Director of Public Prosecutions v Jensen (a pseudonym)

[2016] VCC 786

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH JENSEN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2016
DATE OF SENTENCE:	9 June 2016
CASE MAY BE CITED AS:	DPP v Jensen (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 786

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – unlawful and indecent assault of a female – delay

Legislation Cited:     Sex Offender Registration Act 2004 (Vic), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Sentence:Convicted and sentenced to 6 months imprisonment wholly suspended with an operational period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs (Plea) Ms N. Resstel-Pires (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr T. Lavery	M G Wardell

HIS HONOUR: 

1Joseph Jensen[1], if you would just remain seated for the moment and I want to go through the circumstances of the sentence, the reasons why I pronounce this sentence upon you.  The reason for that primarily is so that you understand it, but secondly also, so it is recorded, and should there be any need to refer to it in any future by anyone for any public purpose and/or by any other Court, it is recorded, all right.  I will ask you to stand when I finally pronounce sentence, but before I do that I have got to serve you with a notice.

[1] A pseudonym has been used to protect the identity of the victim.

2This is the reporting obligations.  Again, this is nothing to do with the Court.  This is a provision prescribed by Parliament and as a result of your pleas in this matter, as was indicated, you are required to report under the particular Sex Offender Registration Act, and that is a period of life reporting, and it is necessary to give you a notice in that regard and have you acknowledge the same and, Mr Lavery, maybe you could just - I will have my Associate do it.

3MR LAVERY:  Certainly, Your Honour.

4HIS HONOUR:  All right, thank you.  In this matter Mr Jensen has pleaded guilty to four charges in Indictment No.F13116804.  The plea in this matter took place at a Ballarat County Court sitting on 20 April of this year. Mr Jensen is aged 73, he was a driver by occupation and is currently on a disability pension.

5The parties were represented.  Mr Lavery appeared on behalf of Mr Jensen at Ballarat and appears today.  Mr Nibbs appeared as prosecutor and Ms Nicole Resstel-Pires appears today.

6As I said, the plea was to four charges on the Indictment.  They were four charges relevant to the unlawful and indecent assault of a female and the offending occurred in the period, August 1971 through to August 1972.  The respective ages of the victim and Mr Jensen were then 27 and 13.

7This offending, of course, has always been deemed as particularly serious and the purpose of the Crimes Act and this particular provision is protective.  It has always been a provision prescribed by Parliament in order to protect young persons, be they male or female.

8Exhibit A was tendered, which is the summary provided by the prosecution of the circumstances relevant to this offending.  Such exhibit was accepted by Mr Lavery as the circumstances upon which I was to sentence the prisoner.

9The first incident occurred when the victim was, as we understand her comment, seeking some assistance in her life, and particularly from her aunt.  She was staying at her aunt's place and it was decided that she would sleep in the bed with her aunt and with Mr Jensen, it was at this stage that these two assaults took place on this occasion.  Mr Jensen's wife had left the bed and what happened then was that he kissed the victim with an open mouth on her lips and put his tongue in her mouth.  He then touched her breast with his hands, those matters making up Charge 1.

10Mr Jensen’s wife then returned to the bedroom and told the husband to get up.  When she subsequently left the room again, he then penetrated the victim’s vagina with his finger, moving it in and out for a couple of minutes.  That makes up Charge 2.

11The second incident occurred in the same timeframe.  However, on this particular occasion there was a trip away and it was during this time, in preparation for the trip that Mr Jensen connected again with the victim. The victim said that after the first incident the prisoner had on a number of occasions tried to grope her. On this second occasion, as his wife was having a shower in preparation for going away, Mr Jensen started to kiss the victim with open mouth, rubbed his hand on her breast and then put his hand down her pants.  That makes up Charge 3.

12The third incident in fact occurred at Warrnambool when the prisoner took the victim for a trip in the car.  He was in the car with her, where the location is unknown, and it was during that time that he put his arms around the victim, kissed her again with his open mouth and tried to undo her jeans. 

13They are the circumstances and matters to which the plea has been made. 

14The maximum penalty applicable to such an offence, at the time, was a period of five years'. 

15The substantial issues involved in this case were the consideration of the sentence, in regard to Charge 2.  There was no issue, from the prosecution that despite the seriousness of the crimes, that they did not warrant a period of imprisonment. 

