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[2007] VSC 199
Supreme Court of Victoria
2007-06-13
OSBORN J
Original judgment source is linked above.
MURDER - premeditated and cold blooded killing - personality aspects consistent with Asperger's syndrome - some reduction in moral culpability - tinnitus complaint with depression and obsessive personality affecting hardship during imprisonment - sentence of 20 years imprisonment with 16 years non parole period.
HIS HONOUR:
1 Douglas Victor Jensen, you have been found guilty by a jury of 12 of the murder of your father Marius Kristian Jensen at Tarrington on 2 February 2000.
2 Shortly after 8 p.m. on that day you attended the Hamilton Police Station in a state of distress to advise police that your father had been shot dead at your home at Tarrington. Upon police attending the scene it became apparent that your father had been shot to the head at point blank range with a heavily modified shotgun firing a .38 calibre special cartridge.
3 The Crown case against you was a circumstantial one involving a combination of matters, including character evidence refuting the suggestion of suicide, admissions by you, including admissions that you and no one else were in the immediate vicinity of your father at the time of his death, alleged lies as to your whereabouts at the time of the shooting, extensive forensic evidence as to the nature of the murder weapon, blood spatter evidence, blood stain markings, evidence suggesting the burning of a pair of jeans in the kitchen where your father's body was found, and relationship evidence.
4 It is not my task to analyse and review that evidence, save to say that the only view of the evidence consistent with the jury's verdict is that you shot your 75-year old father as he sat at the kitchen table and that the killing was a cold-blooded and premeditated one; a view I should add that was clearly open to the jury on the evidence despite its circumstantial nature.
5 There are a number of aggravating factors and no readily apparent mitigating aspects in the circumstances of your crime. You shot an unarmed and defenceless 75-year old man in his home. You were a person from whom he was entitled to expect natural love and affection. There is no evidence of provocation. The manner in which he was shot strongly suggests that you were able to approach him as someone he trusted. The weapon used had been deliberately modified for the purpose for which it was used and was unregistered. The shot was fired to the right side of the temple and could have had only one consequence.
6 You have expressed no remorse for your actions, nor given any explanation for them. The brutality of your father's killing has in turn caused severe trauma and emotional pain to those to whom he was dear. Eloquent victim impact statements have been read to the Court describing the impact of your father's killing upon his brother Niel and his nieces Anne and Patricia.
7 Your father was an apiarist and a manufacturer of bee-keeping equipment with a regular circle of friends and acquaintances, some of very many years long standing, and it was apparent at your trial that a number of these were in turn affected by his death.
8 I am satisfied from the extensive evidence as to his character at your trial, contrary to suggestions made on your behalf, that although your father liked the solitary life in the bush, he was generally good humoured and a good friend both to members of his extended family and to many who shared his interests in bees and timber.
9 I turn then to the evidence given with respect to your own characteristics. You are now 42 years of age and were born and raised in the Hamilton area. You grew up at the small property at Tarrington, which it appears your mother had inherited. Your mother was of German background and your father of Danish background. You were raised within the Lutheran community at Tarrington, attending the Lutheran Primary School and the local church.
10 It seems that the household was relatively poor, but I am not persuaded that you were materially disadvantaged in any way which explains your subsequent behaviour. It seems that you related better to your mother than to your father, although this may in part simply have been a function of the fact that your father spent substantial periods away from home in his occupation as a bee keeper. You also have a brother Colin, to whom it appears you have always been quite close.
11 It was suggested in evidence given by your aunt on the plea and in turn asserted by your counsel, that during your childhood your father was violent towards your mother and indeed towards yourself.
12 In my view, these matters were not properly proven before me and I am not persuaded of their truth. Moreover and in any event, insofar as they might otherwise be said to provide some underlying explanation for your behaviour, then as the prosecutor submitted your aunt's evidence was also that you got on well with your father in your adult years.
13 After primary school, you attended Hamilton Technical School and progressed to year 12. It appears that during your schooling you showed an aptitude for accumulating knowledge of facts and for studies such as arithmetic and history, which were memory based. You liked English because you liked words. In your secondary schooling you developed a serious interest in the design of machinery.
14 You left school hoping to pursue tertiary studies, but did not get past the commencement of an orientation course at Ballarat, which you found unattractive, thus you did not go on to obtain the technical qualifications which might have enabled you to pursue employment in the field of mechanical engineering or some similar area.
15 Whilst at school it seems you formed only a few friendships and Dr Vine states that you have never been attracted to forming emotional relationships. After leaving school you worked in a series of relatively unskilled jobs such as wool pressing and wood cutting, but you also did some office work in your brother's business and assisted your father in the manufacture of bee keeping equipment.
