R v Janssen - [2007] NZCA 450

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 377/07 [2007] NZCA 450

THE QUEEN

v

THEODORE FRANCIS JANSSEN

Hearing: 8 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: T F Rickard-Simms for Appellant
S B Edwards for Crown

Judgment: 18 October 2007 at 10 am

JUDGMENT OF THE COURT

A. The appeal is allowed.

B. The two special conditions imposed by the sentencing Judge governing where Mr Janssen is to live and precluding him from approaching or entering places of risk are set aside by consent.

C. The standard conditions imposed on Mr Janssen will continue to apply.

He will also remain subject to the special condition prohibiting him from any unsupervised contact with children under 16 and the remaining
special conditions imposed.

R V JANSSEN CA CA 377/07 18 October 2007

REASONS OF THE COURT

(Given by Keane J)

[1] On 4 July 2007 Theodore Janssen, a 73 year old retired school teacher, was sentenced to five months imprisonment for indecently assaulting a 16 year old girl in May – July 1988. The sentencing Judge, Judge Barry, also imposed on Mr Janssen under s 93(1) of the Sentencing Act 2002 both standard and special conditions on release to apply until December 2008, six months after 17 June 2008, the date on which his sentence expires. Because Mr Janssen’s statutory release date is 2
December 2007 they will govern his life in the community for a year.

[2] Mr Janssen accepts that the term of imprisonment imposed was inevitable. He seeks rather to have quashed three of the six special conditions imposed, which require him after his release date (i) to live at an address approved by a probation officer and not to leave it for any other address without prior approval; (ii) not to have any form of contact with anyone under 16 years unless directly supervised by an informed adult; and (iii) not to go within 100 metres of schools, kindergartens, parks and recreational areas unless under the supervision of an adult approved by his supervising officer.

[3] On this appeal Mr Janssen contends that these conditions, of which he had no notice before they were imposed, will not promote his rehabilitation or assist him to reintegrate into the community. Nor are they necessary to provide for the reasonable concerns of victims or to reduce the risk that he might re-offend. They are impractical and disproportionate. They subject him to double jeopardy.

Conditions imposed without notice

[4] These three special conditions, and the other three such conditions the Judge imposed on sentence, were recommended by the Probation Service in their report, dated 2 July 2007, issued just two days before sentence. The report is silent as to why they were recommended. However, Mr Janssen had been before the Court twice

in the preceding year, on the second occasion just a month before this sentence was imposed. The Service relied on…

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 Janssen

Details

AGLC: R v Janssen [2007] NZCA 450
Case: [2007] NZCA 450
Decision Date: 18 October 2007

CaseChat Overview and Summary

In the case of R v Janssen, Theodore Francis Janssen, a retired school teacher, appealed against the conditions imposed on his release from a five-month imprisonment sentence for indecently assaulting a 16-year-old girl in 1988. The sentencing judge had imposed both standard and special conditions, including restrictions on where Janssen could live, prohibiting unsupervised contact with children under 16, and preventing him from approaching certain locations without supervision. Janssen argued that these conditions were disproportionate, impractical, and imposed without notice, and that they did not serve the purposes of sentencing or rehabilitation.

The Court of Appeal of New Zealand examined the legal issues, including whether the special conditions were designed to reduce the risk of reoffending, facilitate rehabilitation, or address the concerns of victims, as required by the Sentencing Act. The Court noted that while the special conditions were within the discretion of the sentencing judge, they needed to be proportionate and related to the precise criminality of the offence. The Court found that the conditions governing residence and proximity to certain locations were too restrictive and not essential for community safety. However, the condition prohibiting unsupervised contact with children under 16 was considered necessary due to Janssen's interest in sexual images involving minors and his previous offences against adolescent girls.

The Court allowed the appeal in part, setting aside the two special conditions on residence and proximity to certain locations. The standard conditions on residence would apply, and Janssen would remain subject to the condition prohibiting unsupervised contact with children under 16 and the other special conditions imposed. The Court emphasized the need for conditions to be proportionate and tailored to the offender, balancing the interests of the community, the offender, and the victims.

Orders