R v Jensen

[2025] NSWDC 272

District Court

New South Wales

Medium Neutral Citation:

R v Jensen [2025] NSWDC 272

Hearing dates:

3/4/25

Date of orders:

3/4/25

Decision date:

03 April 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 2 months with a NPP of 1 year 8 months (2/8/24-1/4/26).

I find special circumstances.

The indicative sentences (after a 25 percent discount) are:

Seq 3 Choke – 2 years 2 months.

Seq 4 Aggravated robbery – 3 years.

Seq 1 Contravene ADVO – 1 year.

I direct that a copy of the report of Dr R Furst dated 20/3/25 (contained in sentence Exhibit A) be forwarded to Corrective Services and Justice Health.

Catchwords:

Crime – Sentence – Choking – Aggravated robbery – Contravene Apprehended Domestic Violence Order

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194

R v Harris [2011] NSWCCA 105

R v Henry and Ors (1999) 46 NSWLR 346

Category:

Sentence

Parties:

NSW DPP – Crown
Andrew Jensen - Offender

Representation:

Mr Williams-Styles for Crown
Mr R Hussey for Offender

File Number(s):

2024/121988

remarks on sentence

1. Mr Andrew Jensen is for sentence in relation to three offences as follows. Firstly, the sequence 3 offence which is one under s 37(1)(b) of the Crimes Act 1900 of intentionally choking, being reckless as to rendering a person unconscious. The maximum penalty for that is 10 years imprisonment.

2. Secondly, the sequence 4 offence which is under s 95(1) of the Crimes Act, being an offence of robbery in circumstances of aggravation in that the offender immediately before the robbery deprived the victim of her liberty. The maximum penalty for that offence is 20 years imprisonment.

3. Thirdly, the sequence 1 offence which is being dealt with on a s 166 certificate being an offence under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 of contravening an Apprehended Domestic Violence Order, the maximum penalty for that offence being two years imprisonment.

4. The maximum penalties are of course an important guidepost in the sentencing exercise to which I have given appropriate weight.

FACTS

5. The facts of the offences are agreed and in essence are as follows. At the time of the offences, the offender was the subject of two Apprehended Domestic Violence Orders, the relevant one, however, for the purposes of sentencing, being one that was in place to protect his mother. Amongst the conditions of that order was that he not assault, threaten, stalk or intimidate her.

6. However, on the day of the offence, which is 1 April 2024, the victim was visiting her mother at the mother’s home in Warners Bay. The victim’s mother needed assistance on a daily basis with various things. The agreed facts note that at the time of the offence the offender had a mental health condition, namely schizophrenia and substance use disorder, for which he was prescribed medication.

7. At about 3.30pm on 1 April 2024 the victim arrived at her mother’s house to assist her mother. She found the offender at the house. She noted that he appeared to be agitated and was speaking on the phone with his father. The things that he was saying made her concerned that he had not been compliant with his medication and she asked him to leave the house. While the offender did leave, he later returned. The victim then carried out various tasks to assist her mother and put her to bed.

8. At about 5.40pm the victim secured the house and opened the internal garage door in order to leave and found the offender standing in the doorway. He said to her, “You're not going anywhere. You're going to pay for what you did to me when I was little,” to which she replied, “What exactly did I do to you, mate, except love you to death?” and the offender then responded, “You know exactly what you did to me.” The victim did not understand what he was talking about but, trying to calm the offender down, she said, “Look, let’s sit down and we can talk,” and turned her back to go inside the house.

9. However, as she turned, the offender stood and put his forearm around her throat, forcing her neck to bend backwards. He then squeezed her neck tightly. This caused the victim to try to call out for help but she could not speak. She tried to hit the garage rollerdoor switch, presumably to open the door but was unable to do so. In the process, she dropped her phone and she was pulled up by her neck, effectively such that the tip of her toes only were left on the floor. After this, she lost consciousness.

10. She regained consciousness and found herself sitting in a chair inside the house. The offender asked, “Do you remember what happened before you passed out?” The victim was dazed. She tried to call for help but she was unable to speak and she found herself to be hoarse.

