R v Jensen
[2023] VSC 434
•13 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0196
| Between: | |
| THE KING | |
| -and- | |
| NATALIE JENSEN | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2023 |
DATE OF SENTENCE: | 13 June 2023 |
DATE OF PUBLICATION OF REASONS: | 26 July 2023 |
CASE MAY BE CITED AS: | R v Jensen |
MEDIUM NEUTRAL CITATION: | [2023] VSC 434 |
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CRIMINAL LAW — Sentence — Perjury — Accused, aged 18, signed statement (with jurat) to police that was false in three respects — Falsehoods aimed at potential exculpation of accused’s boyfriend from responsibility for killing his mother — Accused admitted falsehoods in police interview conducted five days later — Accused in difficult circumstances at time of offence — Tragic early life — Lower level instance of perjury — Low moral culpability — Admissions — Offer to assist prosecution of former boyfriend, but not accepted by DPP — Plea of guilty — No prior convictions — Positively good character — Young offender — Excellent prospects of rehabilitation — Extra curial punishment through opprobrium in community, loss of employment opportunities — Adjourned undertaking to be of good behaviour for six months — No conviction recorded — Crimes Act 1958 (Vic), s 314; Criminal Procedure Act 2009 (Vic), s 414; Sentencing Act 1991 (Vic), ss 5, 8 & 75.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Glynn | Abbey Hogan, Solicitor for Public Prosecutions |
| For Ms Jensen | Mr S Norton | Stary Norton Halphen |
HIS HONOUR:
Overview
On 10 February 2022, Natalie Jensen signed a formal statement to police which she knew to be false in three respects. She lied to conceal the involvement of her then boyfriend Tia Minhinnick in the homicide of his mother Angela Huata.
On 13 June 2023, immediately following an adverse pre-trial ruling on the admissibility of evidence, Ms Jensen pleaded guilty to a charge of perjury.[1] Following a plea in mitigation, I sentenced her, without conviction, to an adjourned undertaking to be of good behaviour for six months.
[1]Contrary to s 314(1) of the Crimes Act 1958 (Vic); see also s 414 of the Criminal Procedure Act 2009 (Vic).
In order to avoid prejudicing Mr Minhinnick’s proposed jury trial, I deferred publishing written reasons for sentence. As Mr Minhinnick has since pleaded guilty to murder, it is now appropriate to publish those reasons, which are as follows.
Summary of offence and surrounding circumstances
Background
Natalie Jensen was aged 18 at the relevant time. She is now 19. She was in a relationship with Tia Minhinnick, then aged 20, although they did not live together.
Mr Minhinnick lived with his mother Angela Huata at 5 Glendale Road in Springvale. Ms Huata also had an infant daughter, who resided with her. Three other people — Renee Kawana, Peter Hosking and Stasha Henry — also lived there. Ms Kawana was aged 21. She and Ms Jensen were on very friendly terms.
The prosecution case is that Mr Minhinnick beat his mother Ms Huata to death between about 11:30 p.m. on 9 February 2022 and 1:00 a.m. the next morning. This assault took place at the premises they shared at 5 Glendale Road.[2]
[2]As I have said, in the period after Ms Jensen pleaded guilty and was sentenced, Mr Minhinnick pleaded guilty to the murder of his mother. His plea in mitigation will be heard later this year by Niall JA.
Lead-up events
At 12:52 a.m. on 10 February, Mr Minhinnick sent an SMS to Ms Jensen which read, “hey baby can u call me asap.” Ms Jensen was at her home at the time.
Thereafter, numerous messages and some calls were exchanged between Mr Minhinnick and Ms Jensen up until 1:56 a.m. Only the text messages sent by Mr Minhinnick are available to the prosecution, but they show that he was concerned about the state of Ms Huata, and was asking Ms Jensen for help.
Ms Jensen then left for 5 Glendale Road and arrived at about 2:30 a.m. She was greeted by Mr Minhinnick. No other resident was up at that time. She saw blood in various locations in the house. She saw Ms Huata, who was lying in Mr Minhinnick’s bed. Ms Jensen says she thought Ms Huata was or might be alive, and performed CPR on her, although the prosecution alleges that she was almost certainly dead by the time of her arrival.
Mr Henry left the premises to go to work shortly after 4:00 a.m. He did not see or speak to anyone in the house.
Ms Kawana and Mr Hosking got up at about 6:30 a.m. or 7:00 a.m. Ms Jensen, who had been in Mr Minhinnick’s bedroom, came out to the common areas of the house and spoke to them. The three of them cleaned up some blood in the kitchen.
