Director of Public Prosecutions v Jansen; Director of Public Prosecutions v Jansen
[2017] VCC 1721
•17 November 2017 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-00595
CR-16-00600
Indictment No. C16105987
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOZEF MARIA JANSEN |
| and |
| REMCO JACOBUS JANSEN |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2017 (at Bendigo) | |
DATE OF SENTENCE: | 17 November 2017 (at Melbourne) | |
CASE MAY BE CITED AS: | DPP v Jansen; DPP v Jansen | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1721 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – arson for gain – obtain property by deception – traffick in a drug of dependence
Legislation Cited: Crimes Act 1958, s197(3) and (6), s81(1); Drugs, Poisons and Controlled Substances Act 1981, s71AC
Cases Cited: …
Sentence: …
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K Doyle | Solicitor for the Director of Public Prosecutions |
| For the Accused Jozef Jansen | Mr D Gray | Giorgianni & Lang |
| For the Accused Remco Jansen | Ms J Swiney | Struthridge Legal |
HER HONOUR:
1 Jozef Maria Jansen, you have been found guilty by way of jury verdict on one charge of arson for gain (Charge 1) and one charge of obtain property by deception (Charge 2).
2 Remco Jacobus Jansen, you have been found guilty by way of jury verdict on one charge of arson for gain and have pleaded guilty to one charge of traffic in a drug of dependence (Charge 3). The maximum penalty for arson for gain and trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for obtaining property by deception is 10 years’ imprisonment.
3 The prosecutor made application for a compensation order against you, Jozef Jansen, in the sum of $358,006.24, being payments that were made to you by an insurance company. The prosecutor made application in respect of both of you for the taking of a forensic sample. The amount of the compensation order was questioned and further inquiries were to be made. On the basis of further submissions, I am satisfied the amount sought is the amount paid out to you by the insurance company. You both opposed the making of a forensic sample order.
4 The arson for gain and obtain property by deception charges arose from a fire at the Junction Hotel at 4869 Calder Highway, Ravenswood, Victoria, on 9 June 2014. You, Jozef Jansen, owned the hotel with your wife for about nine years before the fire. Remco Jansen is your son. In 2013, you, Jozef Jansen, ceased operating the hotel, but you and your wife continued to live at the hotel which was placed on the market. You, Remco Jansen, also lived at the hotel for a period until approximately February 2014.
5 You, Jozef Jansen, and your wife, were in financial difficulties and were in arrears on the mortgage payments on the hotel. In January 2014, you, Jozef Jansen, had insured the hotel for the amount of $250,000 for the building and $50,000 for the contents. Prior to this, the hotel had not been insured. In May 2014, the bank issued default notices in relation to your business loan with an amount outstanding of $128,789.84 payable within 14 days.
6 You had taken a deposit from a purchaser who had paid 10 per cent of the agreed sale price of $220,000. Contracts had been drawn up. On 6 June 2014, the purchaser contacted Mrs Jansen and told her that he was withdrawing from the sale due to a VicRoads design overlay on the Calder Highway for the purposes of future expansion and widening of the Calder Highway. On the same day, Mrs Jansen reserved a room at the Moama Central Motel for the night of Monday, 9 June 2014. At some time prior to 9 June 2014, personal items, including a framed photograph and an antique clock, had been removed from the hotel. On 9 June 2014, you, Jozef Jansen, and Mrs Jansen, left the hotel and went to Moama.
7 In the late afternoon of 9 June 2014, there were SMS conversations between you, Jozef Jansen, and you, Remco Jansen. At about 8.30pm, you, Remco Jansen, left where you were living in Bendigo and travelled in the direction of the hotel. There were further telephone calls that took place. At 9.20 pm, an off-duty fire officer was driving past and saw that the hotel was well alight (Charge 1 – arson for gain).
8 There was evidence before the jury by way of SMS messages between the two of you, and later, telephone intercept material. The jury were clearly satisfied that you, Jozef Jansen, and you, Remco Jansen, were responsible for starting the fire. There was some difference in the evidence of the forensic experts called in respect of the fire but both agreed that the fire had started in the office area of the hotel. I am satisfied beyond reasonable doubt on the basis of the evidence of the forensic expert who investigated the fire on behalf of the insurance company that the point of ignition was a power board. The exact method by which the power board had been caused to ignite is not able to be discerned from the evidence.