11. The offender then used some wide electrical tape which I assume is some kind of duct tape to bind around the victim’s head, covering her mouth, nose and eyes. She, however, kept her fingers in her mouth with her palm over her chin so as to give her a means by which to continue breathing. She was screaming and yelling through the tape or at least attempting to do so. The offender wrapped the tape around her head several times.

12. After about an hour, the victim convinced the offender to remove the tape and in the process of that he pulled out some of her hair, given that it was evidently attached to the sticky side of the tape. The offender hit his mother the victim to the face, causing her nose to bleed, after which he got a hand towel for her to hold to her nose.

13. The offender then demanded that the victim transfer money to him. He initially demanded $10,000 and said that he was not letting the victim go until she gave him the money. She refused to provide her PIN number to her bank account and, after some back and forth discussions, the offender gave her back her own phone. The victim noticed around this time that it was 6.40pm, at which time she electronically transferred $450 to the offender’s bank account. The agreed facts note that this was for “food and accommodation”.

14. The victim’s husband phoned her, however, the offender let the call ring out. The victim told the offender that it was likely her husband would keep calling unless she answered, to which the offender said he would hide her in the shed and wait for her husband to arrive. The offender eventually, however, did allow the victim to leave. She called her husband from the car but she was too upset to speak and she drove to her home. On her return home, the victim was shaking and crying.

15. Her husband called the police. She subsequently participated in a Domestic Violence Evidence-in-Chief recording during which she was coughing while trying to speak, given the soreness of her throat. The agreed facts also note that she was experiencing considerable soreness to the back of her neck and her head.

16. She spoke during her interview with police about the fact that the offender was receiving medication for mental health problems and her understanding that he had not received his appropriate medication. The facts go on to note that later in the morning of 2 April the victim received a call from a mental health practitioner from the James Fletcher Hospital who was trying to contact the offender about his medication.

17. Police attended the home of the victim’s mother where the offences had occurred and there they found the offender and arrested him. Police also found the bloodstained hand towel as well as loops of electrical tape with hair stuck to them.

18. The facts go on to note that the victim suffered bruises to her left leg, right arm, left hand and nose. She also had ongoing neck pain with a tender jaw and facial bones and cervical spine. Those, in summary, are the agreed facts.

GUILTY PLEA

19. The offender has, of course, pleaded guilty to each of the offences at an early stage and will be given a 25% discount by reason of the utilitarian value of those pleas of guilty.

OBJECTIVE SERIOUSNESS

20. It is important that I make some assessment of the objective seriousness of each of the offences. There are some common features to each of them. Firstly the maximum penalties, particularly those for the sequence 3 and sequence 4 offence, mark them as potentially very serious offences. Secondly all of the offences are of a domestic violence nature which must be treated very seriously and in which general deterrence is of particular importance ordinarily. Thirdly, all of the offences were committed at a time when the offender was operating under a delusional thought pattern which reduces his moral culpability or blameworthiness. This is a matter to which I will return later in these remarks.

21. The sequence 3 offence of choking involved the offender attacking the victim from behind with no provocation at all by her. The offender applied significant force to the victim’s neck, partially lifting her from the ground and eventually rendering her unconscious. I have no doubt that it must have been a terrifying event for the victim and it left her with difficulty speaking and with some injuries and significant pain. The offence occurred in a home where the victim ought to have been safe and it was committed at a time when there was an Apprehended Domestic Violence Order in place which prohibited the offender from engaging in threatening or violent actions towards the victim. It was, however, not a planned offence.

22. It is an offence, in my view, approaching the mid range of objective seriousness.

23. The sequence 4 aggravated robbery offence occurred in the aftermath of the choking incident, a fact which would have increased the sense of fear experienced by the victim. The detention was not short but lasted about an hour. While that, no doubt, would have been a terrifying hour for the victim, the detention did not involve multiple hours or days as some offences can do. The detention involved horrific acts of the offender wrapping duct tape around the victim’s head, covering her mouth, nose and eyes, and requiring her to keep her fingers in her mouth so she could breathe. Although the offender eventually removed the tape, this injured the victim by pulling out some of her hair, and the offender also hit her to the face, causing her nose to bleed.