16As I say, the facts as a whole, set out in Exhibit A, were accepted as the appropriate facts upon which I am to sentence. 

17There was no complaint made until approximately January of 2015.  There was a subsequent arrest made and a pretext tape entered into in - later than month or - sorry, between the period 3 January 2015 and 2 April 2015, and then there was a record of interview entered into. 

18Insofar as these matters are concerned, the prosecution stressed the difference in age, the protective nature of this legislation.  Mr Jensen was not a man with any prior criminal offences, and certainly has had no criminal offences since that time. 

19The period, which is obvious from my reciting of the offences, is that these offences took place some 45 years ago, and therefore during those 45 years, Mr Jensen has lived an otherwise blame-free life. 

20As I said at the time, clearly this was a situational offence which came about from the circumstances whereby the victim was at the home.

21Exhibit D was tendered, which is the victim impact statement.  There is no doubt - and this Court hears continually as to the impact of this type of crime upon young women.  As set out in the victim impact statement, the victim in this case had had a difficulty with another male and a sexual assault upon her, sometime prior to these matters.  She had, in fact - and as she says in the statement, saw the family that she was staying with, and particularly Mr Jensen and his wife, as supportive.  As she said, this was a double betrayal, the circumstances of this matter. 

22The statement after all these years, and in particular, with other substantial issues in the victim's life, is such that it is difficult for this Court to be precisely able to ascertain what relates to these crimes, and what does not. 

23It is submitted in the statement by the victim that it was this, associated with the earlier assault, that led to her having a lifetime difficulty in trusting men.  There are also more substantial psychological issues in the victim's life, but I note her comments and as I say, the Court notes in these circumstances regularly the difficulties of assault, perpetrated on a young person and the effect thereafter. 

24Insofar as the prosecution was concerned, as I have said, they indicated there was a requirement, pursuant to Act of Parliament, for life reporting in this matter.  That matter has been entered into. 

25There was an application for a 464ZF order. 

26Insofar as penalty was concerned, there was no issue, essentially, with
Mr Nibbs, in the hearing below, that immediate imprisonment was not necessary in regard to Charges 1, 3 and 4, it being accepted that those matters  may well, at the time of this offending, some 45 years ago, have been heard in a summary forum, and at the time, it would have been very unlikely that gaol would have resulted.  In fact it is clear it would not have. 

27The issue, of course, concerned the penetration offence, which is Charge 2. 
Mr Nibbs submission was that, given the breach of trust involved, given that the victim was within the house as a niece in a protective situation, that she was spending time in the house post an earlier assault upon her, that such matters, in totality, were such that the Crown submitted that there should be an imposition of immediate gaol.

28There was some discussion in Ballarat as to what options there were for the Court.  There was discussion as to whether there was an option, if a period of imprisonment was imposed, as to whether such period of imprisonment could be suspended.  I thank the prosecution for its submissions since that time.  The relevant legislation and submission has been tendered and exhibited today as Exhibit C.  The legislation as it stood means that a suspended sentence is an option, however, as detailed in the sentencing submissions, the prosecution maintains its submission that an immediate custodial term is the only appropriate disposition. 

29Insofar as Mr Lavery's submission was concerned, he took me to the issue of the appropriate discount, relevant to the pleas in this matter.  He submitted that, not only was it of high utilitarian value, but given the time involved and the particular offences, the Court should see these pleas as very valuable.  In particular he stressed the issue of the character of the accused, but for these particular offences, as stressed, prior to the time of offending, he had no other offences, and most importantly, subsequently in the next 45 years, has had no offences. 

30It is clear that there was some family awareness of these matters.  He tendered Exhibit 1, the report of Mr Joblin.  It is clear that over the time, Mr Jensen has had particular difficulties with his own family and having lost his own daughter, the obligation for 13 years, the last 13 years to raise his cerebral palsy affected grand-daughter.  Mr Lavery submitted that he has made a significant community contribution, which is acknowledged, over such period, and is now on a disability pension, having finished work at the age of 57. 