9 You, Jozef Jansen, made a claim on your insurance policy on 10 June 2014. You received various amounts from the insurance company in respect of the damage to the hotel and accommodation costs. The payments that you received from the insurance company totalled $358,006.24. That is the amount of property you are said to have obtained by deception from the insurance company and is the subject of Charge 2.
10 The telephone intercepts revealed that you, Remco Jansen, were trafficking in cannabis in various amounts. Customers would contact you and you would instruct them to meet you at your residence or across the road at a McDonald’s outlet. The average price was $280 for an ounce. Based on the prices charged by you, cannabis seized from your premises on 16 October 2014 was worth approximately $6,000. That is the basis of Charge 3 of trafficking in a drug of dependence.
11 On the basis of SMS material and the telephone conversations between you, I am satisfied beyond reasonable doubt that you, Jozef Jansen, played the more dominant role in the offence of arson for gain. You clearly were the person who stood to directly benefit from the fire. Whilst I am also satisfied that Mr Remco Jansen played an active role in causing the fire, you were the person who had the capacity and wherewithal to plan the fire and then make the claim on the insurance company. I do not accept the submission made on your behalf, Jozef Jansen, that there was marginal, if any, distinction in the role of each of you in the offending of arson for gain.
12 In sentencing each of you, I have taken into account your personal circumstances, which were outlined by your counsel, and in oral and written submissions made on your behalf.
13 Jozef Jansen, you were born in Holland and migrated to Australia in 1982 with your wife and three children. Shortly after, very tragically, one of your children died. You worked with your brother as a carpenter and bricklayer. You then worked for yourself as a subcontractor installing shower screens. You were then involved for over twenty years in the building industry in your own business before buying the hotel.
14 You were unable to continue operating the hotel because of your health problems, including severe back pain. You are now 65 years old. You suffer from severe obstructive sleep apnoea. You have had coronary artery disease and have had coronary stents put in. You also have Type 2 diabetes.
15 You have no prior criminal history.
16 In sentencing submissions, your counsel conceded that arson is a serious offence. He submitted that general deterrence would be more relevant than specific deterrence, given that you had no prior criminal history and this offence occurred in the context of financial hardship. Your counsel also addressed the circumstances of the fire, acknowledging that any fire would pose danger to fire fighters but submitted there was little risk of this fire spreading, particularly given the time of the year and the location of the fire.
17 Your counsel relied on a number of mitigating factors, including the delay in the trial commencing. Your counsel submitted that your wife’s poor health, together with your inability to care for her, and your son’s inability to care for her would expose her to exceptional hardship. Your counsel submitted that it should also be taken into account that you and your wife have now lost all your assets. Some property had been frozen to a value of $62,000, which would be expected to be applied to any compensation order made. You and your wife have no other assets.
18 Your counsel submitted that whilst an immediate custodial sentence was within range, the non-parole period set should take into account your age, ill health and your wife’s ill health. He also submitted there should be substantial concurrency in relation to the sentences imposed for the two charges you face.
19 Material tendered from your general practitioner (Exhibit J2) confirms that you have a number of medical conditions. The writer of the covering letter says those medical conditions are reasonably well controlled with current medications, but he says, "Sentencing would have a significant impact on his physical and psychological health." The printout confirms your medical conditions as outlined by your counsel.
20 A letter from a consultant respiratory sleep and general physician confirms that you have severe obstructive sleep apnoea. That letter refers to there being a CPAP trial. A later letter from the same doctor confirms that you have responded well to the CPAP machine. I understand that you continue to use a CPAP machine. I have taken into account that that will make imprisonment more difficult for you.
21 The material tendered also included a personal reference for you. The writer of that reference has known you for four years and says that you are very dedicated to your wife to whom you provide considerable assistance. He says that you have become very popular and gained many friends in the area in New South Wales to which you moved after the fire.
22 Material was also filed at the plea hearing in respect to Mrs Jansen’s health (Exhibit J3). That material confirms that Mrs Jansen suffered a stroke in 2015 that left her with physical disabilities, including expressive dysphasia and left-sided hemiparesis affecting her left arm. It appears that she is unable to drive now and has been relying on you and your son, Remco, to provide her with assistance, including with medications. It appears that she is independent with her personal care and was described in that material as being quite fit for her age. It does appears that Mrs Jansen has some cognitive deficits.