Throughout the morning, Mr Minhinnick was hiding in his bedroom with the body of his mother. He was communicating with Ms Jensen by text message to the effect that he was getting increasingly upset by how long Ms Kawana and Mr Hosking were remaining in the house, because he needed to leave.
Mr Minhinnick sent the last text message to Ms Jensen at 12:03 p.m. It is alleged that, shortly after this message was sent, Ms Kawana and Mr Hosking left the house, and Mr Minhinnick then left too.
At 12:12 p.m., Ms Jensen rang triple-zero asking for an ambulance. She told the operator that she thought Ms Huata might be breathing. She was instructed to perform CPR, and continued to do so, until paramedics arrived. Once the paramedics arrived and took over, they soon determined that Ms Huata was deceased.
The offence
Police attended shortly afterwards. Ms Jensen spent the rest of the day in their company, including in the back of a police car. Later that evening, when at the police station, she signed a sworn statement. In it, she told a number of lies. Specifically, she stated that:
a) she arrived at the premises at around 11:20 a.m. that day;
b) when she got there, both the front door and fly wire door were open; and
c) the only people in the house for the whole time she was there were herself, the infant and Ms Huata.
These three statements were false. The intended effect of them was to avoid implicating Mr Minhinnick, and to open at least a possibility that an intruder or some other person had killed Ms Huata.
Arrest and interview
Five days later, on 15 February 2022, Ms Jensen was arrested and interviewed by police. She admitted that she went to the Glendale Road address at 2:30 a.m. after receiving calls from Mr Minhinnick. When she arrived, she was greeted by him. There was blood on Mr Minhinnick and around the house. Later, he left, as did Ms Kawana and Mr Hosking. She then called triple-zero.
Following that interview, Ms Jensen was released without charge.
Procedural history
On 29 March 2022, however, she was charged with assisting an offender.[3]
[3]Contrary to s 325(1) of the Crimes Act 1958 (Vic).
On 1 August 2022, she was committed for trial in this Court pursuant to the fast‑track procedure.
Joint pre-trial hearings were conducted in this Court in relation to Ms Jensen and Mr Minhinnick’s matters on 14 October and 13 and 14 December 2022.[4] Thereafter, the assisting offender charge against Ms Jensen was withdrawn and, on 10 February 2023, an indictment charging perjury was filed.
[4]Conducted pursuant o s 198B of the Criminal Procedure Act 2009 (Vic).
At a case conference on 28 March 2023, Mr Norton, who appeared for Ms Jensen, indicated that he would be challenging the admissibility of the signed statement forming the basis of the perjury charge. He also made it clear that, if that challenge failed, Ms Jensen would plead guilty to the charge forthwith. Equally, Mr Glynn, who appeared for the Director of Public Prosecutions, made it clear that, if that challenge succeeded, the Director would discontinue the prosecution. Thus, either way, there was to be no trial.
Following a voir dire conducted on 12 and 25 May and 1 June 2023, I ruled that the statement was admissible and should not be excluded from evidence.
As promised, on 13 June, Ms Jensen then pleaded guilty, and a plea in mitigation was conducted.
Plea in mitigation
Personal circumstances
By any measure, Ms Jensen has had a very sad and difficult early life.
She has never known her father. Her mother was engaged in sex work and used illicit drugs heavily.
Ms Jensen was born in 2003, her mother’s second child. Seven years earlier, when only 16, her mother gave birth to Ms Jensen’s sister Theresa Terbizan. When Ms Jensen was 16, her mother committed suicide.
Ms Jensen grew up in the south-eastern suburbs of Melbourne. When she was a child, the family moved around an alarming amount. As a result, she attended in the order of 16 different primary schools (including five in her prep year), three secondary schools, and a TAFE. Unsurprisingly, she struggled to make and keep friends.
As Ms Terbizan explained in her reference, this was made worse by their mother, who would get into fights with other parents, which would cause Ms Jensen to lose friendships and end up being bullied. On one occasion, the bullying was so extreme that she was given a special exemption to move to a primary school out of her schooling zone.
Ms Jensen’s mother suffered from bipolar disorder, schizophrenia, PTSD, depression, and multiple‑personality disorder. Ms Terbizan’s earliest memories of their mother include that she was often too high to get out of bed, passed out on the couch, suffering depressive episodes, or engaging in explosive outbursts for no apparent reason. At a very young age, the children had to learn to walk on eggshells to avoid the more damaging effects of their mother’s volatile behaviour.
