R v Hayley Anne Jansen

[2005] ACTCA 20

R v HAYLEY ANNE JANSEN
[2005] ACTCA 20 (9 May 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 – 2005
No. SCC 149 of 2004
Judges:         Higgins CJ, Crispin P and Tamberlin J
Court of Appeal of the Australian Capital Territory
Date:            9 May 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2005
  )          No. SCC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R

Appellant

AND:HAYLEY ANNE JANSEN

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. Sentence be varied so that the first two sentences be partially accumulated in that the second sentence shall commence 12 months after the commencement of the first sentence; and

1. Conditions of the recognizance be altered, such that the respondent be subject to the supervision of the Director of Corrective Services (ACT) and obey all reasonable directions of the Director or such person or persons as may be appointed from time to time for the purpose.  Such directions might include psychological counselling or such other programs or interventions as the Director thinks fit.

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2004
  )          No. SCC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R

Appellant

AND:HAYLEY ANNE JANSEN

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. This is of course a Crown appeal against sentence and as Mr Refshauge has rightfully conceded there are a number of barriers which are placed in the path of any successful Crown appeal against sentence.  Not the least of which is the principle against double jeopardy in the limited sense in which that applies in relation to Crown appeals against sentence.

1. It is perhaps more accurately described as an obligation to exercise restraint.  At the same time this is a case in which the respondent has been sentenced to a period of 12 months imprisonment to serve out of a head sentence of three years after the various sentences, which are concurrent, are taken into account. The overall effect was three years in respect of which she was to be released after 12 months on her recognizance to be of good behaviour with no other condition. 

1. As his Honour Gallop J said, in the case of R v Narelle Cox (Unreported, Supreme Court of the Australian Capital Territory, 2 December 1998) –

To be sent to gaol is a disaster of the greatest magnitude.  Persons who are in a position of trust will be deterred if they give thought to the personal cost of committing offences of the type committed by this accused.  A significant period of jail, attended by the deprivation which that involves, must constitute a weighty general deterrent.

But then his Honour goes on to say;

But this court cannot allow the accused’s subjective features to deflect it from giving proper attention to the objective features.

1. Now, had the sentence been wholly suspended that would be an apt observation to make.  But in fact his Honour in the present case did require, and has required, this respondent to serve a period of 12 months.  That cannot be said to be an insignificant amount of time to spend behind bars, particularly for a person who is a first offender and of previous good behaviour.

1. The point is made that previous good behaviour, is, in essence, that which enabled the offence to be committed.  While that sounds like an anomaly, nevertheless it cannot be ignored that this person was a person of good character.  There were some psychological factors which have been referred to which, while they certainly do not excuse the commission of the crime, may go some way to explain it.  That is, to explain why a person of such previous good character would fall from grace in this way.

1. No error is pointed to in his Honour’s factual findings, there is simply an overall submission that the penalty as a whole was not adequate to express sufficient condemnation.  No issue is taken with the individual sentences imposed.

1. The objection is, as far as the head sentence is concerned, that it is simply too low to reflect overall criminality.  That should be addressed by the partial accumulation, at least, of the first two sentences. I agree.  I would partially accumulate the second sentence so as to commence 12 months after the commencement of the first such sentence.  Thus, the effective head sentence then becomes four years, rather than three.  I would not then disturb any of the orders for the concurrency of the remaining sentences with those two sentences. 

1. As to the period of time before which the respondent should be released, Mr Refshauge did, of course, properly concede that 18 months would be a period which would properly reflect an appropriate length of time to serve before such release.  It may well be the case that such a sentence could not have been protested as being excessive.  Indeed, I would express that view myself. 

1. There are, however, some psychological factors that have been referred to and I do not need to repeat them.  They appear from the psychological reports to make this point: there is certainly a psychological vulnerability within the respondent that needs to be addressed.  I would not be as confident as his Honour was, that it can be addressed simply by the respondent’s own efforts at rehabilitation. 

1. That is not necessarily because she is at risk of re-offending, but because she is at risk of some social disruption.  Even if some self harm is the uncertainty, that strikes me as being the issue which needs to be addressed.  However, given that this is a Crown Appeal, I am not minded to increase the period of time which the respondent must serve before entering into her recognizance to be of good behaviour. 

1. But I would add to the recognizance his Honour pronounced to address that risk, a condition that during the period of the recognizance, after release, she submit to the supervision on probation of the Director of Corrective Services and obey the reasonable directions of the Director or such person or persons as may be appointed from time to time for the purpose.  Those directions might include psychological counselling or its continuance or such other programs or interventions as the Director thinks fit. 

1. I would therefore allow the appeal to that extent. 

1. The orders are that the Crown appeal be allowed to the extent that the first two sentences referred to by his Honour be partially accumulated, so that the second sentence commences 12 months after the first commences.  But otherwise, the sentences not be varied. 

1. But, as far as the release and recognizance is concerned, that order stands, save that the condition which I referred to for supervision over the period of the recognizance, should be added to that recognizance.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     9 May 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2004
  )          No. SCC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R

Appellant

AND:HAYLEY ANNE JANSEN

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. I agree with the course proposed by the Chief Justice and with his Honour’s reasons for judgment.  In my opinion the gravity of the offences did require a sentence that would provide adequate denunciation and, having regard to the element of restraint normally adopted on Crown appeals, the course which his Honour proposed in relation to the head sentence is entirely appropriate. 

1. I, too, would not disturb the period actually to be served.  The evidence reveals that the offender was not only a person of good character, but an emotionally vulnerable young woman who acted in the manner she did in order to meet psychological needs related to her poor self-esteem and insecurity about relationships, rather than greed in the sense of simply acquisitiveness.  These facts, however, also serve to underline the need for supervision to which the Chief Justice has already referred.  I would agree with the orders proposed.

   I certify that the preceding paragraphs numbered fifteen to sixteen (15-16) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:

   Date:    9 May 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2004
  )          No. SCC 149 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:R

Appellant

AND:HAYLEY ANNE JANSEN

Respondent

Judges:  Higgins CJ, Crispin P and Tamberlin J
Date:  9 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

TAMBERLIN J:  

1. I also agree with the reasons and course and orders proposed by the Chief Justice.

I certify that the preceding paragraph numbered eighteen (18) is a true copy of the Reasons for Judgment herein of his Honour, Justice Tamberlin.

Associate:

Date:    9 May 2005

Counsel for the Appellant:  Mr R Refshauge SC

Solicitor for the Appellant:  Office of the Director of Public Prosecutions
  (ACT)

Counsel for the Respondent:  Mr R Livingston

Solicitor for the Respondent:  The Legal Aid Office (ACT)

Date of hearing:  9 May 2005

Date of judgment:  9 May 2005