R v Lindsay Ronald Jensen

[2007] NSWDC 15

CITATION:	R v Lindsay Ronald Jensen [2007] NSWDC 15
HEARING DATE(S):	11/12/06 - 15/12/06
JUDGMENT DATE:	16 January 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Sentence of imprisonment imposed
CATCHWORDS:	Sentence - Indecent Assault - Sexual Intercourse with child under 10
PARTIES:	Crown Lindsay Ronald Jensen
FILE NUMBER(S):	06/11/0074
COUNSEL:	Ms K Shead (Crown) Mr P Byrne SC (Accused)
SOLICITORS:	Ms J Purches (Crown) Mr G Walsh (Accused)

JUDGMENT

The Charges

1 On 18 December 2006, a jury found the offender guilty of four counts of indecent assault on a child under ten years old, and one count of sexual intercourse with a child under ten. Each of the incidents occurred between 28 February 2002 and 1 January 2003, when the victim was nine years old.

2 In an earlier trial before Judge Knight, a jury found the offender guilty of 3 offences against the victim's older sister. Those offences occurred between 31 January 2002 and 16 May 2002, when the victim's sister was more than ten years old. The offender has not yet been sentenced for those offences.

3 The maximum available penalty for an offence of indecent assault on a child under 10 is 10 years' imprisonment. The maximum available penalty for an offence of sexual intercourse with a child under 10 is 20 years' imprisonment. Because of the age of the subject offences, no standard non parole period applies.

The Offences

4 The offender and the victim lived in country New South Wales. The victim's parents were separated. The offender and his family, and the victim's mother and her children were members of the Exclusive Brethren, a religious sect. The families had a close social relationship.

5 In early 2002, the victim's mother suffered a serious injury. During the remainder of 2002, while their mother was receiving treatment or convalescing, the victim and, on occasions, her sister, stayed at the offender's house for periods of a week or longer. Each of the incidents occurred while the victim was staying with the offender's family, ie while the offender had immediate responsibility for the victim's well-being. The offender was someone whom the victim "really trusted". The offender and the victim would exchange hugs"just like you would hug your mum or dad".

6 The circumstances in which offences occurred were as follows.

Count 1. Indecent Assault. The victim was sitting in the offender's lap in an armchair. He rubbed her over the genital area, on the outside of her clothing.

Count 2. Sexual Intercourse. The offender lay on his bed with the victim and digitally penetrated her. The incident lasted a few seconds. It "really hurt", and the victim was concerned that she may have been permanently injured.

Count 3. Indecent Assault. While the victim and the offender's family were returning by car from a church meeting in another town, the offender reached into the back seat, where the victim was sitting, slid his hand under her dress and undies, and touched her genital area.

Count 4. Indecent Assault. At night, the victim was lying on the bottom bunk in the bedroom which she occupied in the offender's house. The offender stood beside the bunk and placed her hand on his penis, over his clothing.

Count 5. Indecent Assault. The offender lay beside the victim on her bunk bed, hugged her and put her hand on his penis, over his clothing.

7 Although the offender cannot be punished for uncharged conduct, it is relevant that the offences were not isolated incidents. For the purpose of placing the charged incidents in their proper context, the victim gave evidence of other, uncharged conduct, including the offender rubbing near the top of her thighs.

Victim Impact

8 As one would expect of a child of nine, during the period when the incidents were occurring, the victim was confused about the morality of the offender's conduct. The offender is 6.5 feet in height and weighed about 100kg. His presence is imposing, even to an adult, let alone a girl of nine years. The victim perceived that "the offender had a lot of power over (me)".

9 On sentence, the victim elected to provide no information regarding the impact of the offences upon her. However, it is obvious from the nature and circumstances of the conduct, that it must have had a significant psychological impact. I acknowledge the victim's psychological suffering and hope that it is not exacerbated by the publicity that will undoubtedly continue to accompany this case, apparently because of the offender's former association with the Exclusive Brethren sect.

Objective Seriousness

10 The Crown conceded that the offence of sexual intercourse fell below the mid range of objective seriousness. It was a brief incident. It did not involve penile penetration or other penetration of a very serious nature. There is no evidence of physical injury.

11 Count 3 is a charge of some objective seriousness in that it involved direct contact with the victim. The other incidents involved contact through clothing. All incidents of indecent assault were of brief duration.

12 The matter which aggravates the objective seriousness of the offences is that they occurred while the offender was an adult with immediate responsibility for the victim's welfare.

