Director of Public Prosecutions v Jensen (a pseudonym)

[2018] VCC 2079

IN THE COUNTY COURT OF VICTORIA      Revised
 Not Restricted
    Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLETTE JENSEN
(A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2018
DATE OF SENTENCE:	7 December 2018
CASE MAY BE CITED AS:	DPP v Jensen (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr A. Moore (For Plea) Ms N. Burnett (For Sentence)	OPP
For the Accused	Mr R. Timms	Cahills

HIS HONOUR:

1       Nicolette Jensen[1], you have pleaded guilty to one charge of arson. It has a maximum penalty of 15 years' imprisonment. You have also pleaded guilty to a related summary offence of contravening a Family Violence intervention order. The maximum penalty for that offence is 2 years imprisonment.

[1] Nicolette Jensen is a pseudonym

2       The victims, Cole Bergman[2] and his son Roi Bergman[3] live at a property north-west of Melbourne. They also have a second property some distance away. You had been in an “on and off again” relationship with Roi Bergman for approximately two years before the date of the offence. There is a history of intervention orders between the two of you and between you and Cole Bergman. An order was made against you on 19 November 2015 with an expiry date of 19 November 2017. You were prohibited from approaching Cole Bergman or attending within 100 meters of the above two addresses.

[2] Cole Bergman is a pseudonym

[3] Roi is a pseudonym

3       On Sunday 5 February 2017, you attended the property first mentioned, where you allege Cole Bergman threatened to smash the windows of your car with a baseball bat.

4       On 7 February 2017 you told your father about this incident. He got angry and threatened to throw a petrol bomb through the window of the home in which they live, “to teach them a lesson.” Your father was a volatile man with prior convictions for offending that included violent offending. On that same day, you were driving your car when your father asked you to stop at a milk bar because he wanted a cigarette lighter. You then dropped him off near the BP service station and then returned a short time later to collect him. He had purchased a five litre container of petrol. You told the police that you refused to take your father to the house they live in because you did not want him to burn the victims in their beds. Instead you took him to the second property where he committed the arson. In attending within 100 metres of that property you acted in breach of the intervention order that had been made in November 2015.

5       You drove your father along a track that ran behind the second property. You stopped at the back of the property and he got out of the car carrying the petrol can and a hammer. He walked to a shed on the property and poured petrol across piled carpet that was on top of a quad bike. He ignited the petrol with a cigarette lighter and caused an explosion that engulfed the shed. He ran to the car where you were waiting and you drove him from the scene.

6       The fire destroyed the shed, three motor vehicles that were uninsured and other items of property. The estimated damage bill was $149,900.

7       This is a serious example of the offence of arson. Your counsel told me that your father was a violent man. I don’t doubt it. You elected to tell him about the alleged incident on 5 February knowing as you must have that he would seek some form of revenge. Indeed, your father expressed the view that he would throw a petrol bomb through the window of their home. You told the police that you dissuaded him from that course but instead, you agreed to drive him to the second property where he would use the petrol that he purchased to cause damage. You knew his intention and you facilitated the offending by driving him to the property and then acting as his getaway driver.  

8       The victims have suffered considerably as a result of the arson. Roi Bergman lost the three cars that he had collected. They were worth $67,000 and they were uninsured. They were of great sentimental value. He is seriously depressed by what has happened saying in his victim impact statement that, “what I worked so hard in life to achieve, and brought to leave my kids later in life, is gone.”  Cole Bergman says in his victim impact statement that he no longer feels safe wherever he goes. He has trouble sleeping and is anxious and distressed at the loss of the antique furniture and other items that he had stored in the shed.

9       With this offending, general deterrence is a paramount sentencing consideration. Just punishment and denunciation are also relevant. 

10      

You have prior convictions for breaching intervention orders. On 21 April 2016, you appeared at the Bendigo Magistrates’ Court and you were fined a total of $1750 for two counts of breaching an intervention order. There was a further appearance on 24 June 2016 when you were placed on an adjourned undertaking for 4 counts of breaching an intervention order. Finally, on

19 October 2016, you were placed on a 6 month Community Corrections Order (CCO) for breaching an intervention order and contravening the earlier adjourned undertaking. The fact that you committed the current offences whilst on a CCO is an aggravating feature of your offending.  Your prior history means that specific deterrence is a relevant sentencing consideration.

11      You come from a background of great disadvantage. Your counsel told me that you were the middle child of 7 children. Your parents separated when you were young and your early life was impoverished. Your father was a violent man who spent a great deal of his adult life in custody. You recall regular visits to prison every Boxing Day to visit him. He was clearly not a good role model. He died only a few weeks after this offending.

12      Apart from these facts, I have very little information about your background as you refused to discuss it with Mr Ball, a Forensic Psychologist who assessed you on 9 May 2018. You presented to him as a vulnerable woman with significant and severe symptoms of personality disturbance and substance dependence. He conceded that you may have the capacity to rebuild your life but that you will require “extensive, intensive and structured treatment aimed at drug relapse prevention, grief counselling, mood management and therapy aimed at the borderline and dependent aspects” of your functioning.  