16 In your 20's you enrolled in the Army Reserve and discovered a number of companions who shared an enthusiasm for firearms, weaponry and associated matters and made at least one close friend, but you did not use your contacts in the Reserve to develop a broader social life to any real extent outside the Reserve.
17 Unfortunately, in May 1987 when using an anti-tank weapon, you suffered injury to your right ear, resulting in ongoing and distressing tinnitus. In July 1988, you were also involved in an accident at your parents property resulting in a self-inflicted bullet wound to your upper left leg. Whatever the true circumstances in which this latter incident occurred, it appears to reflect part of your ongoing fascination with firearms.
18 In August 1988, you resigned from the Army Reserve and although you continued to work in a series of jobs, it appears that you suffered increasingly from tinnitus and vertigo.
19 In 1994 your mother died to the genuine distress of both you and your father.
20 In August 1995, your father called the police to the Tarrington property following an incident of alleged conflict between your brother and yourself. When police attended, you and your brother were evidently in a shed together and I accept that your father may have misjudged the situation. Nevertheless, you were found to be in possession of an unregistered pistol fitted with a silencer which you had tucked into the back of your pants. You were charged with possession of an unregistered firearm and your brother was also charged with firearm offences. I accept, as the psychiatric reports tendered on your behalf suggest, that the fact of these charges troubled you greatly.
21 In June 1996, you qualified for a disability support pension. In 1999 your brother was convicted of charges arising out of growing and trafficking a substantial quantity of marijuana. It appears that you were also placed on a bond for possession of a small quantity of that drug. Once again, I accept that these proceedings were troubling to you.
22 Thereafter your father instituted intervention order proceedings against your brother and obtained an order with respect to him on the basis of threats and expressions of resentment made towards your father and your uncle following the matters I have mentioned involving the police. Your brother Colin moved away from the Tarrington property, save for some access for business purposes, and he had not returned to the house to live at the time of the killing. Your uncle's evidence, which I accept, is that during the process of intervention order proceedings you sided with your brother.
23 At the date of your father's death you were thus unemployed and living alone with him at Tarrington. You had, I am satisfied, failed to obtain the formal technical qualifications which some of your aptitudes might have led you to expect you might achieve. You were unemployed and you were locked in conflict with the Commonwealth Government over its refusal to compensate you appropriately for the injury to your ear. You had little social life and you had an ongoing fascination with firearms, reading widely with respect to them and with respect to matters of criminal and other history, including the history of armed conflict.
24 The series of psychiatric reports also make it clear that you were suffering from ongoing depression for which medication has been prescribed. In order to assist the Court your solicitors obtained a report from Dr Ruth Vine, a well-respected psychiatrist. I accept her opinion with one qualification, and I shall quote from it. Following a mental state examination, Dr Vine concluded:
Mr Jensen is clearly an articulate man. Both to observation and direct questioning there was no suggestion that he was suffering from a psychotic illness. While as noted above it was difficult to engage Mr Jensen in discussion of his emotional response to the current situation rather than the details of the Court and police inquiry, Mr Jensen's speech was largely appropriate to the interview, I did not elicit any persecutory delusional thinking.
Mr Jensen is a 42-year old single man whose father died in 2000 and who has recently been found guilty on a charge of the murder of his father. He has suffered intractable tinnitus since an incident with the Army Reserve in 1987. This has been resistant to intervention and has been compounded by the development of chronic moderate depression. However, more recently in the context of the charges against him and the process in relation to that charge he has also become preoccupied with the legal process in which he is involved and he remains preoccupied regarding this and regarding the possibility of an appeal. Although Mr Jensen presents as an obsessional and isolative man with some paranoid tendencies, he does not present as suffering from a psychotic disorder, nor as having persecutory ideation of delusional extent. His social isolation appears to be of long standing and in some ways to have been common within his family of origin.