Perhaps worse still, their mother would often be away for days on end, and they would hear nothing from her as to her whereabouts, which worried them sick. They were concerned that she would die, either by her own hand or at the hands of others, as she put herself in dangerous situations through her criminal offending, her drug use, and her work in the sex industry.
Ms Terbizan was often left to look after her sister, even when she was a toddler. There were times when Ms Jensen was left malnourished and covered in bruises.
Ms Terbizan also remembers that, when their mother was around, there would be strangers in various states coming and going at all hours, whether they be connected with drug use or sex work.
When Ms Jensen was seven, her mother was imprisoned for about a year. During this period, she went to live with her sister and their grandparents. This, she said, felt like a blessing.
After that stint in prison, Ms Jensen’s mother was stable for a time, but then fell back into heavy drug use. This led to homelessness for long periods, including a period of months when the two of them were living out of a car. Her mother would service clients from the car. This meant that Ms Jensen had to be left alone somewhere for a time and then picked up later. Ms Jensen recalls one occasion on which a client refused to allow her to be dropped off as it was too hot outside.
One of Ms Jensen’s only positive experiences in adolescence was to participate with her sister in the cheer squad of the St Kilda (AFL) Football Club. She enjoyed being involved with her sister in this community group, making banners, meeting others, and going along to support the club. As we shall see shortly, despite those who would deny her this opportunity initially, it is a positive community activity connected with football that she has become involved in again in recent times, and which has been a source of pride and fulfilment in connection with a positive relationship.
At 14, Ms Jensen was told, by her mother, of her father’s name. Ms Jensen went to meet this man in prison. As time passed, she began to doubt that he was her father. Later, after her mother committed suicide, Ms Jensen learned categorically that the man was not her father. Instead, she and her sister discovered that their mother had been seeking to advance, and use Ms Jensen in, some sort of scam.
After her mother’s death, Ms Jensen lived with friends in the south‑east of Melbourne. She worked at McDonald’s and Nando’s, and was working at the time of the offence.
Just over a year ago, Ms Jensen moved to the small town of Cobram (up on the border between Victoria and New South Wales) to live with her grandparents. She began working at a café restaurant and then at a sports club.
Unfortunately, however, the townsfolk got wind of her having been charged as an accessory to murder, and she was branded by some as a murderer. As Mr Norton said, country towns can be very supportive and caring environments, but they can also be unwelcoming and sometimes cruel.
Happily, however, amid all those difficulties, Ms Jensen has had some good fortune. She met Peter Francis, aged 22, and has formed a close relationship with him. He lives and works in Cobram. As Mr Norton explained, unlike many she has mixed with in the past, Mr Francis is a solid citizen. He works as a cabinet maker and is involved in coaching junior football at a local club, having played there before suffering a knee injury.
In his reference, Mr Francis explained that, after Ms Jensen was treated very harshly and unfairly initially by some locals, both in terms of employment and socially, things changed. As he said:[5]
[5]I have edited this reference slightly, mainly to correct some minor errors.
It finally eased up with the club when they noticed how much she does for me, and how painfully breaking it became for us. The club came and sincerely apologised for last year, offering her a “job” working alongside me, helping manage the teams I coach, and she’s been nothing but amazing and supportive of everything I put my foot forward to do.
Every Friday night she’ll be the first to be ready and out the door eager to help manage the under 12s … side I coach (truthfully, I think she just likes getting to wear her St Kilda stuff), along with our Saturdays consisting of footy from sometimes as early as 7:00 a.m. till 5:00 p.m. in which she helps me manage the under 17s side that I coach for [the club].
As grateful as [I am] not only [to] her, but [also to] the [club for] finally taking her in, it doesn’t do enough justice to cause the mental and physical pain this town has put upon her.
Truly, I couldn’t be more in love with this girl. For all she’s been through she made it out with such a unique and deserving personality about herself. My family couldn’t be more in love with the woman I’ve chosen to spend my life with. And I truly hope one day we’ll finally be able to continue and create that family for ourselves. We’ve been through a lot, and I’ve noticed she’s losing herself since the unfortunate miscarriage of our twin babies earlier this year. Between the way this town has treated her, treated her pregnancy and treated us, I pray … every day she’ll make it out the other side with me.
She’ll never believe she deserves anything better than the life she’s been dealt, and I’ll spend the rest of my life proving to her she never deserved the life she had been dealt.
She’s all the best of me. She truly is the best of anyone that gets a genuine chance at a friendship with her.
