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 its two earlier reports.

[5]      On 19 May 2006 Mr Janssen had been sentenced to 300 hours community work for indecently assaulting a girl aged between 12 and 16 on 8 October 1982. His circumstances were then fully set out in a report dated 23 March 2006. The Judge had also a very recent report dated 8 May 2007. Mr Janssen had been sentenced on

18 May 2007 to eight months imprisonment for 18 offences of possessing objectionable publications. The five month term imposed was cumulative on that sentence.

[6]      Be that as it may, the special conditions recommended came as a complete surprise to Mr Janssen and his counsel. Mr Janssen should have been interviewed before his 2 July 2007 report was prepared. He was not. As a sentenced prisoner he was dependent on the Department of Corrections arranging that to happen. It did not. Neither he nor his counsel had or knew of the report before or even at the sentencing hearing. The Judge, no doubt assuming that Mr Janssen’s counsel had access to the report, said nothing about the conditions before imposing them.

[7]      Had Mr Janssen been allowed the opportunity, he would have opposed all three conditions.   Two of the conditions, those governing where he is to live on release and how close he may go to places of risk unsupervised, he would have opposed for a particular reason. On his release he wishes to return to the home that he and his wife have shared for 40 years, a property immediately adjacent to a primary school.

[8]      The  Crown  accepts  that,  had  Mr  Janssen  been  interviewed,  those  two conditions would never have been recommended. There was never any intent, the Probation Service accepts, to preclude Mr Janssen from  returning to  his  family home. The Crown agrees that these two conditions should go, but proposes instead a variant of the first that would, in an otherwise unchanged condition, allow (indeed require) Mr Janssen to live at home. He could not live elsewhere without consent.

[9]      Mr  Janssen  opposes  that  variant  also,  this  time  as  going  too  far  in  the opposite direction. It would compel him to live at his home with his wife unless he obtained consent to live elsewhere. He does wish to return to his home. However, he and his wife are effectively estranged. How sustainable living there will be he cannot presently predict. He wishes some latitude. He does accept the standard conditions governing residence that the Judge also imposed. These would permit him to live where he wishes within the Probation area as long as he tells his supervising officer where that is. They would accord to his supervising officer a right of veto.

[10]     Mr Janssen also opposes as unrelated to his offence for sentence, or his offending as a whole, and as disproportionately absolute, the third condition prohibiting him from any contact with anyone under 16 years unless directly supervised by an informed adult. The Crown considers this condition remains indispensable.

[11]     These  are  the  very  issues  that  the  Judge  would  have  had  to  weigh  on sentence, had Mr Janssen’s counsel then been equipped with the 2 July 2007 report. As it is, they must now be resolved on this appeal in a fresh exercise of the statutory discretion conferred for exercise on sentence.

Conditions must not be disproportionate

[12]     In imposing the special and standard conditions to apply on Mr Janssen’s release the Judge exercised the discretion given by s 93(1) of the Sentencing Act which says:

A court that sentences an offender to a term of imprisonment of 12 months or less may impose the standard conditions and any special conditions on the offender and, if it does so, must specify when the conditions expire.

[13]      This discretion must be exercised consistently with the prohibition in s 93(3)

which says:

A special condition must not be imposed unless it is designed to – (a)       reduce the risk of reoffending by the offender; or

(b)facilitate  or  promote  the  rehabilitation  and  reintegration  of  the offender; or

(c)      provide for the reasonable concerns of victims of the offender.

[14]     As  an  element  of  sentence  any  condition  imposed  must  also  serve  the purposes of sentencing set out in s 7(1), perhaps most pertinently the need:

(g)      to protect the community from the offender; or

(h)      to assist the offender’s rehabilitation and reintegration …

[15]     The discretion must also be exercised consistently with the principles in s 8 of the Sentencing Act, the first five of which (those in paragraphs (a) – (e)) require that any condition imposed relate explicably to what has been described succinctly as “the precise criminality”: R v Meroiti CA392/99 26 October 1999 at [6], quoting R v Duffy (1994) 15 Cr App (s) 667 at 681. And that must include an assessment of the effect of the offence on any victim: s 8(f).

[16]     The  remaining  purposes  of  sentence  are  no  less  germane.  The  sentence imposed must be the least restrictive outcome appropriate: s 8(g). It must also be tailored to the offender. Account must be taken of any factor personal to the offender that would make a usual sentence disproportionately severe: s 8(h).  One of the purposes of conditions on release is,  moreover,  to  rehabilitate and  to  assist  the offender to reintegrate. Personal, family, whanau, community and cultural factors can be no less relevant: s 8(i).

[17]     Finally, because the special conditions able to be imposed derive in the main from those set out in s 15(3) of the Parole Act 2002, the principle in s 7(2) of that Act that guides the Parole Board has an implicit and helpful place. Any condition imposed ought not to be “more onerous, or last longer, than is consistent with the safety of the community”. As a sentenced prisoner, Mr Janssen’s freedoms of association, movement and residence, secured to him by s 17 and 18(1) of the New Zealand Bill of Rights Act 1990, may be circumscribed. They are not to be ignored.

[18]     Mr Janssen’s most basic point, leaving aside the absence of notice, is that the Judge imposed special conditions on him that do not relate sensibly to the precise criminality of the offence for which he was sentenced, and can only be justified as a belated response to his earlier offending.  Indeed, he would say, they cannot be justified in that way either. They are designed to constrain offenders who prey upon pre-pubescent children wherever they are accessible. He is not, and his offending does not show him to be, he says, a paedophile.

