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District Court 16 January 2007

R v Lindsay Ronald Jensen

[2007] NSWDC 15

Sexual offences
SENTENCE INDECENT ASSAULT SEXUAL INTERCOURSE WITH CHILD UNDER 10

Citation: R v Lindsay Ronald Jensen [2007] NSWDC 15
Court: District Court of New South Wales
Date: 16 January 2007
Judge(s): Murrell SC DCJ

Background

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. All five offences occurred between February and December 2002, when the victim was nine years old. The offender had also been convicted in an earlier trial of three separate sexual offences against the victim's older sister.

The offender and the victim lived in country New South Wales. Both families were members of the Exclusive Brethren religious sect and shared a close social relationship. During 2002, while the victim's mother was recovering from a serious injury, the victim stayed at the offender's home for extended periods, placing the offender in a position of immediate responsibility for her welfare.

The five offences took place during those stays and ranged in nature from touching over clothing to digital penetration. The victim regarded the offender as a trusted figure, and the court noted that the offences were not isolated incidents, with additional uncharged conduct also described in evidence.

  • What sentences were appropriate for four counts of indecent assault on a child under ten and one count of sexual intercourse with a child under ten?
  • What weight should be given to the aggravating factor of the offender holding a position of trust and authority?
  • What mitigating weight, if any, should be given to the offender's lack of prior convictions and otherwise good character?
  • Whether the offender's likely harsher custodial conditions (protection classification) should affect the length of the sentences imposed?
  • Whether special circumstances existed to justify varying the standard relationship between the non-parole period and the balance of term?

Decision

The court assessed the objective seriousness of the offences at below to moderate levels. The Crown conceded the sexual intercourse count fell below the mid-range of seriousness, as it was brief, did not involve penile penetration, and left no evidence of physical injury. Count 3, involving direct skin contact, was considered of greater objective seriousness than the remaining indecent assault counts, which involved contact through clothing.

The primary aggravating factor was the offender's position of trust and responsibility toward the victim, which the court treated as significantly elevating the gravity of the conduct. The offender's lack of prior convictions and good character were acknowledged as mitigating factors, but their weight was reduced by the multiplicity of offences and the concurrent offending against the victim's sister. The court also noted that first-time offender status is a common feature of cases of this type.

The offender's continued denial of responsibility, his rejection of any sex offender programme, and the resulting inability to assess rehabilitation prospects all weighed against a finding of reduced likelihood of reoffending. The court treated general deterrence as a matter of significant importance, noting the social responsibility to protect children from those in positions of trust.

The court found that the offender's likely classification on strict protection, which would restrict his access to educational and other prison resources, made his custodial conditions more onerous than those of the general prison population. That consideration was factored into the length of the sentences. Special circumstances were found to exist, warranting an extended supervision period following release, given that this was the offender's first custodial sentence and his prospects of reoffending remained uncertain.

Orders Made

  • Count 1 (indecent assault): 9-month fixed term, 18 December 2006 to 17 September 2007
  • Count 2 (sexual intercourse): non-parole period of 2 years and 6 months (18 June 2007 to 17 December 2009), balance of term 2 years (expiring 17 December 2011)
  • Count 3 (indecent assault): 2-year fixed term, 18 December 2006 to 17 December 2008
  • Count 4 (indecent assault): 18-month fixed term, 18 December 2006 to 17 June 2008
  • Count 5 (indecent assault): 21-month fixed term, 18 December 2006 to 17 September 2008
  • Effective total sentence: 5 years' imprisonment, with eligibility for parole on 17 December 2009 (after serving 3 years)

Key Takeaways

  • A position of trust and immediate responsibility for a child's welfare constitutes a significant aggravating factor in sentencing for child sexual offences under s 21A of the Crimes (Sentencing Procedure) Act.
  • Lack of prior convictions carries reduced mitigating weight where the offending involves multiple incidents over a sustained period and concurrent offending against a second victim.
  • The District Court confirmed that harsher custodial conditions arising from a protection classification, which restrict access to prison resources, can be taken into account in fixing the length of individual sentences.
  • Special circumstances justifying a longer than usual supervision period after release may be established where the offender is serving a first custodial sentence and their prospects of rehabilitation and reoffending cannot be assessed due to denial and refusal to engage with treatment.
  • General deterrence carries particular weight in sentencing for child sexual offences committed by persons in positions of trust, reflecting a broader social interest in protecting children from exploitation by those responsible for their care.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors on sentencing)

Cases:
- No cases were cited in the provided judgment text.