R v Le Frantz [2012] NZHC 3149 (22 November 2012)

Last Updated: 12 January 2013

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-1790 [2012] NZHC 3149

THE QUEEN

v

JODIE MAREE LE FRANTZ

Counsel: E J Riddell for Crown

S J Zindel for Defendant

Judgment: 22 November 2012

_{SENTENCING REMARKS OF MACKENZIE J}

[1] Jodie Maree Le Frantz, you appear for sentence, having pleaded guilty to a charge of blackmail under ss 237 and 238 of the Crimes Act 1961.

[2] On 18 June 2012, you delivered a letter addressed to the victim at his place of work, leaving it with security people. In the letter you demanded that the victim pay you a sum of $16,000, otherwise you would tell the victim’s wife of his infidelity. You said that you needed the money for an operation. You set out your bank account details and demanded that $8,000 be paid by 29 June, and a further $8,000 by

20 July.

[3] At 5pm on 22 June, you texted the victim a text message again threatening to tell the victim’s wife everything. At 10.49am on 25 June, you sent another text

_{message saying that he had until the end of the day to pay or you would go and see}

R V LE FRANTZ HC NEL CRI-2012-042-1790 [22 November 2012]

his wife at home or her work and tell her everything. The victim reported the matter and you were apprehended.

[4] The effect on your victim has been described by him in the victim impact statement which he has read in Court today. He has taken that step of wishing to read his statement and has appeared in Court today. Notwithstanding that, I consider that in the circumstances, no further publicity than has already occurred of his name should be given, and I make an order suppressing the name of the victim.

[5] Turning to your personal circumstances, you are 34 years old and live in Nelson. You have three children. Your two eldest children have been removed from your care due to concerns about drug use, family violence in front of your children, and them being left home alone. Your eldest son (aged 15) has recently been returned to your care, with the approval of Child, Youth and Family. You are not employed. You are currently paying off fines and debt in relation to previous convictions.

[6] You have previous convictions for dishonesty and drug offending, but have not previously appeared for a similar offence. You are assessed as at medium risk of reoffending, primarily because of your drug use. Your risk of harm to the community is assessed as low but this could increase if you were to continue using drugs and also regained your driver’s licence. The pre-sentence report writer doubts your ability to comply with a community-based sentence due to your lack of motivation to address your drug problem.

[7] You do have a drug problem. You have been a client of Nelson Addiction Services since 2011. According to the report writer you only haphazardly attend appointments. Your continued drug use has led to the revocation of your driving licence. In the report writer’s view, you are not motivated to change. You are now required to attend monthly monitoring appointments, or your methadone will be suspended. The Addictions Service recommends a forced period of abstinence through a custodial sentence with conditions of release that require you to attend and address your alcohol and drug issues in either the community or a residential drug programme.

[8] The first issue for me in fixing an appropriate sentence is to decide what type of sentence should be imposed. Of the hierarchy of sentences set out in s 10A of the Sentencing Act, I am satisfied that the only available options are imprisonment or home detention. Your offending is too serious for consideration of any lesser type of sentence. Blackmail is a very serious offence, and the sentence must reflect that. Denunciation and deterrence are important sentencing principles in this case.

[9] Counsel have referred to a number of comparable cases. I have had regard to these, and to some other cases.[1] The starting points indicated by those cases, taken together with all other relevant factors, including your guilty plea, indicates that a sentence of imprisonment would be in the range of two years or less. That being so, a sentence of home detention is a possibility. Your counsel submits that home detention, or some lesser sentence, would be a sufficient response. As I have said, I

do not accept that any lesser response would be appropriate. Counsel for the Crown submits that an electronic sentence could be an appropriate outcome. Counsel notes that you have clear rehabilitative needs. I agree with that submission.

[10] Counsel for the Crown also submits that a sentence such as home detention will be appropriate only if the Court is confident that you will comply with it. It is that factor which has given me the most concern. The pre-sentence report writer considered a sentence of home detention but expressed the view that there were considerable sentence integrity concerns arising from your continued use of illicit substances while under the supervision of the Nelson Addictions Service.