[19]     The offence for sentence, he points out, was historical. It occurred 20 years ago. The girl was a pupil of his. She had attained 16 years. The victim of his very first offence, likewise, though a girl under 16 years, was again a pupil and that offence was even more historic. It occurred in 1982. His 2005 offence, while contemporary,  is,  he  says,  no  more  suggestive.  The  images  of  pre-pubescent children, which he was sentenced for possessing, were a tiny fraction of the many others, 70,000, that he then possessed.

[20]     We cannot accept this submission. It assumes that the Judge’s ability on sentence is more circumscribed than it is. On sentence a judge must of course impose a sentence right for the offence. But he or she must also, as s 93(3) itself illustrates, impose a sentence right for the offender. An offender is not to be seen simply as a mosaic of his or her convictions. He or she must be seen in the round. The only issue can be whether the conditions the Judge imposed reconcile with the three purposes s 93(3) makes mandatory (and which express in the broadest way what the wider statutory regime requires).

[21]     There is and can be no issue, for instance, that the special conditions that the Judge imposed, not in dispute on this appeal, that Mr Janssen undergo psychological assessment and counselling, and that he attend any program or treatment, are highly sensible. They serve the purposes set out in s 93(3), and those in s 7(1). Their intent is to protect the community. Their intent is equally to rehabilitate Mr Janssen and assist him to reintegrate. Are then the conditions, contested on this appeal, any less justifiable?

[22]     The special condition imposed governing where Mr Janssen is to live, and the variant proposed, are unquestionably open as a matter of discretion. “Special conditions” is defined in s 93(2B) to include “conditions of a kind described in s

15(3) of the Parole Act 2002” and s 15(3)(a) of the Parole Act allows a condition as to place of residence to be imposed “which may include a condition that the offender reside at a particular place”.

[23]     Some exercise of discretion is still, however, called for. There is a degree of choice. The standard conditions the Judge also imposed, set out in s 14(1) of the Parole Act (and reflected in s 93(2)(b) of the Sentencing Act), are less prescriptive. Those in s 14(1)(a) – (f) are in point:

(a)the  offender  must  report  in  person  to  a  probation  officer  in  the probation area in which the offender resides as soon as practicable, and not later than 72 hours, after release:

(b)the offender must report to a probation officer as and when required to do so by a probation officer, and must notify the probation officer of his or her residential address and the nature and place of his or her employment when asked to do so:

(c)the offender must not move to a new residential address in another probation area without the prior written consent of the probation officer:

(d)if consent is given under paragraph (c), the offender must report in person to a probation officer in the new probation area in which the offender is to reside as soon as practicable, and not later than 72 hours, after the offender’s arrival in the new area:

(e)if an offender intends to change his or her residential address within a probation area, the offender must give the probation officer reasonable notice before moving from his or her residential address (unless notification is impossible in the circumstances) and must advise the probation officer of the new address:

(f)the offender must not reside at any address at which a probation officer has directed the offender not to reside:

[24]     The contrast between these conditions and the special condition imposed, or that proposed, reduces to this. The special condition fixes Mr Janssen to an address, whether  his  present  address  or  another,  approved  by  his  supervising  officer

beforehand. The standard conditions would allow Mr Janssen to shift from one address to another without, it seems, first notifying his supervisor. How soon he would have to do so afterwards is unprescribed. That appears to depend on how closely he is supervised. Whether he could stay where he had chosen to go, however, would depend ultimately on his supervisor.

[25]     In  principle,  Mr  Janssen  would  no  doubt  say,  the  standard  conditions constrain his rights to freedom of movement and residence less than the special condition. But only, we consider by a hair’s breadth. That in itself, however, we consider, has its own distinct significance. It goes to whether the special condition, which is marginally more prescriptive, and thus more onerous, is essential in the community interest. We are unconvinced that it is. We consider the standard conditions as to residence will suffice.

[26]     Mr Janssen is not peripatetic. He is an older man without great resources. He is a man who needs a place to work as well as live. He can be expected to stay at his family home unless that proves intolerable. If he has to find somewhere equally suitable, that will not be easy. The likelihood is that he will need his supervisor’s help. There is no evident risk that unless tightly constrained he will vanish into the ether. More significantly, we accept he has never been predatory in the wider community.

[27]     We remain concerned, however, that he has an abiding interest in sexual images, which have included peripherally those of pre-pubescent boys and  girls involved in sexual activity.  That  a  sentence  of  eight  months  imprisonment  was imposed for that offending on a man of Mr Janssen’s age speaks for itself. Though his indecencies on adolescent girls may have been on pupils of his, subject to his authority, and may now be historic, they are not to be discounted either.

[28]     Mr Janssen’s primary contact with children is with his grandchildren. His own children are able to control the extent to which that occurs, whether or not a condition is imposed. If they were the only children in question a condition might not be necessary. In the interests of any adolescents or young children who might

come within Mr Janssen’s range, however, and indeed in his own interest, we consider that the special condition imposed remains indispensable.

Result

[29]     The appeal is allowed.  The two special conditions imposed by the sentencing Judge governing where Mr Janssen is to live and precluding him approaching or entering places of risk are set aside by consent. As to his residence, the standard conditions  already  imposed  will  apply.  He  will  remain  subject  to  the  special condition prohibiting him from any unsupervised contact with children under 16 and the remaining special conditions imposed.

Solicitors:

Crown Law Office, Wellington