Allan James Jensen v Steven Alan Lindner

[2007] ACTSC 92

ALLAN JAMES JENSEN v STEVEN ALAN LINDNER
[2007] ACTSC 92 (30 October 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 85 of 2007

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               30 October 2007

IN THE SUPREME COURT OF THE       )
  )          No. SCA 85 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:ALLAN JAMES JENSEN

Appellant

AND:STEVEN ALAN LINDNER

Respondent

ORDER

Judge:  Higgins CJ
Date:  30 October 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and the sentence imposed by the learned Magistrate be set aside and in lieu thereof a sentence of two months imprisonment commencing 23 August 2007 imposed.

1. The license disqualification of 24 months be confirmed.

1. In this case Mr Jensen had pleaded guilty before the Magistrates Court to an offence that he, on 13 June 2007, being a repeat offender, drove whilst disqualified.  It is apparent that his criminal history included a number of instances in which he had previously driven whilst disqualified and one could therefore understand why, absent special circumstances, his Honour Magistrate Lalor would have been minded to impose what could only be described as condign punishment by imposing a term of imprisonment for six months, or such other period as might have seemed appropriate, but six months would not be complained of as a response given the previous occasions on which Mr Jensen had been not only previously convicted, but, without going back too far, sentenced to imprisonment before for that kind of behaviour.

1. I am now informed, and I have admitted into evidence a statement which supports this, that, as of 28 April 2007, Mr Jensen attended upon police and rendered assistance by giving a statement which implicated a person in a very serious offence and that person has since been charged with offences arising as a result of that information.  What happened subsequently, of course, is another matter, but the person referred to has been committed for trial and he may or may not plead guilty in due course, but, whichever is the situation, Mr Jensen has indicated that should the person plead not guilty he is quite prepared to repeat his evidence in the Supreme Court.  I accept that he is doing that of his own volition and not just because, if he does not do so, he might lose some leniency that might otherwise be shown to him in respect of the matter that was before Magistrate Lalor. 

1. The assistance which he has given, and now proposes additionally to give, is relevant for a number of reasons, not only because it is of assistance to the prosecution in bringing to light a serious offence which of itself would argue for greater leniency than his Honour was able to display at the time when the matter came before him.  It also, to my mind, demonstrates that there is, perhaps, a degree of realisation on Mr Jensen’s part that offending behaviour is not the way to go in the future and indicates that he is intending to be more law abiding in the future.  That may not be a strong indication in this case but, nevertheless, it is some indication of it, as also is his promise to give assistance in the future.  In those circumstances it seems to me that I am justified in upholding the appeal on the basis there is fresh information.  Instead of the sentence of 6 months imprisonment imposed by the learned magistrate, and in the light of the assistance already given, I would reduce that sentence to 3 months dating from 23 August in this year. 

1. Further, I indicate that in the light of the assistance promised I further reduce that sentence so as to expire on 23 October 2007 and indicate that, if the assistance which was promised is forthcoming, that will be the sentence.  If it is not, then the sentence of three months could be considered to be a recommendation to an appeal court in accordance with the Crimes (Sentencing) Act.  That means that Mr Jensen will be free as of today and he will have a credit of seven days should the matter ever need to arise.  But I would hope that it would be unlikely that any occasion for that would ever occur. 

1. But, Mr Jensen, just remember this:  If you keep on committing the same offence the penalties get larger and larger.  If you did it again I do not know how anybody could save you from six to 12 months’ imprisonment.  I confirm, however, the disqualification of 24 months, so hopefully that does not arise.  That disqualification is to date from 23 August 2007.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:
Date:     30 October 2007

Counsel for the appellant:  Ms T Warwick
Solicitor for the appellant:  Paul Edmonds and Associates
Counsel for the respondent:  Mr A Doig
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  30 October 2007
Date of judgment:  30 October 2007