R v Jensen; ex parte - [1998] QCA 275

IN THE COURT OF APPEAL [1998] QCA 275
SUPREME COURT OF QUEENSLAND

C.A. No. 477 of 1997.

Brisbane
[R v. Jensen; ex parte A-G]

T H E Q U E E N

DUDLEY PETER JENSEN

Respondent

and

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

[R v. Jensen] C.A. No. 8 of 1998.

T H E Q U E E N

DUDLEY PETER JENSEN

Appellant
___________________________________________________________________________
de Jersey C.J.
Pincus J.A.
Derrington J.

___________________________________________________________________________
Judgment delivered 11 September 1998
Judgment of the Court
___________________________________________________________________________
C.A. No. 477 of 1997
ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE ALLOWED. SENTENCES
IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF SENTENCES OF 4 YEARS
IMPRISONMENT IMPOSED WITH A RECOMMENDATION THAT MR JENSEN BE
CONSIDERED FOR PAROLE AFTER SERVING 1 YEAR.
C.A. No. 8 of 1998

CATCHWORDS:

CRIMINAL LAW - Attorney-General’s appeal against sentence - judge imposed a sentence of 3 years imprisonment wholly suspended - whether a wholly suspended sentence was completely out of line with established authority - where large amount misappropriated from women who placed offender in a position of trust.

CRIMINAL LAW - conviction - misappropriation - over $200,000 misappropriated - funds taken from accounts of two women who had given appellant power of attorney - appellant charged with 3 counts of misappropriation but only convicted on 2 counts - whether there was such an inconsistency in the jury’s verdicts as to show that justice had miscarried - whether trial judge erred in allowing the prosecutor to further cross-examine the appellant after he was re- examined.
Counsel: Mr A Vasta Q.C. with him Mrs D Richards for the respondent/ appellant
Mrs L Clare for the appellant/respondent.
Solicitors: Legal Aid Queensland for the respondent/appellant.
Director of Public Prosecutions (Queensland) for the appellant/
respondent.
Hearing date: 24 July 1998.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11 September 1998

Mr D P Jensen appeals against his conviction on two counts of misappropriation, and the Attorney appeals against the sentence imposed on Mr Jensen, which was one of 3 years imprisonment, wholly suspended.
In broad outline, the Crown case was that over a period of five years beginning late in 1987, Mr Jensen took funds amounting to well over $200,000, for his own purposes, from the accounts of two old ladies who had given him power of attorney. According to the Crown case, the two women were senile for all or most of the period during which the money was abstracted from the accounts and Mr Jensen had no authority to take it. He said in effect that the withdrawals were all authorised and that most of them constituted loans to him.
There is also before us an Attorney’s appeal against sentence; it is said in that appeal that the imposition of a non-custodial sentence in respect of the abstraction of such a large sum is quite out of line with the trend of authority and, in the circumstances of the case, completely unjustifiable.
Appeal against conviction
Mr Vasta Q.C., who led Mrs Richards…

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 R v Jensen; ex parte

Details

AGLC: R v Jensen; ex parte [1998] QCA 275
Case: [1998] QCA 275
Decision Date: 11/09/1998

CaseChat Overview and Summary

In the matter of R v Jensen; ex parte, the appeal was brought before the court by the Attorney-General against the sentence imposed by a lower court. The respondent, Jensen, was convicted of misappropriating a significant sum of money from several women who had placed him in a position of trust. The trial judge had sentenced Jensen to three years imprisonment, but this sentence was wholly suspended. The Attorney-General sought to challenge the appropriateness of the wholly suspended sentence, arguing that it was inconsistent with established legal principles and precedents.

The central legal issue before the court was whether the wholly suspended sentence imposed by the trial judge was entirely disproportionate to the nature and circumstances of Jensen’s offence. The court needed to consider the gravity of the crime, the amount of money misappropriated, and the breach of trust involved. The Attorney-General contended that the sentence failed to adequately reflect the seriousness of the offence and the need for deterrence and denunciation. The court was required to balance these considerations against the principles of sentencing that advocate for the rehabilitation of offenders and the protection of the community.

In delivering the judgment, the court found that the wholly suspended sentence was indeed out of line with established legal authority. The court emphasised the need for sentences to reflect the seriousness of offences involving significant breaches of trust and substantial financial loss. It was noted that wholly suspended sentences are reserved for cases where the offender is unlikely to reoffend and the offence is of a relatively minor nature. Given the circumstances of Jensen’s case, the court concluded that the sentence did not appropriately address the gravity of the offence or serve the purposes of sentencing as required by law. As a result, the appeal was upheld, and the matter was remitted for re-sentencing.

Orders