Victorian Legal Services Board v Jensen [2022] VSC 603

2 The plaintiff (VLSB) applied under Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), for a finding of contempt against Mr Jensen for breaching the injunction. The conduct in breach was evidenced by a series of email communications between 7 August 2020 and 29 October 2020 between Mr Jensen and the parents of a person accused of rape. The identities of the parents, their accused son and the complainant are all protected by pseudonym orders. I was satisfied beyond reasonable doubt that Mr Jensen provided legal advice in relation to proceedings or potential proceedings and drew documents on behalf of, or as agents of litigants, including affidavits.

3 On 3 August 2022, this court declared that Mr Jensen was guilty of contempt by breach of that injunction.[1]

4 Mr Jensen gave the parents of the accused advice pertaining to their son's defence of serious criminal charges that involved conduct that breached an intervention order (IVO) made against him for the benefit of the complainant. The parents trusted Mr Jensen and acted on his advice to their detriment. The son was charged with the breach and faced a magistrate as I will later explain.

5 I find that Mr Jensen's contempt was a serious criminal contempt with severe consequences. It warrants a custodial sentence. I sentence Mr Jensen to imprisonment for a term of three months. However, for the reasons that follow, I am satisfied that it is appropriate to wholly suspend the sentence for 12 months.

6 The VLSB relied on the evidence adduced in the contempt hearing and on three further affidavits:

(a) An affidavit of Danielle Jones, deposing that in the IVO breach proceedings the accused was, without conviction, released upon an undertaking to be of good behaviour.

(b) A second affidavit from Ms Jones disclosing the results of a search in respect of Mr Jensen conducted on the Health Complaints Commissioner (HCC) website. In 2018, three prohibition orders against Mr Jensen and three public warning notices regarding his conduct were published. The orders[2] prohibited Mr Jensen from providing any general health service, claiming he was qualified or able to cure cancer or other terminal illnesses or supplying, promoting or recommending treatments including black salve. The public warnings stated that Mr Jensen had contravened the code of conduct in the Health Complaints Act 2016 (Vic) when he treated a person suffering with cancer with alternative remedies.[3]

(c) An affidavit from the mother, addressing two main issues:

(i) First, the mother addressed Mr Jensen's submission to the penalty hearing that he was introduced to the parents by Derek Balogh and that the parents were Balogh's clients. The mother disputed this assertion. She never spoke to Balogh on the phone, though he was present during one or two Zoom meetings that she and her husband had with Mr Jensen, and there was some email correspondence that Balogh was copied into. She understood Mr Jensen to be the person assisting them with the legal documents and the legal advice.

(ii) Second, the mother described the impact of Mr Jensen's contempt on her and her family. She said when she learned that her son had been charged with breaching the IVO she felt physically sick. In shock, she blamed herself from making an awful situation worse for her son. She and her husband were scared that her son might commit suicide. She felt (and continues to feel) extremely guilty that her actions could cause her son to go to prison. The mother said that after her dealings with Mr Jensen, she is less trusting and more cynical and has trouble sleeping. She is angry at herself for being duped by Mr Jensen to the detriment of her son.

7 Mr Jensen had assistance from a Mackenzie friend and filed a written submission and further affidavits. Mr Jensen's affidavit claimed that since the contempt hearing, and with the assistance of a computer technician, he was 'able to restore [his] hard drive and retrieve emails pertaining to the issue'. He did not explain why he did not do so prior to the contempt hearing. His affidavit claimed he did not prepare 'the affidavit referred to in the plaintiff's evidence, as that document was prepared by Derek Balogh'.

8 Mr Jensen was seeking to rely on this affidavit to reopen the liability hearing to present a further alternative defence. I declined to permit him to do so.

9 This further evidence could have been placed before the court in the contempt hearing. Mr Jensen hinted at this possibility in an earlier hearing prior to the final liability hearing. He offered no explanation for why he did not present this evidence, which was within his personal knowledge, at the appropriate time. He did not give evidence but referred to a Derek Balogh in his closing submissions in the liability hearing.