31As to the particular offending, Mr Lavery submitted that I should see it as opportunistic and it seems to me that the reality of the offending, looked at in the totality of Mr Jensen's life, would indicate that as being correct.  That he had endured, given the family awareness of these offences, some form of shame and disgrace over the period, and that he was, in the record of interview, accepting of his guilt and apologetic. 

32The prisoner has had the issues that I referred to, referred to in Mr Joblin's report.  He has lived his life throughout those periods and raised his children, and it was submitted that I should see the submission of the Crown, insofar as an immediately custodial sentence for Charge 2, for a person with his particular issues, as set out in Mr Joblin's report, as unduly onerous. 

33As I said, there was no issue between counsel that the appropriate sentence at the time would not necessarily have been a period of gaol.  I am not so sure at the time, and these are always difficult considerations for a Court, because it is necessary to take into account what would be the appropriate sentencing practice.  Penetration of a young girl in these circumstances, was always seen as a serious matter.  There may have been alternatives at the time.  No doubt what could have been brought forward on behalf of Mr Jensen, that he was a relatively young parent of a family, involved in a farm, involved in buying a farm, and may well have been matters put on his behalf at that stage. 

34In the end, one finally has to take those matters into account and make a determination.  I have no doubt, in the circumstances, given the protective nature of this offence, that Charge 2 is appropriate for the imposition of a gaol term.  I conclude that because of the difference in age and the breach of trust and the fact that this was a legislation passed by Parliament by way of a protective provision. 

35The real consideration that I have had to make, following the ascertainment of the totality of the sentencing options, is whether such should be immediate.  Such is never easy, because one does not want to, in any way, reduce the acceptance, which I accept that the defendant has, by his plea, accepted the seriousness of his criminality in this matter.  However, one has to balance against those matters, the fundamental issue of rehabilitation.  In this case, it is not perceived or hoped for rehabilitation.  This is a life that has been led, whereby there has only been the one blemish. 

36It seems to me, based upon the principles that relate to the imposition of a suspended sentence, that the submission for a suspended sentence is appropriate in this case. 

37Mr Jensen, if you would stand please. 

38In regard to the first charge, you will be fined a sum of $1,000. 

39In regard to the second charge, you will be sentenced to a period of imprisonment of six months' gaol. 

40Pursuant to the provisions of s.27 of the Sentencing Act, that sentence will be wholly suspended for a period of 18 months. 

41It is very important for you to understand, and I am sure, given your history, that that will not be an issue, but should you come back to this Court, having been convicted of another offence during that period, then unless there is exceptional circumstance, you would have to be sentenced to that period.  But I am certain, over the next 18 months, given your history, we can be confident that you will not be breaching that provision. 

42I intend to impose an aggregate fine of $1,000 in regard to Charges 3 and 4, and cumulate the sentence in regard to Charge 3, with Charge 1, making a total fine of $2,000, plus the period of jail in regard to Charge 2, which will be suspended for the period of 18 months. 

43Insofar as the declaration under s.6AA of the Sentencing Act, as far as I can comply with the requirements of Parliament, all that I can say is that had
Mr Jensen not pleaded guilty, he certainly would have been serving an immediately sentence.  In the circumstances, I do not intend to impose or exercise the provisions under s.464ZF, I have go no concern at all, insofar as Mr Jensen being a recidivist.

44Is there any other matters that I need to attend to?

45MR LAVERY:  No, no matters arising, Your Honour.  The only thing I'd
raise - - -

46­HIS HONOUR:  Do you want to - is your client aware?  Perhaps you might just explain to your client what that - is he aware of the provisions and what it means?

47MR LAVERY:  I certainly do all that, Your Honour.

48HIS HONOUR:  Yes.

49MR LAVERY:  The only other matter that seems to be worth of mention, and that is, I don't seek a stay in respect to the fine.  And that's done with our eyes open, if I can put it that way, Your Honour.

50HIS HONOUR:  Right.  So the final - you don't seek a stay in regard to that? 

51MR LAVERY:  We do not seek a stay, Your Honour.

52HIS HONOUR:  All right.  All right, Mr Jensen, well there is nothing more for me to say, I think.  I am sure that you have heard what I have had to say and I am sure we will not see you again.  All right?  Yes, thank you, Madam Prosecutor, and Mr Lavery.

53COUNSEL:  Thank you, Your Honour.

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