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Jansen v The Queen

Jansen v The Queen

Case [2021] WASCA 160 7 September 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JANSEN -v- THE QUEEN [2021] WASCA 160
CORAM:   BUSS P
MURPHY JA
MAZZA JA

HEARD:   23 AUGUST 2021
DELIVERED          :   7 SEPTEMBER 2021
FILE NO/S:   CACR 26 of 2021
BETWEEN:   DEBBIE ANNE JANSEN
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   SHE IND 13 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on guilty pleas of two counts of under‑declaring and failing to declare employment income with the intention of dishonestly obtaining a gain from a Commonwealth entity, contrary to s 135.1(1) of the Criminal Code (Cth) - Appellant sentenced to total effective sentence of 2 years 6 months' imprisonment and ordered to be released on recognisance after 22 months - Whether pre‑release period of 22 months was manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 19AC(1), s 20(1)(b)
Criminal Code (Cth), s 135.1(1)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	M Ajduk
Respondent	:	K Heslop

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Coombe v The Queen [2009] WASCA 105
De Faria v The State of Western Australia [2013] WASCA 116
De Hollander v The Queen [2012] WASCA 127
Ivanovic v The Queen [2009] NSWCCA 28
Johnsson v The Queen [2007] NSWCCA 192
Jorissen v The Queen [2017] WASCA 71
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
McGuiness v The Queen [2008] NSWCCA 80
Ord v The Queen [2008] NSWCCA 162; (2008) 186 A Crim R 475
Payne v The Queen [2010] WASCA 177
R v Hurst; Ex parte Commonwealth DPP [2005] QCA 25
R v Lovel [2007] QCA 281
R v Thomson [2009] SASC 237
Soerensen v The Queen [2020] WASCA 114
Thomas v The Queen [2006] NSWCCA 313
Thomson v The Queen [2014] NSWCCA 88
Yarak v The Queen [2008] NSWCCA 298

JUDGMENT OF THE COURT:

On 20 April 2020, the appellant entered fast‑track pleas of guilty to two counts of under‑declaring and failing to declare employment income with the intention of dishonestly obtaining a gain from a Commonwealth entity, contrary to s 135.1(1) of the Criminal Code (Cth).[1]
[1] ts 7.
On 14 September 2020, the appellant was convicted on her guilty pleas and sentenced to 2 years 6 months' imprisonment on count 1 and 12 months' imprisonment on count 2. The sentencing judge, Birmingham DCJ, ordered that the individual sentences be served concurrently. His Honour made a recognisance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), in which he ordered that the appellant be released on a recognisance to be of good behaviour in the sum of $10,000, after serving 22 months' imprisonment (the recognisance release order).[2]
[2] ts 22 - 23.
The individual sentences and the total effective sentence are not challenged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jansen v The Queen

Details

AGLC: Jansen v The Queen [2021] WASCA 160
Case: [2021] WASCA 160
Decision Date

CaseChat Overview and Summary

Debbie Anne Jansen appeals against her sentence in the District Court for two counts of under-declaring and failing to declare employment income with the intention of dishonestly obtaining a gain from a Commonwealth entity. Jansen was sentenced to a total effective sentence of 2 years and 6 months' imprisonment and ordered to be released on recognisance after 22 months. Jansen contends that the fixed pre-release period of 22 months was manifestly excessive. The Court of Appeal allowed the appeal and resentenced Jansen to 16 months' imprisonment to be served before release on recognisance. The Court found that the pre-release period was manifestly excessive, unreasonable and plainly unjust. The Court held that the fixed pre-release period imposed was 73.33% of the total term of imprisonment, and failed to reflect the mitigating factors in the case, including Jansen's good prospects of rehabilitation. The Court accepted that the offending was serious but not as serious as in cases where longer pre-release periods were imposed. Jansen had relevant prior convictions but these were of limited seriousness. She pleaded guilty at the first reasonable opportunity, was contrite, had cooperated with authorities and made some reparation to the Commonwealth. Personal deterrence was a relevant sentencing factor, but the fact of having to serve, for the first time, a term of immediate imprisonment was likely, on the facts of this case, to have produced the necessary deterrent effect. The period of 22 months was inconsistent with terms imposed for similar, if not more serious, offending. The fixed pre-release period imposed was unreasonable or plainly unjust. The ground of appeal has been made out. This court should impose a different and lower pre-release period. The Court imposed a fixed pre-release period of 16 months' imprisonment. The other sentences and orders made by the sentencing judge should not be disturbed.

Orders