10 Mr Jensen failed to explain Balogh's involvement during the liability hearing in the manner he has purported to do now. His defence, which was inconsistent with this claim that he put his name on work done by and advice given by Balogh, was that he never told the parents he was a lawyer, the emails indicated they were confidential and the mother was breaching that confidentiality by providing the emails to the VLSB, he was just trying to help the parents, he only made suggestions to them, and that he was exercising his inalienable right to free speech in doing so.

11 If Mr Jensen's untested allegations are taken at their highest, he is contending that Balogh had some involvement in the drafting of one or more of the affidavits that were sent to or settled on behalf of the parents. That the affidavits were transmitted by Mr Jensen or with Mr Jensen's support, the contents endorsed by him, and/or the remainder of the advice was sent by him, and that Mr Jensen accepted a donation for his efforts, remain undisputed. As final judgment for contempt has been perfected, these circumstances can only be relevant in mitigation of penalty and it is only in that way that I take account of Mr Jensen's recent description of Balogh's participation. I will return to this issue.

12 Mr Jensen tendered a number of letters pertaining to his character and his health. The character references provided as follows:

(a) Lolita Gunning said that Mr Jensen was 'one of the most loving, caring and generous people I have ever known', and that he gave free access to his office equipment to a variety of people in the community. She said that she observed Mr Balogh in Mr Jensen's office using his computers and that he would dictate to Mr Jensen because Mr Jensen had trouble structuring sentences. She said she felt that Mr Balogh 'was using and abusing [Mr Jensen's] generosity'.

(b) Juliet Gunning, Mr Jensen's friend of five years, said she has known him to be honest, caring, humble and generous and that he gave selflessly to anyone in need. He was well regarded in the community but has been exploited because of his disabilities and lasting brain damage. 'He did not have the cognitive ability to always discern what was within the law and always came from a genuine place of unconditional love'. Ms Gunning said that Mr Balogh sought to 'blatantly exploit' Mr Jensen and that she had seen him in Mr Jensen's office on five different occasions using Mr Jensen's computer and going through his files.

(c) Lynda Summers' letter to the Court said that:

(i) She had been working with Mr Jensen in his business, in charge of marketing, typing letters and all administrative functions. In this business, Mr Jensen reviews companies' workcover premiums and wage payments and recovers substantial refunds for hospitals, not-for-profits and other organisations including public entities. She said he has 'saved many companies from hardship & his service has potentially saved thousands of workers from redundancy'.

(ii) Ms Summers believed that Mr Jensen had a massive brain injury when he was younger and when she met him he 'had limited memory of his childhood & he could hardly read or write & did not understand punctuation at all ... Approximately 17 years ago I started to teach [Mr Jensen] grammar & sentence structure. He struggled & could not structure sentences or understand punctuation. As a result, I have to vet everything he does to this present day. He has limited capabilities when it comes to grammar'.

(iii) Ms Summers maintained that Mr Jensen's 'situation' with the VLSB and the HCC were 'orchestrated' by certain individuals including Mr Balogh. Mr Balogh was in Mr Jensen's office using his equipment and computers almost every day. 'Because of [Mr Jensen's] gentle nature he would not say anything & he was used & abused by them all. Derek Balogh in particular controlled, manipulated & abused [Mr Jensen's] kindness in the past'.

(iv) Mr Jensen's brain injury made him a very humble, loving and caring person and an easy target to be manipulated. He would compromise his own wellbeing to help anyone including animals at any time of the day or night. The brain injury has caused him to be a bit slow understanding & comprehending what is going on around him. '[Mr Jensen] is the most generous, loving, considerate person I have ever known'.

(v) Ms Summers said she has a debilitating illness and Mr Jensen is her only and primary carer. He has paid her rent and all of her bills and has taken out loans and facilities to support her. She says she would not survive if he was not available to assist her.

(d) Michelle O'Neill's letter said that Mr Jensen has been her friend for the past ten years. He is kind, caring, honest and dependable.