13      You have been married. You are separated from your husband and that separation was over 4 years ago. You have an intervention order against him which precludes him from having contact with you or the two children.   

14      You have been treated for depression since September 2017. You have been prescribed Seroquel and Sertraline.  You have suffered from low mood and lack of motivation.

15      One important constant in your life has been your role as the carer of your children. For the last five years or so you have been their sole carer. They have high needs. The eldest child, who is now 14 years old, suffers from ADHD and is on medication. According to a doctor from the Community Health Services, he is in the lower quartile cognitively. He has also suffered from anxiety in the past and he does not attend a mainstream school.

16      Your youngest child is 12 years old.  He has inherited neurofibromatosis and a low IQ (estimated at 62 in an assessment conducted in September 2017). He attends a special school. A recent Intellectual Disability Report reveals the extent of his disabilities. He does not display spatial awareness and has difficulty with concentration; he has significantly delayed fine motor skills, receptive communication skills and expressive communication skills; he exhibits significantly challenging and excess behaviours; he exhibits safety concerns; and he exhibits self-care difficulties.

17      During the course of the plea I heard evidence from your mother that she was unable to care for your children. She suffers ill health and her partner suffers significant ill health. She is his carer. I am satisfied she has no capacity to care for your sons.  The only other likely candidate, your ex – partner, has spent time in prison, been violent towards you and the children and is not allowed to have contact with the children because of an intervention order that remains in place until April 2019.  With no other potential carers available, I can only conclude that should you be imprisoned, your sons will most certainly go into state care. Given their attachment to you, the extent of their disabilities and their dependence upon you, such an outcome would constitute great hardship for them. For this reason, I find exceptional circumstances that justify an appropriate mitigation of sentence.

18      There are other matters in mitigation.

19      First, after initial and futile attempts to try and exonerate yourself, you made admissions to the police. You entered an early plea of guilty. The plea is an acceptance of responsibility and has saved the victims from the stress and trauma associated with giving evidence in a criminal trial. It has also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.

20      Secondly, over the past few months you have taken steps to address your drug and mental health issues. Urine samples confirm that no drugs have been detected in your system since May of this year. You have a mental health plan that you are complying with. These matters speak favourably towards your prospects of rehabilitation.

21      Ms Jensen, will you stand please?

22      Courts usually sentence offenders who are guilty of arson to a term of imprisonment. That is because a strong message has to be sent to those who may be tempted to act in the way that you did, that they will pay a heavy price for such behaviour. However, there are some cases where justice should be tempered by mercy. This is one such case. It is the significant impact a term of imprisonment would have on the welfare of your children that has persuaded me to release you on a Community Corrections Order with strict conditions. The Court of Appeal in this state has affirmed that in some cases of serious breaches of the law, a Community Corrections Order may be an appropriate sentence. Obviously, I am of the view that this is one such case.

23      On both charges you are convicted and placed on a Community Corrections Order for a period of 30 months. The order will have the following conditions attached. You are to be under supervision; you are to perform 240 hours of community work; you are to be assessed and treated (including testing) for drug abuse and alcohol abuse; you are to submit to mental health assessment and treatment; you are to participate in programs or courses aimed at addressing factors relating to your offending and finally, you are to appear back in this court for a review of your compliance with the order at 10.30am on 12 April 2019. I direct that 40 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  

24      You are ordered to pay $67,000 compensation to Roi Bergman.

25 I order the taking of a buccal swab pursuant to s464ZF of the Crimes Act. If you fail to cooperate with the authorities in the taking of that sample, reasonable force can be used to obtain a sample and the sample obtained may be a blood sample. I make this order because of the seriousness of the offending, it is in the public interest and it is not opposed.

26      So, in summary, Ms Jensen, it's a two and a half year Community Corrections Order with conditions that require you to address your past drug abuse history and alcohol abuse history. There is a mental health treatment component. You have to participate in programs to address your offending. You will be under supervision and you have got to do community work. And you come back for a judicial monitoring hearing before me at 10.00 on 12 April in this court. Do you understand all that?

27      OFFENDER:  Yes.

28      HIS HONOUR:  There's a compensation order, although I appreciate that you'll have real difficulties paying that but I make the order nonetheless.  And the order in relation to the buccal swab will require to attend at the local police station within 28 days.  What the police do is just take a mouth swab.  They retain the sample on their database to help them in the detection of future crime.  If you don't cooperate in the taking of the sample, then police will use reasonable force to obtain a sample. Now, just take a seat there. We'll get you to sign the orders and then you'll be free to go. But you understand what's happened?

29      OFFENDER:  Yes.

30      HIS HONOUR:  Thank you.

31      MR TIMMS:  Thank you, Your Honour.

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