I pray we have a long and full life together, one where this trauma isn’t her security blanket [that] she’s holding onto for comfort, but a life we know to be true that’s worth living.
Despite her misguidance and neglect, I can honestly say I am so proud to have found love with such a wonderful person. She became something I know her mother never would’ve taught or shown her to become.
I should add that I accept the things said by Mr Francis and Ms Terbizan in their references, which were received in evidence without objection and were not challenged in any respect by Mr Glynn.
Gravity of offence
In mitigation, Mr Norton pointed to several factors, which I accept, placed her offence of perjury in a less serious light.
First, upon her arrival and later when on the triple‑zero call, Ms Jensen tried to resuscitate Ms Huata.
Second, Mr Norton emphasised the pressure Ms Jensen must have felt when she arrived and discovered what Mr Minhinnick must have done. She was only 18, and was his girlfriend. On the evidence I have heard on the voir dire and from the depositions, it is also plain from her presentation on that day, and from the things Ms Jensen said in her interview with police five days later, that she was in a distressed state when she was dealing with what confronted her upon her arrival and when she committed herself to a version of events with police when they arrived, which only became perjury once she signed the statement later that evening. Her interview also reveals that some of the troubles concerning her mother that afflicted her earlier life were running through her mind when she saw Ms Huata and when she spoke to the police in the lead‑up to signing her statement.
Third, Ms Jensen had neither independent support nor any legal advice at the time she made the statement. I dare say that, had she had access to legal advice, she would not have committed the offence.
Fourth, as soon as Mr Minhinnick left, Ms Jensen rang triple‑zero and did as the operator told her.
Fifth, unlike others, she stayed and looked after Ms Huata’s infant child. Neither Ms Kawana nor Mr Hosking stayed, despite being involved in cleaning up blood. As Mr Norton put it, Ms Jensen was left holding the baby, both literally and metaphorically.
Sixth, it is one thing to swear or affirm a false affidavit in a court proceeding or to lie on oath or affirmation when giving evidence in court, but it is another to sign and acknowledge a written statement to police that is false in some respects. Unhelpful as it might be to tell police an untruth, there is no offence of perjury in merely doing so. Rather, it is only when a person signs and acknowledges a statement containing a falsehood that it becomes perjury. If every such falsehood were prosecuted as perjury, the courts would be inundated with perjury trials. In my experience, many false statements far more egregious and potentially damaging than Ms Jensen’s have not resulted in charges of perjury.
Seventh, Ms Jensen’s perjury persisted only until her admissions in the police interview five days later. Yet police already had determined well before that time that Mr Minhinnick was their man. While her perjury might have been capable of deflecting the police in their task, it is hard to see how it did in fact have that effect either at all or at least in any meaningful way.
On the other hand, while I understood him to accept the foregoing points, Mr Glynn was right to emphasise various matters about the offence, including the following.
First, the motive for the offence was to conceal Mr Minhinnick’s involvement in killing his mother. While Ms Jensen’s falsehoods may have had no meaningful effect, they were designed to deflect police by raising the possibility that another was responsible for Ms Huata’s death.
Second, while there may have been implicit pressure that arose from the circumstances in which Ms Jensen found herself when she arrived at the house on that morning, there was no evidence or suggestion of any threat by Mr Minhinnick to force her to lie for him.
In my view, as far as perjuries go, while it is a serious thing to lie in a signed police statement (with a jurat) at any time, and particularly in the context of a homicide investigation, for the reasons I have given, I regard this particular offence as falling towards the lower end of gravity and as involving a comparatively low level of moral culpability.
Good character
Mr Norton submitted, persuasively, that Ms Jensen is exceptional, and has shown remarkable resilience, to have come through her early life with no prior convictions at all. Instead, as her involvement in the community with her partner shows, she is a person of positively good character. Mr Glynn also confirmed that she has no outstanding charges.
Admissions
Next, as we have seen, when interviewed five days later, Ms Jensen made admissions to lying in her police statement. Thus, to some extent, she made the case against herself.
Mr Glynn submitted that she still did not give the whole truth in her interview (or, for that matter, in her subsequent police statement). For example, she did not tell the police what Mr Minhinnick told her. That is as may be, but it does not alter the fact that she admitted to the factual basis for the charge that was subsequently laid against her.
Willingness to give evidence
Another mitigating consideration is that, while, for various reasons, the Director did not take it up, Ms Jensen offered to give evidence in the trial of Mr Minhinnick, well before he pleaded guilty.