24. The robbery involved the offender forcing the victim to transfer money in the sum of $450, which is not an overly large sum, but certainly not trivial. The offence, again, occurred in a home. It also involved an implicit threat to the victim’s husband in that the offender said he might hide the victim in a shed and wait for the husband to arrive. This would have added to the victim’s fears. The facts note that the victim was left shaking and crying, and I have no doubt that the psychological effects on her would have been severe. The offence occurred when there was in place an Apprehended Domestic Violence Order protecting the victim. It was not, however, a planned offence.

25. In my view, it is an offence near the midrange of objective seriousness.

26. In R v Henry and Ors (1999) 46 NSWLR 346 the New South Wales Court of Criminal Appeal suggested a range of appropriate sentence periods for a common type of armed robbery offence. While the robbery offence before this Court is not an armed robbery, the Henry guideline nonetheless remains of some relevance. As was explained in R v Harris [2011] NSWCCA 105, the Henry guideline “range” equates, after a 25% discount for a plea of guilty, to a head sentence range of about three years four months to about four years two months. Of course, the Henry guideline is not prescriptive, even where the objective and subjective factors referred to in that case are present. I note that with the offence and the offender now before me there are several differences between the circumstances as compared with those discussed in Henry. Nonetheless, that decision is of some broad relevance in setting the sentence for the robbery offence now before the Court.

27. The sequence 1 offence of breaching the terms of an Apprehended Domestic Violence Order involved a breach of an order that was in place to protect the offender’s mother. It prohibited the offender from, amongst other things, assaulting, threatening or intimidating her, and he did all of those things by committing these offences. However, I remain conscious of the fact that there is a great deal of overlap between this offence and the other two.

SUBJECTIVE MATTERS

28. Turning then to subjective matters. The offender is 35 years old and was 34 at the time of the offences. His subjective case is set out mainly in the psychiatric report of Dr Richard Furst. The offender grew up in the Newcastle area. His parents separated when he was about 12 and he has two older sisters. He attended high school till year 12 and there was no reported history of learning difficulties.

29. He has a history of various forms of employment into his mid-twenties. However, Dr Furst notes that the offender started having mental health problems from around age 21 when he had his first psychotic episode. He was prone to paranoia and diagnosed with schizoaffective disorder in his mid-twenties and had a number of admissions to psychiatric hospitals. He has been on a disability support pension for 13 years.

30. The offender’s recent history involves being under the care of Hornsby Community Mental Health Team in 2023, and he was on Abilify tablets for about two years after about seven years of depot injections of Abilify, until the Hornsby team stopped his Abilify around September 2023 when he was admitted to hospital and placed on a different depot injection. He was, however, discharged from the care of that mental health team in November 2023, despite the change to his medications that had occurred only two months earlier.

31. Dr Furst concludes that the offender meets the diagnoses for schizophrenia and substance use disorder, methylamphetamine. This is consistent with the agreed facts on sentence which refer to the offender suffering the same conditions at the time of the offences. Dr Furst notes that the offender had developed paranoid beliefs that his mother had sexually abused him when he was a child. He notes that these beliefs likely started in late August 2023 and continued up to the time of the offences. He notes that at the time of the offences the offender had a well-established chronic mental illness driven by his delusions about his mother and that his acute symptoms caused him to lose touch with reality such that he could not exercise proper judgement. Dr Furst concluded that although not directly causal, the offending occurred against a background of the offender being homeless, using illicit drugs and being about one month late for his scheduled psychiatric medication.

32. Significantly however, Dr Furst concluded that when he saw the offender on 11 March 2025 the offender was apparently medication compliant, had no acute signs of psychosis and described feeling more stable over recent months. Furthermore, the offender told Dr Furst that he now realises that he was delusional at the time of the offences, feels ashamed at what he did, acknowledges the importance of remaining on his medication, and indicated a wish to find a good mental health team and psychiatrist to assist him when he is released from custody.

33. In Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 McClellan, the then Chief Judge at Common Law, summarised the principles that apply when an offender is suffering from mental illness. His Honour summarised them into five broad principles.