(e) Nigel Ewart's letter said he has known Mr Jensen for 11 years and that he is a caring, honest, supportive and loving person. He said Mr Jensen helped him in a difficult time in his life, paid his bills and gave him unconditional support.

(f) Dr Sam Assad, in his capacity as medical practitioner for Lynda Summers, wrote a letter to the Court explaining that Mr Jensen is the primary volunteer carer for Ms Summers, and has been for five years, who has a serious debilitating disease and is not capable of looking after herself. Dr Assad opined that Ms Summers 'could deteriorate very quickly without the special care that [Mr Jensen] provides for her'.

13 Dr Sam Assad, provided another letter to the court, this time in his capacity as Mr Jensen's doctor for the last 25 years. He explained he had 'not actually reviewed the records from his injury in 1971' but that he has 'seen [Mr Jensen] struggle over the years from the effects of viral meningitis, viral encephalitis and myelitis, along with other bacterial infections in the brain and spine'. He said that he believes Mr Jensen to have an extreme and aggressive form of these ailments, which can cause: headaches, changes in behaviour or confusion, in extreme cases brain damage, stroke or even death. He explained Mr Jensen has little feeling from his waist down, suffers frequent massive migraines and pain in his spine. In January 2022 he was on crutches. Dr Assad said:

People who suffer massive brain injuries usually have personality change where they often become excessively humble and seek approval of others at all costs.

He would help anyone with total disregard for his own safety.

I understand that he has lost a lot of memory and schooling. He survived by using his limited abilities. I have always found him to be very loving, caring, humble and he has always made light of his injuries and disabilities.

His humility and loving compassionate behaviour towards people and animals are excessive, which is a [sic] part an acceptance issue and lack of education.

During the 25 years I have known him, he has constantly struggled with his disabilities and strived to do and be the best he could.

I have never known him to intentionally damage or hurt anyone or break the law.

With this case, my observation is that Dennis Jensen would be overwhelmed by his sympathy, empathy and compassion for a distraught person. I believe it could cloud his judgment at times. I believe that he would never wish to intentionally harm anyone and would be devastated at the thought that he had done wrong.

He is the carer of his friend Lynda Summers, who is also my patient. Lynda Summers is in the Box Hill hospital at the moment suffering from a bone fracture and a hip injury.

Dennis Jensen also brought Lynda's mother, Joan Summers, to the clinic from Croydon to Bulleen almost every week for the last 2 years of her life. He cared for her as well, until she passed.

14 As the VLSB correctly submitted, this was not expert evidence. It was substantially a character reference. Dr Assad's statements about the personality changes that may come about from Mr Jensen's afflictions were too broad and unsubstantiated to assist the court. However, the nature and extent of Mr Jensen's health issues, some of which were observable in court, are sufficiently put in issue such that I ought to consider and take account of them.

15 During the penalty hearing, Mr Jensen called one witness, his son, Cal Laurie Jensen, who is a commercial builder. He said:

[S]ome of the characters that [my dad] hung around have been very sort of questionable and, um, I've been fairly firm with - since he's been living with me there and everything too, that you know, I review everyone that comes up pretty much now too and say a big yes or no whether they come up my drive way, just because I can't deal with, you know, people like Mr Balogh and - and a few others, that they've been questionable, I don't want them around my family and ... I just feel like, ah, he's too easily influenced by wanting to do the right thing, his heart is always in the right way, you know, he tries to have his heart in the right place but just does the wrong thing and influenced by, um, people that sort of lead him astray I suppose and the, he has been ... very remorseful about it.

...

I have actually been quite impressed with the people he distanced himself with and how quickly he moved to - to dismiss them and - and not associate with them as well. So, he does keep a fairly simply life, he doesn't have a lot. Um I do take care of him but he is ... the last 10 months or so, he has been immensely... struggling with life in general and his health has been quite concerning. I know I've had a few sleepless nights stressing about him, whether he's going to make it through the night or not. Um, but the development of himself ... he has taken away a lot from this...