23 Further material was tendered in Exhibit J4. That material consisted of a letter and discharge information confirmed that Mrs Jansen had unfortunately suffered a further stroke after the initial plea hearing. She was hospitalised, but appears to have recovered from that transient ischemia attack. The letter included describes her difficulties with dressing and other matters, and her distress and the separation she is facing from her husband and son. On the material provided, I am not satisfied that the difficulties likely to be faced by Mrs Jansen on the incarceration of her husband and son amounts to exceptional hardship.
24 You, Remco Jansen, were eight years old when you migrated to Australia with your family from Holland. After school, you worked as a builder and worked with your father. You also worked at the Junction Hotel behind the bar during the last years of its operation. You have had problems with your back and had an operation in 2013 to have discs repaired. You were on crutches in 2014 when you were interviewed by police but since that time your condition appears to have improved and you no longer rely on crutches. You lived at the hotel after the operation but moved to a house in Bendigo when you became more mobile.
25 You have two children, aged 11 and 13. You have an amicable relationship with their mother and regular contact with the children. You have been living with your parents after they moved to New South Wales. You have been a carer for your mother.
26 You have admitted a limited prior criminal history. In 2004, you appeared in court on driving offences. In 2001, you were placed on a three year suspended sentence for intentionally causing serious injury.
27 In sentencing submissions, your counsel accepted that arson is a serious offence and considered the primary sentencing considerations would be denunciation and general deterrence. Your counsel submitted it should be taken into account that you were not to make any personal gain through that offending. Your counsel submitted that your father had a more dominant role in this offending.
28 Your counsel submitted that it should be taken into account that the context of your drug trafficking offending was that you were on a low income with limited mobility and ongoing pain. You used cannabis for your own pain. Your counsel conceded that you had used cannabis before the operation and preferred cannabis for pain relief, rather than any opioid-based medication.
29 Your counsel submitted that in respect of the trafficking charge, your plea of guilty ought to be taken into account as an expression of remorse.
30 Your counsel said that you are in receipt of a carer’s pension in respect of your mother and are concerned about her wellbeing once you are incarcerated. I accept that will make imprisonment more difficult for you, but not to the same extent as it will for your father.
31 Your counsel submitted that given your limited prior history, your prospects for rehabilitation are strong and specific deterrence should have limited relevance in respect to the arson charge.
32 Your counsel submitted that the delay in this trial being reached also ought to be taken into account.
33 The prosecutor, in sentencing submissions, confirmed that you, Jozef Jansen, and Mrs Jansen, were in difficult financial circumstances at the time of the fire. He also agreed that Mrs Jansen’s health problems and your own health problems would make imprisonment more difficult. The prosecutor submitted that there should be some modest cumulation between the sentences on the charges of arson for gain and obtaining property by deception. The prosecutor submitted that there was some overlap, but there was discrete offending.
34 The prosecutor also accepted that you, Jozef Jansen, were entitled to credit for being at the age of 63 with no past criminal history. The prosecutor also submitted that your current financial position ought to be taken into account in a general sense.
35 Jozef Jansen, your counsel said that there should be no order for the taking of a forensic sample from you, as you had no relevant prior criminal history and there was minimal risk of you re-offending. Your counsel, Remco Jansen, also opposed the making of such an order and submitted that you had a lack of relevant prior criminal history and also, that the context of this offending should be taken into account.
36 The prosecutor submitted that the orders ought be made because of the gravity of the offending and submitted, in respect of you, Remco Jansen, that it should be taken into account that you previously received a suspended sentence for assault.
37 Arson is a serious offence. In this case, fortunately, the only people potentially exposed to danger were any firefighters. In this case, given the time of the year and the location of the property, there was little danger that the fire would spread into neighbouring houses or bushland. Because the fire was deliberately set, you had done your best to ensure that no person would be in the building at the time the fire occurred. There is also an absence of aggravating features, such as the fire being set for revenge or with the intention to cause harm to other people. It is also clear that the fire was set for the purposes of financial gain, rather than any predilection for lighting fires. I have taken all of those circumstances into account. Given the potential risk and the extent of the damage caused and the planning and deliberate nature of this offending, I consider this offending to be towards the mid-range of the offence of arson for gain.
38 It appears from the material provided in the Victorian Sentencing Manual, that it is relatively unusual for a court in Victoria to be sentencing for the offence of arson for gain. Clearly, general deterrence is a very significant sentencing consideration. The system of insurance of properties and legitimate claims as a result of fires would not be sustainable if people deliberately lit fires in order to gain the insurance money. As it is clear from this case, such offending can be difficult to detect. It is also important that you be appropriately punished. In respect of each of you, a term of imprisonment is clearly warranted for the purposes of denunciation, just punishment and general deterrence.
