil’s teenage children who tell how his illness of addiction meant he often didn’t turn up when he said he would and when he did he wasn’t really there. They say now he has got himself sorted and he is their cool dad again, a good guy who had lost his way. Mr Keil has the support of his whānau who attended today. His children say, in a letter to me, all their support will make sure that “he won’t get lost again, and he can continue to be there for the rest of us for the rest of our lives”. I am sure Mr Keil will want that too, for their sake as well as his own.
[25] If Mr Keil’s end sentence is under two years, Ms Fitzgibbon submits he should be sentenced to home detention. Mr Northwood recognises the Court may have jurisdiction to sentence Mr Keil to home detention rather than imprisonment. He says Mr Keil’s past criminal history counts against that but also says the material put before the Court should be taken into account in a positive way. The Crown does not have a position on home detention. Both sentences serve the principles of denunciation and deterrence. I need to identify which better qualifies as the least restrictive sentence appropriate in the circumstances.
[26] I agree that a proportionate uplift to reflect Mr Keil’s previous convictions would be six months.
Guilty pleas
[27] Mr Northwood submits that each defendant is entitled to a discount of around
10 per cent for pleading guilty which he says came late. Mr Lack submits Mr Sadler is entitled to a 20 per cent discount for his guilty plea given he had pursued a discharge and discussions only occurred after that. Ms Fitzgibbon submits Mr Keil’s guilty plea entitles him to a credit in the vicinity of 10 to 15 per cent.
[28] Both defendants were charged on 3 October 2016. They both pleaded guilty in the last week of October 2017, two weeks before the trial was due to commence. That timing was in the prisoners’ control. In these circumstances, I agree with the Crown a discount of around 10 per cent is warranted for each guilty plea – three months for Mr Sadler and two months for Mr Keil.
Home detention for Mr Keil
[29] My calculations of Mr Keil’s sentence length come out at 22 months, which make him eligible for home detention. Given the seriousness of the offending, I do not consider a lesser sentence can be appropriately imposed. But there is no probation available for home detention so it is recognised that the term can justifiably be less than that of imprisonment. On hearing of Mr Keil’s progress with Te Ara Hou’s residential course I consider it would be useful for Mr Keil to experience more of it. However, it lasts for another five months and I only have power to defer the start of home detentions by two months, under s 80W of the Act. Accordingly, in the interests of justice, I sentence Mr Keil to 11 months’ home detention, to commence on 24
January 2018. I consider that sentence appropriately reflects the overall totality of Mr
Keil’s offending.
Totality of Mr Sadler
[30] Finally, with respect to Mr Sadler I need to stand back and review the totality of the offending for which I am considering imposing a sentence of imprisonment on him. Section 85(2) Act states that “[i]f cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.” The same is true of successive sentencings of connected events or events successive but proximate sentencings for separate events.8 In 2016 the Court of Appeal said there was ample authority that an overall totality assessment should be made where an offender is already serving a term of imprisonment for separate offending and particularly where there is connection between the offending.9 In 1969
the Court of Appeal said the proper approach is to determine what the appropriate sentence would have been if all matters had been dealt with together.10 So I do need to assess the overall length of Mr Sadler’s sentences of imprisonment together to fairly reflect the totality of his offending.
[31] On 24 April 2017 Mr Sadler was sentenced for ten charges of: manufacturing at least one kilogram of methamphetamine; possession of methamphetamine and materials for its manufacture; possession of a pistol, two semi-automatics and two military style tactical rifles and ammunition; and participation in an organised criminal group.11 Mr Sadler was second in charge of the manufacturing operation. For those charges, he is serving a sentence of 18 years and two months’ imprisonment, with a minimum non-parole period of nine years. The charges on which I am sentencing Mr Sadler were detected in the course of the police investigation, while he was in prison for yet other offending, that led to these more serious charges.
[32] Mr Northwood submits that this should be taken into account in a cumulative sentence of three to six months’ imprisonment, additional to the existing sentence. Mr Mansfield and Mr Lack also submit the current sentencing justifies an end sentence of three to six months’, viewed cumulatively with the sentence he is currently serving. That would be effectively a cumulative uplift on that period of Mr Sadler’s existing sentence.
[33] The sentence length I would consider appropriate for this offending, standing alone, would be 27 months’ imprisonment. But this offending is connected in time to the offending for which Mr Sadler is already serving a sentence. I do not consider three to six months on top of the existing sentence gives an adequate view of the totality of the offending. Given its seriousness, the interests of consistency with those already sentenced, the other factors I have already mentioned, I consider the totality of Mr Sadler’s offending for which is he is currently sentenced and is now being sentenced, would be commensurate with an additional nine months’ imprisonment, on top of the 18 years and two months he is currently serving. I should say that I would
consider the same additional period would be appropriate if the existing sentence were up to three years less than it is now.
Sentences
[34] Mr Travis James Sadler, please stand. I order that, on each of the charges of corruption and bribery of an official, you are sentenced to imprisonment for nine months which is to be served concurrently with each other and cumulatively, on top of, the sentence which you are already currently serving. You may sit down. Thank you.
[35] Mr Duane Roger Keil, please stand.
(a) I sentence you on each of the two charges you face, of corruption and bribery of an official, to 11 months home detention, to be served concurrently with each other.
(b)On 24 January 2018, you are to travel directly to 114 Fenton Street, Thames, and await arrival of the Probation Officer and representative of the electronic monitoring company. You are to reside at that address and not move to any new residential address without prior written approval of a Probation Officer.
(c) You are not to possess, consume or use any alcohol or drugs not prescribed to you.
(d)You are to attend an assessment for alcohol/drug counselling and any other Departmental programmes, and attend and complete any counselling, treatment or programme as recommended by the assessment, or as directed by and to the satisfaction of a Probation Officer.
(e) You are to notify a Probation Officer prior to commencing, terminating or varying any employment or voluntary work.
[36] Thank you. You may sit down.
………………………….
Palmer J