You have raised the question as to whether Mr Jensen suffers from mild autism. Autistic disorder is one of the Pervasive Developmental Disorders in the Diagnostic and Statistical Manual of Mental Disorders. There is nothing to suggest that Mr Jensen has any degree of intellectual disability which is common in autistic disorder. In autism, in addition to a qualitative impairment in social interaction, there is most often impairment in communication and restricted repetitive and stereotype patterns of behaviour, interests or activities. It could certainly be questioned whether Mr Jensen shows evidence of Asperger's Disorder, which is also described as a pervasive developmental disorder. The essential features of this are severe and sustained impairment in social interaction and the development of restricted repetitive patterns of behaviour, interests or activities, in the absence of any clinically significant delay in language or delay in cognitive development and adaptive behaviour. People who suffer Asperger's often have problems with empathy and modulation of social interaction. Although Mr Jensen shares a number of these features, it should be noted that he has been able to sustain a relationship with his friend, a Mr Lyon in Warrnambool and with members of his broader family. He shows an interest in retaining contact with these people through regular visits and letter writing. Thus while in my opinion Mr Jensen does show aspects consistent with Asperger's and could be described as having a personality with features which include schizoid, paranoid and obsessional traits, it is not clear on the materials available to me that these have caused Mr Jensen or those around him any particular distress. Indeed Mr Jensen appears to have managed his life within the limitations of his personality to an admirable degree. Such personality traits do mean that it is difficult for him to engage with others in exploring his feelings and responses to situations and probably made the efforts of previous treating psychiatrist to provide a psychotherapeutic engagement more difficult. Together with the impact of tinnitus, Mr Jensen is apparently able to cope in the real world through narrowing the expectations of others and narrowing his social circle.
26 I accept this opinion with the obvious qualification that the statement that you appear to have managed your life within the limitations of your personality to an admirable degree must be understood to exclude the offence, which brings you before this Court.
27 Putting the above matters together, I am satisfied of the following, noting that I must be satisfied of matters adverse to you beyond reasonable doubt, but may have regard to matters in your favour, established on the balance of probabilities.
28 At the time of your offence, you were an isolated man, who had little extended social relationship with others.
29 I cannot be satisfied in any detailed way of the structure or nature of the relationship between you and your father, save to observe that you were clearly living together over many years in circumstances where each of you must necessarily have spent extended periods of time with each other.
30 I also accept that it is likely the relationship between you and your father became more difficult after the death of your mother in 1994.
31 I am satisfied that you do not deal with your feelings and emotions in a normal manner, but rather tend to focus upon matters of practical and incidental detail.
32 I am satisfied that at the time of the killing you were subject to personal stress, due to the destabilisation of your relationship with your father, following confrontations involving your brother and as I have said, as a result of the ongoing dispute with the Commonwealth Government concerning compensation for the injury to your ear and consequent depression, which was not resolved until later in 2000.
33 I am satisfied as Dr Vine says, you were also suffering from chronic moderate depression. I am also satisfied that you were fascinated with machinery, in particular weaponry and it seems to me you have always sought answers in the detail of life, rather than in a bigger picture.
34 I am satisfied that the probability is that your crime was somehow generated by the relationship with your father and that this occurred in the context I have described of joblessness, distress from tinnitus, depression and ongoing conflict between your father and his sons.
35 I accept that this lessens the significance of specific deterrence in your case, although the identification by Dr Vine of schizoid, paranoid and obsessional traits in your personality, is not reassuring. I am also satisfied that the chronic moderate depression and personality characteristics described by Dr Vine are such as to have potentially inhibited to some degree a realisation of the true consequences of your crime and the scale of its iniquity.
36 I am not satisfied that the characteristics described by Dr Vine are such as to render your case one which is other than an appropriate vehicle for general deterrence. It seems to me that considerations of general deterrence arise in your case, not only with respect to the crime of murder itself, but also with respect to the use of an unregistered modified firearm for criminal purposes.
37 I am however satisfied, that both because of your tinnitus and your obsession with it and your associated depression, it is likely you will suffer more stress in a prison environment than the ordinary person and you have also been subjected as a preliminary to an extended trial process with associated stress.
38 Mr Jensen, it is incumbent upon me to affirm the sanctity of human life and the fundamental value which the law of this community ascribes to it. The Court must denounce the brutal and deliberate killing of your father. I must also seek to impose a sentence which is just in all the circumstances of the case, and which reinforces in the public mind the seriousness with which the law seeks to deter deliberate killings.
39 I am prepared to moderate somewhat the penalty I would otherwise impose, firstly to reflect the depressive condition and personality characteristics which Dr Vine has diagnosed, which in my view do bear to some extent upon your moral culpability[1]; and secondly, to acknowledge the probability that the combination of tinnitus, chronic moderate depression and your personality characteristics will render long-term imprisonment somewhat more stressful for you than for the ordinary person, particularly having regard to the extended trial process you have undergone.
40 Mr Jensen, having regard to the above matters and to the purposes set out in s. 5 of the Sentencing Act 1999, I sentence you to a term of 20 years imprisonment for the murder of your father, and I fix a non-parole period of 16 years. I declare pursuant to s.18(4) of the Sentencing Act 1991 that you have already served a period of 1,132 days in custody. Would you remove the prisoner please.
[1] R v Verdins [2007] VSCA 102
R
Jensen [2007] VSC 199