...

[T]he fact that everything that he's had to go through with the stress of all this, he's sort of, doesn't have or own really anything anymore ... he only has a small network of close friends ... coming out of all this he's um, I feel like it's sort of changed him, probably for the better.

...

[I]ncreasingly over the last sort of, few months... he was well stressed and thinking about life and his actions and what's taken place and you could definitely see remorse in what - what had taken place.

...

[The possible consequences he may suffer as a result of the contempt] has been keeping him up at night and the - the fact that he's also mentioned that he feels terrible about the [the parents and the son]. I think he's also shown a little bit of - a fair bit of remorse or concern for - for that family as well, just in private when we've been talking too.

16 Order 75 of the Rules applies where a defendant is guilty of contempt of court. It provides that, where the respondent is a natural person, the court may punish for contempt by committal to prison or fine or both.[4] The court may make an order for punishment on terms, including a suspension of punishment.[5]

17 There has been a blurring of 'any bright line of distinction' between civil and criminal contempt constituted by the breach of court orders.[6] Traditionally, the law has observed a difference between the two in that a criminal contempt involves 'deliberate defiance'; or is 'contumacious'. The basis of the distinction lay in civil contempt proceedings being remedial or coercive in the interest of a private individual, whereas criminal contempt is in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.[7]

18 However, the High Court has held that the bases for the distinction between civil and criminal contempt are 'in significant respects, illusory'[8] because all orders are made in the interests of justice and non-compliance necessarily interferes with its administration. Additionally, a distinction between proceedings for punitive and remedial or for coercive purposes, where imprisonment and fines are used as punishment in both, is difficult to draw.[9]

19 Nevertheless, courts continue to observe the distinction. Criminal contempt requires the conduct to be contumacious, or for the proceeding to serve a punitive purpose of punishing a past breach rather than a remedial purpose of coercing obedience with an order.[10] A wilful breach may be considered contumacious where the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused; the breach involves perverse or obstinate resistance to authority; or there is a direct intention to disobey the order.[11] The breach must be both wilful and calculated, in the sense of 'likely', to interfere with the course of justice.[12] It is a deliberate determination to defy the court.[13] A finding of guilt for criminal contempt has been regarded as the equivalent of a conviction,[14] whereas if a contemnor is adjudged guilty of civil contempt, no conviction should be recorded. The language used is that of a declaration of the contemnor's guilt, rather than conviction of an offence.[15]

20 Where the breach of an order is casual, accidental or intentional, the court may exercise its discretion to impose no penalty. Where a contempt is considered criminal, a court may record a formal conviction and is more likely to impose a severe penalty, including imprisonment.[16] A sentence of imprisonment is available in cases of civil contempt, but it is rarely considered appropriate.[17] The central consideration in either case is the importance of upholding the effective administration of justice.[18]

21 The principal aims of sentencing in contempt include specific deterrence, general deterrence and denunciation. The relevant principles include the nature and circumstances of the contempt; the actual consequences of the contempt; the effect of the contempt on the administration of justice; the contemnor's personal circumstances, antecedents and financial means; the contemnor's culpability; the contemnor's reasons for his conduct; the need to deter the contemnor from repeating the contempt; and whether the contemnor has exhibited general contrition and made a full and ample apology.[19]

22 Each case is to be determined on its own facts. The character of the contemnor, his financial means and the absence or presence of a prior conviction for contempt may all be relevant.[20]

23 Imprisonment is regarded as a penalty of last resort. Any period of deprivation of liberty is a drastic imposition on anyone and the value the law places on liberty is very high. Before imposing a term of imprisonment, suspended or otherwise, it is necessary for the court to determine first whether any alternative to imprisonment would be appropriate.[21]

24 Particular principles apply in considering an appropriate sentence in circumstances where the offender claims to have impaired mental functioning, either at the time of the offence or the time of sentencing, whether or not the condition in question would properly be described as a (serious) mental illness. These Verdins[22] principles are relevant to sentencing in at least six ways:

(a) The condition may reduce moral culpability for the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective.