Plea of guilty
Next, Ms Jensen’s plea of guilty is an important mitigating factor. I accept that that plea should be treated as being made at an early stage. As Mr Norton submitted, while it was not temporally early vis‑à‑vis the proceedings as a whole, it came soon after the assisting an offender charge was dropped and the perjury charge was laid. Further, she had indicated before the voir dire that, should the exclusion argument fail, she would plead guilty, which, true to her word, she did.
Extra-curial punishment
Next, I accept that Ms Jensen has suffered extra-curial punishment from the opprobrium apparent in the attitudes of others towards her and the perception, inaccurate though it has been, at least in part, of her behaviour. This, I am satisfied, has impacted on her socially and in terms of employment, and no doubt she has felt it personally. I expect that, to some extent, these attitudes will persist, and unfairly so.
Prospects of rehabilitation
Finally, given her admissions, her offer to assist the authorities, her plea of guilty, her previous good character, her work history, her age and her present personal circumstances, including the support she has from her sister and Mr Francis, I am satisfied that Ms Jensen has excellent prospects of rehabilitation.
Current sentencing practices
Section 5(2)(b) of the Sentencing Act 1991 (Vic) requires that, in sentencing an offender, a court must have regard to current sentencing practices.
Sometimes, case comparisons may assist in gauging current sentencing practices. However, I was not referred to, and have not considered, any individual sentencing decisions for this purpose.
I have, however, paid some regard to sentencing statistics for perjury. In their SACStat for sentencing outcomes in the higher courts for perjury between July 2016 and June 2021, the Sentencing Advisory Council noted that, of the 41 sentences imposed, 15 involved imprisonment, and the rest involved community correction orders (“CCOs”) (nine), fines (two) and “other” (15). The same source shows that, in the Magistrates’ Court between July 2018 and June 2021, of the 74 sentences for perjury, 20 involved imprisonment, and the rest involved CCOs (18), fines (16), adjourned undertakings (19) and “other” (one).
Sentencing statistics are of limited value, because they do not distinguish cases according to important sentencing considerations. But they do give some guidance. As will be seen, these statistics are at least consistent with the submissions of counsel as to the sentence that is open and that which, as it happens, I have determined to impose in this case.
Submissions
Mr Norton submitted, and Mr Glynn accepted that it would be open to conclude, that an undertaking to be of good behaviour would be an appropriate sentence.
Where counsel differed was on whether a conviction should be recorded or not. Mr Glynn submitted that the deliberate nature of committing perjury to throw detectives off the trail in a homicide investigation is a serious matter meriting a conviction. Mr Norton, on the other hand, emphasised, among other things, Ms Jensen’s young age, her previous good character, the nature and circumstances of the offence, and the potential employment and social impact on her of recording a conviction.
Sentence
Balancing all matters as best I can, I accept that it is open and appropriate to sentence Ms Jensen to an adjourned undertaking to be of good behaviour. In my view, such a sentence adequately caters for all sentencing purposes, including general deterrence, denunciation, just punishment, specific deterrence, protection of the community and rehabilitation, as well as the principle of parsimony.[6]
[6]See ss 5(1) & (3)-(7) of the Sentencing Act 1991 (Vic).
On the question whether or not to record a conviction, s 8(1) of the Sentencing Act provides as follows:
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
a)the nature of the offence; and
b)the character and past history of the offender; and
c)the impact of the recording of a conviction on the offender’s economic or social well‑being or on his or her employment prospects.
While I accept that the offence had the serious features identified by Mr Glynn, for the reasons I have given, I consider that this is an instance of perjury towards the lower end of the scale of gravity involving a relatively low level of moral culpability in respect of which it is open to decline to record a conviction. Further, it is significant that Ms Jensen has no prior convictions or findings of guilt, and appears to have been, and to be, a person of positively good character through her contributions to the community. Finally, while it may be correct to say that whether or not a conviction is recorded is unlikely to affect Ms Jensen’s ability to continue with her involvement in junior football, I accept that a conviction is likely to impact adversely on her employment prospects and her social well-being. Also, it must be remembered that Ms Jensen was only 18 when she committed this offence. It is, I think, a serious thing to lumber one so young with a conviction for perjury. Thus, in all the circumstances, I am persuaded that the sentence should be without conviction.
Accordingly, on the charge of perjury, pursuant to s 75 of the Sentencing Act, the matter is adjourned for six months, and Ms Jensen is released on an undertaking to be of good behaviour for that period, without conviction.
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