34. Firstly, where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence.

35. Secondly, it may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.

36. Thirdly, it may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.

37. The fourth general principle is that it may reduce or eliminate the significance of specific deterrence.

38. The fifth general principle, which might be said to pull in a different direction, is that conversely, a person’s mental illness may mean that they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

39. In my view, all of these principles are engaged in this case. In a civilised society, intelligent and well-informed persons understand that any crime, and the punishment for that crime, must be assessed having regard not just to the physical nature or consequences of the crime but to the person’s moral culpability or blameworthiness in committing it. A criminal act that is committed by a person in a sound state of mind, knowing what they are doing, must obviously be treated much more severely than the same act committed by a person affected by a mental illness.

40. In this case, the acts committed by the offender were extremely serious and must have been absolutely terrifying for the victim, the offender’s own mother, who would have been in fear of her life. It is an experience that may well have long-lasting adverse effects on her.

41. However, and as is noted by Dr Furst, the offender was at the time of the offences affected by paranoid delusional beliefs which contributed very significantly to his actions. It has not been argued that the offender’s mental health issues were of such a nature as to render them non criminal, as occurs in some cases.

42. However, I accept that the offender’s mental illness played a very significant part in his commission of the offences. This reduces his moral culpability to a significant degree. It makes him and his offences a less suitable vehicle by which to reflect the need for general deterrence. I also accept that the existence of the offender’s mental illness has made his time in custody more difficult.

43. I accept also that the importance of personal deterrence is reduced but still relevant and of some importance. Personal deterrence remains important, in my view, because although the offender was operating under a delusional belief system, there was, nonetheless, an element of choice in the actions that he took in response to those beliefs. It is thus important that he understand that violent choices such as these, even when contributed to by a mental illness, must be punished.

44. As I have already noted, the fifth general principle referred to in the De La Rosa decision is that a person may, by reason of their mental illness, present more of a danger to the community. The offences before the Court, together with the offender’s history of offending, lead me to the view that this principle is also of some importance in this case. It is a further matter to which I have given weight in the overall sentencing synthesis.

45. Counsel for the offender has argued that, although this fifth principle from De La Rosa is relevant, it ought not be given undue weight. He submitted that although the offender has committed these serious offences and has a history of other violent offences, he is not a person who ought to be regarded generally as a risk to the community.

46. The offender’s criminal history does not assist him but it is somewhat unusual in that it does not really commence until the offender was aged in his early thirties. Another unusual aspect when compared with many offenders who come before this Court is that this offender does not appear to have experienced a childhood involving exposure to drugs and alcohol, violence and instability. Although his parents separated when he was only 12, he nonetheless went on to complete year 12 and performed reasonably well, both academically and in sports. He also has a history of fairly regular employment.

28. His downfall in recent years seems to be a product of a number of things: Firstly, a predisposition to mental illness; secondly, his very unwise choice to use cannabis and other drugs which are well known to be a trigger to mental illness in predisposed persons; and thirdly, the impact of the death of the offender’s best friend in 2017 which exacerbated the offender’s drug use.

29. I do not regard this offender as ordinarily being a risk to community safety. It is primarily his mental illness that is the risk. This conclusion is consistent with the contents of a letter from the offender’s mother, the victim of these offences, who urges the Court to take a lenient approach with her son and to impose a sentence that leans towards rehabilitation rather than punishment.

REMORSE AND REHABILITATION

49. The offender has expressed remorse in a letter to the Court and this is supported by the letter from his mother. I accept that there is genuine remorse in this case in that the offender is very sorry for what he has done and he is determined to avoid such offending in the future. Clearly the offender’s prospects of rehabilitation are intricately linked to his remaining compliant with treatment. He is now stable and has insight into his mental illness and the need to remain treatment compliant, but this is largely due to his being well medicated at the moment. The risk, as I said during the sentence hearing this morning, is that once he has been stable for a while he will stop his medications, thinking he no longer needs them. This is an ever-present risk in persons with chronic mental illnesses such as this offender.

50. Nonetheless, the offender has the benefit of support from his mother and sister, who have attended court to support him today, and also I am told the support of his father who lives in Sydney. The offender also has the benefit of an offer of accommodation with his father and some prospects of employment.