The Offender's Circumstances

13 The offender is 49 years old (date of birth 26 October 1957).

14 The offender is the older of two children. He was raised in country New South Wales. He was educated to year 10 standard. After working as an apprentice electrician, the offender started his own business.

15 Over the last 20 years, the offender and his wife have successfully operated that business. The business supports the offender's wife and children. Unfortunately, the business is now ailing. The offender's wife has long suffered from depression, and her condition has worsened in recent times. Her depression prevents her from devoting herself to management of the family business. The couple's 21-year-old son is attempting to manage the business, with difficulty. If the business fails, the offender's family is at risk of great financial loss.

16 Throughout their lives, the offender and his family have been members of the Exclusive Brethren religious sect. The offender's wife and children have now been allocated a limbo type of status within that sect, such that they receive no support from their chosen church. Nor do they have any family support in the area of regional New South Wales in which they reside.

17 While I am sympathetic to the plight of the offender's family, the circumstances are not so exceptional as to affect the appropriate penalty.

18 The offender has been married for 25 years. He has five children, who are currently aged between 15 and 23 years. The offender has been a caring and supportive father towards his own children, who dearly love him. His oldest daughter suffers from physical and behavioural handicaps, and the offender has always supported and assisted her. The offender's wife continues to support him.

19 In custody, the offender is receiving treatment with antidepressant medication. He has sought counselling and support from the prison chaplain.

Section 21A

20 In sentencing the offender, I am obliged to take into account the aggravating and mitigating factors set out in section 21A of the Crimes (Sentencing Procedure) Act. The only relevant aggravating feature is that the offender held a position of trust and authority.

21 The only relevant mitigating features are that the offender does not have a record of previous convictions and is a person of otherwise good character. The offender's lack of prior criminal convictions is of some significance, particularly as he is 49 years old (approximately 42 years of age at the date of the offences). However, there are five offences, which were not isolated incidents. During the period in which the five offences occurred, the offender committed other offences against the victim's sister. In any event, regrettably, it is often the case that convictions for offences of this type are recorded against persons who otherwise have no prior criminal convictions and enjoy good professional and personal reputations.

22 The offender continues to deny responsibility for the offences. Rather, he sees himself as a victim of the criminal justice system. He has no interest in participating in a sex offenders' programme. Consequently, it is difficult to assess his likelihood of reoffending. I cannot conclude that he is likely to be rehabilitated or is unlikely to re-offend.

Other Sentencing Considerations

23 In sentencing for offences of this type, the need for general deterrence is of great importance. There is a social responsibility to protect young people from sexual exploitation. In particular, persons who hold positions of trust and responsibility vis-a-vis young people must be aware that, if that trust is breached through sexually exploitive conduct, the consequence will be a heavy penalty.

24 I have considered the Judicial Commission statistics. I am aware of the danger of slavishly adopting the general approach reflected in those statistics, particularly as few details are known of the cases comprising the sample, so it is difficult to make meaningful comparisons.

25 Currently, the offender is incarcerated at Parklea Prison. At his own request, he has been placed on protection. He has been subjected to threats of physical violence. After he is sentenced, it is likely that he will be placed on strict protection to reduce the risk of physical attack upon him. If so classified, it will be difficult for the offender to access the resources (such as educational and exercise resources) which are available to the general prison population. The Crown does not dispute that the conditions in which the offender is likely to be imprisoned will be more onerous than those which apply to the general prison population. It is my view that the circumstances of the offender's incarceration are most appropriately taken into account in the length of the sentences which are imposed, although they are also relevant to the question of special circumstances.

26 There are special circumstances which justify a variation in the usual relationship between the effective non parole period and the effective balance of term, i.e. that this is the offender's first sentence of imprisonment and, because there is doubt about his prospects of reoffending, following his release, he needs to be supervised for a long time.

27 As the offences occurred on five separate occasions over a period of several months (not necessarily the whole of the ten month period referred to in each charge), it is appropriate that the sentences for indecent assault be made concurrent and the sentence for sexual intercourse be partly accumulated on those sentences. The Crown agrees with that approach.

Sentences

Count 1.

9 month fixed term 18.12.06 – 17.09.07

Count 2.

2 ½ year non-parole period 18.06.07 – 17.12.09

2 year balance of term, expiring 17.12.11

Count 3

2 year fixed term 18.12.06 – 17.12.08

Count 4

18 month fixed term 18.12.06 – 17.06.08

Count 5

21 month fixed term 18.12.06 – 17.09.08

The offender is eligible for release to parole on 17.12.09. In effect, I have imposed a sentence of 5 years’ imprisonment, of which the offender will have to serve 3 years before he is eligible for release to parole

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