Citation: R v Jensen [2025] NSWDC 272
Court: District Court of New South Wales
Date: 3 April 2025
Judge: Bourke SC DCJ
Background
The offender was sentenced for three offences arising from events on 1 April 2024 at his mother's home in Warners Bay. At the time, he was subject to two Apprehended Domestic Violence Orders, one of which protected his mother and prohibited him from assaulting, threatening, stalking or intimidating her.
The victim, the offender's mother, arrived at her own home to assist her mother (the offender's grandmother) with daily care. The offender was present, appeared agitated and was believed to have not taken his prescribed medication for schizophrenia and substance use disorder. When the victim attempted to leave, the offender blocked her path, applied his forearm to her throat from behind with significant force, and choked her until she lost consciousness.
After she regained consciousness, the offender bound her head with wide electrical tape covering her mouth, nose and eyes, forcing her to keep her fingers in her mouth to breathe. He detained her for approximately one hour, demanded a bank transfer of $10,000, and ultimately accepted $450 before allowing her to leave. The victim suffered bruising, ongoing neck pain and soreness to her jaw, facial bones and cervical spine.
Legal Issues
- What aggregate sentence was appropriate for the three offences, taking into account their objective seriousness individually and collectively?
- How should the offender's diagnosed schizophrenia and delusional state at the time of the offences affect his moral culpability?
- What discount applied by reason of early guilty pleas?
- Whether special circumstances justified adjusting the standard ratio between the head sentence and non-parole period?
- How the sentence should be backdated having regard to time already spent in custody for related and unrelated matters?
Decision
Bourke SC DCJ assessed each offence separately before imposing an aggregate sentence. The choking offence (s 37(1)(b) Crimes Act 1900) was found to be approaching the mid-range of objective seriousness. It involved an unprovoked attack from behind, significant force that partially lifted the victim from the ground, loss of consciousness and lasting physical injury, all occurring in circumstances where an ADVO was in place.
The aggravated robbery (s 95(1) Crimes Act 1900) was also assessed as approaching the mid-range. The detention lasted approximately one hour, which the court acknowledged fell short of the most serious examples of its kind, but was accompanied by the horrifying use of duct tape over the victim's mouth, nose and eyes. The robbery yielded only $450, and the court noted this was a modest sum given the terror involved.
Across all three offences, the court identified the domestic violence context as a significant aggravating factor requiring particular weight on general deterrence. The offender's schizophrenia and the finding that he was operating under a delusional thought pattern at the time of the offences reduced his moral culpability, though this did not displace the seriousness of the conduct. A 25% discount was applied to each indicative sentence to reflect the utilitarian value of early guilty pleas.
The court found special circumstances warranting an adjustment to the ordinary head sentence to non-parole period ratio, given the offender's mental health needs and the importance of adequate supervision upon release to parole. The sentence was backdated by three months from the expiry of the non-parole period for an earlier set of offences, in recognition of the onerous nature of custody for a person with serious mental illness and the need to support rehabilitation.
Orders Made
- Convicted on all three charges.
- Aggregate head sentence of three years and two months, commencing 2 August 2024 and expiring 1 October 2027.
- Non-parole period of one year and eight months, expiring 1 April 2026.
- Indicative sentences: choking (sequence 3): two years two months; aggravated robbery (sequence 4): three years; breach of ADVO (sequence 1): twelve months.
- Direction that a copy of Dr Richard Furst's report be provided to Corrective Services and Justice Health.
Key Takeaways
- A diagnosis of schizophrenia and evidence of a delusional state at the time of offending can reduce an offender's moral culpability in sentencing, even where the offences are serious and involve significant violence in a domestic context.
- Where an offender's mental illness creates particular hardship in custody and raises rehabilitation concerns, those factors may support both a finding of special circumstances and a partial backdating of sentence.
- Under the domestic violence sentencing framework, offences committed in breach of an existing ADVO carry additional weight and attract a particular emphasis on general deterrence.
- The District Court applied a 25% utilitarian discount for early guilty pleas across all three charges, consistent with established New South Wales sentencing principles.
- Backdating a sentence to the date of arrest is not automatic; the court here declined a full backdate on the basis that it would have effectively nullified punishment for separate offences already dealt with in the Local Court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(1)(b), 95(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166
Cases:
- Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- R v Harris [2011] NSWCCA 105
- R v Henry and Ors (1999) 46 NSWLR 346