51. Balancing all of these matters, I consider that his prospects of rehabilitation are guarded but reasonably good.

52. As I have said when discussing the De La Rosa principles, there are a number of factors to be taken into account, some of them pulling in the direction of greater punishment and others pulling in the opposite direction.

53. The sentence that I impose must balance these various competing issues and must also have regard to the various purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. In regard to s 3A, I make the following observations and findings.

54. I am of the view that the importance of general deterrence is significantly reduced for reasons that I have already set out. As I have also said, I think the importance of personal deterrence is reduced but still remains of some importance. I think the need to denounce the offender’s conduct is also reduced, given the comments I have made about him not being a suitable candidate for general deterrence. There remains, however, the importance of the offender being adequately punished, of making him accountable, for recognising the undoubted harm to the victim, and protecting the community. Lastly but importantly, it is necessary that the sentence have regard to the need for the offender’s rehabilitation.

55. I am satisfied that the threshold referred to in s 5 of the Crimes (Sentencing Procedure) Act 1999 is passed, in other words, that no penalty other than imprisonment is appropriate. No submission to the contrary has been made.

56. I have had regard to totality principles, in other words, given that there are three offences before the Court, the importance of having regard to the extent to which there should be any notional accumulation or whether the offences can be partly or totally concurrent. It is fundamentally important in following those principles that I have regard to the overall sentence so as to ensure that it is not one that might be regarded as crushing any prospects of rehabilitation.

57. As I have said, there are three offences before the Court which must all be acknowledged and punished. However, they were effectively all committed in the course of a single episode. In my view, while there is a need for some notional accumulation so as to punish the three individual crimes, the degree of notional accumulation should be limited. That is particularly so with respect to the contravene apprehended domestic violence order offence which is based essentially on the other offending.

58. I have given consideration to the date from which any sentence should commence. This is necessary because although the offender was arrested for these offences on 2 April 2024 and has remained in custody since that time, he has also been in custody in relation to certain other offences. Specifically, I note that on 28 August 2024 the Local Court sentenced him to a head sentence of 12 months with a non-parole period of seven months for multiple offences committed at earlier times. That head sentence expired on Monday of this week and the non-parole period expired on 1 November 2024 but the offender has remained in custody since then due to the offences now before the Court.

59. It is a matter for my discretion as to the extent to which I should backdate the current sentence. It would not be appropriate, in my view, to backdate the sentence entirely to the date of arrest because that would mean, in effect, that the offender would have received no punishment at all for the matters dealt with in the Local Court.

60. Nonetheless, I intend to backdate the sentence by three months so as to commence on 2 August 2024; when I say “three months” I mean three months from the expiry of his earlier non-parole period. I have done that having regard to the onerous nature of the offender’s experience of custody by reason of his mental illness and the need to promote his rehabilitation.

61. I have made a finding of special circumstances for adjusting the ordinary ratio between head sentence and non-parole period. I have done that on the basis of the offender’s mental health difficulties and the importance of his being supervised for a reasonable period once he is released to parole.

DETERMINATION

62. I intend to impose an aggregate sentence which I will announce shortly. Before announcing that aggregate sentence, it is necessary that I nominate the indicative sentences that I would otherwise have imposed. The indicative sentences are as follows. Each of these are after the application of the 25% discount for guilty plea.

63. For the sequence 3 offence of choking, the indicative sentence is two years two months. For the sequence 4 offence, being the aggravated robbery, the indicative sentence is one of three years. For the sequence 1 breach ADVO, the indicative sentence is 12 months.

64. Mr Jensen, you are convicted. I impose a head sentence of three years two months. I impose a non-parole period of one year eight months. Those will date from 2 August 2024. The head sentence, therefore, will expire on 1 October 2027. The non-parole period will expire on 1 April 2026.

65. I direct that a copy of the report of Dr Richard Furst be sent to Corrective Services and to Justice Health.

66. Anything that either representative needs to raise?

67. WILLIAMS-STYLES: Not for myself, your Honour.

68. HUSSEY: Nothing from me, your Honour.

**********

Decision last updated: 22 July 2025