39 I accept that for you, Jozef Jansen, specific deterrence should not attract weight as a sentencing consideration. This offence arose out of particular circumstances to do with your economic circumstances. You and your wife were in difficulties financially and this was seen as a way out. It is unlikely that you will be in a position again to be tempted to offend in a similar way. You have no prior criminal history. I consider that your prospects for rehabilitation are very good. I have no doubt that the consequences of your folly in committing this offence have been brought home to you. You have lost almost all your assets as a consequence and will lose your liberty for a period of time.
40 I have taken into account that some of the money paid out by the insurance company will be recovered.
41 Remco Jansen, specific deterrence need not be given significant weight in sentencing you. You were actively involved in the arson offending, but stood to benefit indirectly rather than directly. It appears from the evidence in the trial that your parents have given you family support in the past, and there is no doubt that you would receive indirect benefit if they were financially better off.
42 I assess your prospects of rehabilitation as reasonably good. There is no suggestion that you would engage in arson again, but it is concerning that you have previously received a suspended sentence, but continued to engage in criminal behaviour, including arson and cannabis trafficking. It appears that you did not take that warning about breaking the law. Again, you no doubt will suffer personal consequences as a result of this offending, in that you have seen your parents’ assets reduced and placed them in a very difficult situation because of this offending.
43 Any trafficking in a drug of dependence must be strongly denounced. The proliferation of illegal drugs in the community causes great concern within the community and concerning consequences for individuals concerned. You were taking advantage of the weakness of others to make money to support yourself and your own drug taking and your own cannabis use. I accept from the material, that you were effectively a street-level dealer in cannabis of relatively modest proportions. Some modest cumulation in sentence is warranted because of that additional offending.
44 You are entitled to a discount in sentence because of your plea of guilty. I do not accept that that plea of guilty is an expression of remorse. I do accept that your plea of guilty had some utilitarian benefit and also, is in acceptance of your responsibility or this offending.
45 Jozef Jansen, in sentencing you, I have taken into account your previous good character and your good prospects for rehabilitation, together with your more advanced age, both in setting the head sentence and in setting a lower non-parole period than I otherwise would have. I have also taken into account that your own health difficulties will cause imprisonment to be more difficult for you. As I have said, I have taken into account that the situation with your wife, your concern for her and distance from her will make imprisonment much more difficult for you.
46 Remco Jansen, I have taken into account that you also will have some concern about your parents, particularly your mother, and that will make imprisonment more difficult for you.
47 Jozef Jansen, I have made orders for some cumulation in sentence between the sentences on the charges of arson for gain and obtaining property by deception. Clearly, the two offences are interlinked but you set the fire in order to make the claim but, additionally, you went ahead and made the claim on the insurance company. There is some discrete offending involved.
48 In respect to each of you I have taken into account the delay between when the police began interviewing you and the matter coming to trial. The matter has been hanging over your heads and you have not reoffended in that period.
49 Although the nature of this offending was serious, I do not consider that either of you has a history of offending or likelihood of further offending, which would justify the taking of a forensic sample from you. The application for the taking of a forensic sample from each of you is refused in each case.
50 Jozef Jansen, could you stand please?
51 On Charge 1 of arson for gain, you are convicted and sentenced to a term of imprisonment of three years and six months.
52 On Charge 2 of obtaining property by deception, you are convicted and sentenced to a term of imprisonment of two years.
53 The sentence on Charge 1 is the base sentence. Six months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1.
54 The total effective sentence is four years' imprisonment. I fix two years as the period that you are required to serve before being eligible for release on parole.
55 I declare that you have served 24 days of this sentence by way of pre-sentence detention.
56 I make orders for compensation in relation to Charge 2 in that amount of $358,006.24.
57 Could you take your seat please. Remco Jansen, could you stand please?
58 On Charge 1, arson for gain, you are convicted and sentenced to a term of imprisonment of three years and three months.
59 On Charge 3, trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of five months.
60 The sentence on Charge 1 is the base sentence. Three months of the sentence on Charge 3 is to be served cumulatively on the sentence on Charge 1.
61 The total effective sentence is three years and six months' imprisonment. I fix two years as the period of you are required to serve before being eligible for release on parole.
62 But for your plea of guilty in respect to Charge 3, I would have sentenced you to a term of imprisonment of eight months.
63 I declare that you have served 64 days of this sentence by way of pre-sentence detention.
64 Can you please take your seat.
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