[11] Despite that recommendation I have formed the view that a sentence of home detention is appropriate. You have a clear need to address your drug problem. I consider that your rehabilitative needs can be better addressed in the course of a sentence of home detention than would be likely to be possible during a short term of

_{imprisonment. I also need to consider the needs of your children, particularly your}

son. Your counsel has produced a letter from Child, Youth and Family, which reports that in the two months since he has returned to your care you have been proactive in assisting him to obtain work and are committed to ensuring his return to your care is successful. He is reported to have settled well and to be happier in your care. All that progress would be lost if you were sent to prison.

[12] I recognise that home detention may affect your ability to perform your parental responsibilities. I am confident that any issues can be resolved between your probation officer and Child, Youth and Family if they arise.

[13] You have an address which has been assessed as suitable for home detention. So, despite the rather gloomy prediction by the pre-sentence report writer as to your ability to comply, I have reached the conclusion that home detention should be given a try. You need to understand that you must comply fully with the terms that I impose. If you do not, then you face the risk that the sentence might be cancelled and you would have to go to prison. You need to understand that.

[14] I intend to impose conditions to address your drug and alcohol problems. These conditions are relevant in deciding the length of the term of home detention. That needs to be sufficiently long to enable progress to be made, and consolidated, in your rehabilitation. I consider that a term of nine months is required for that purpose. That is longer than the term of imprisonment which you would actually serve if I were to sentence you to prison. There is however no fixed mathematical relationship between a sentence of home detention and a sentence of imprisonment. If you make good progress within the terms of the sentence, to the extent that your rehabilitation needs had been met as far as possible within that time, there would be an ability to review the position at a later stage.

[15] The conditions I impose will be hard for you. They will require you to make a real effort to address your drug issues. They are intended to assist in your rehabilitation. You need to take the necessary steps to turn your life around. Unless you do, the future, for you, looks bleak. Only you can do this. Your future lies in your hands.

[16] You are sentenced to home detention for a term of nine months. I impose the following conditions:

(a) To report to Community Probation immediately after sentencing, then travel directly to 28A Abraham Heights, Britannia Heights, Nelson, and await the arrival of a probation officer and security officer.

(b) To reside within the monitoring boundaries of 28A Abraham Heights, Britannia Heights, Nelson, and not to move address without the prior written approval of a probation officer for the duration of the sentence.

(c) Not to purchase, possess or consume alcohol or illicit drugs for the duration of home detention.

(d) To undergo any testing or assessment required by the probation officer to monitor compliance with that condition.

(e) To attend and complete any recommended counselling or treatment, including inpatient or residential treatment for the abuse of alcohol and other drugs, to the satisfaction of the probation officer and the programme provider.

(f) To attend and complete any counselling, programme or treatment to address identified offending behaviour directed by the probation officer, to the satisfaction of the probation officer and programme provider.

(g) Not to contact your victim or any member of his family without the prior written approval of the probation officer.

[17] The standard post-release conditions will apply, for a period of six months.

“A D MacKenzie J”

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[1] R v Booth HC Hamilton T024112, 4 February 2003; R v Takao HC Rotorua CRI-2004-087-227,

29 April 2005; R v Hulme [2012] NZHC 1766; Currie v R [2011] NZCA 624; R v Thomas CA138/05, 6 July 2005; R v Milne HC Nelson CRI-2010-042-1429, 22 July 2010; R v Shepherd HC Hamilton CRI-2010-019-7285, 30 May 2011; R v Lynch HC Invercargill CRI-

2010-025-3014, 14 December 2010; R v Dyson HC Auckland CRI-2008-044-5176, 21 April

2009; R v Lala HC Auckland CRI-2006-092-16442, 8 March 2007; R v P CA151/94, 14 July

1994.