(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(c) Whether general or specific deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(d) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(e) Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

How should the contempt be regarded - civil or criminal?

25 The VLSB submitted that Mr Jensen's contempt was contumacious in that he knew his conduct was prohibited and he could have no reasonable belief that it could be excused. He was found to have drafted numerous affidavits on behalf of the parents and the accused after recommending that this should be done.[23] What was more significant was his advice as to how the affidavits should be used.

26 His conduct also involved perverse obstinate resistance to the court's authority. He knew the conduct was prohibited by the injunction and proceeded nonetheless. He knew that service of the affidavits upon the complainant would cause the accused to breach the IVO. The parents expressly asked him whether such service would constitute a breach and he informed them that if they had 'any issues with the Police or the court' they could be handled very easily because they could 'nullify and void both entities'.[24] He provided them with that advice after having earlier said, '[w]e can deal with the orders by destroying the Mag Court later. Don't worry about the IVO's'.[25]

27 The VLSB submitted, and I agree, that Mr Jensen's contempt should be regarded as most serious. The injunction was made against him with a view to protecting the public from unqualified legal practice. He defied that injunction and exposed the accused to criminal consequences. The parties involved were desperate and vulnerable, and he created the impression that his advice would have certain legal consequences beneficial to the accused.[26] He caused the parents to trust him and to trust that he could help their son out of a situation causing the son great distress, when Mr Jensen knew he could not and that he was prevented from doing so by a court order.

28 The parents' service of the affidavits on the complainant, as he advised, resulted in the accused breaching a court order for which he was charged. He had to endure the conduct of a criminal proceeding against him, while the parents watched, knowing their own actions contributed to the charge. In addition, the affidavits were filed in the main criminal proceeding without the parents and the accused receiving the benefit of qualified legal advice (albeit any consequences flowing from the facts were unknown to the VLSB).

29 The effect of the contempt on the administration of justice was exacerbated here because the order that Mr Jensen violated was made with the express purpose of protecting the public and the administration of justice. Qualified lawyers are bound by important principles of ethics, duties to the court and their client, and are required to perform their legal services with reasonable care and without negligence. The proper administration of justice depended on observance of these obligations.

30 Mr Jensen submitted that his breach of the order was casual, accidental or unintentional and the court could exercise its discretion to impose no penalty. There was no need for the court to impose any further penalty, pecuniary or imprisonment, as he was capable of complying with the injunction and the circumstances surrounding his isolated transgression no longer exist. The court should find that a conviction alone is a sufficient penalty.

31 He submitted that his culpability should be limited because he was not the author of the relevant affidavits. He submitted that he dutifully adhered to the orders of Garde J since they were made in 2018 save for this 'sole incident' during the period August 2020 to October 2020. He was not motivated by a 'perverse obstinate resistance to the authority of the court'. He had, in an attempt to comply with the order, advised the parents of his limitations in becoming involved in the matter and Balogh was similarly aware. Mr Jensen did not make calculated attempts to circumvent the orders and attempted to set boundaries regarding his involvement, operating under the misguided belief that if his 'only involvement was to act as liaison between the parents and Derek Balogh that this would not breach the orders'. His breach was not wilful and calculated and he did not act contumaciously. No criminal intent existed.

32 As the VLSB submitted, his culpability was at the high end, given that his conduct was deliberate and he made misguided efforts to circumvent the operation of the injunction. He:

(a) provided a 'disclaimer' to the parents that he was not a lawyer, but then proceeded to make definitive assertions about the law, the functioning of the criminal justice system and the legal consequences of the parents' and the accused's actions and said he was helping other people with legal issues and gave the parents advice of a legal nature. He relied upon this fact when defending the contempt application.

(b) did not give advice to the accused directly and in defending the contempt application, he relied upon this fact.

(c) accepted a 'donation' in lieu of payment in an effort to defeat the injunction through what he perceived to be a technical loophole.[27]

33 Mr Jensen, by submission, responded by seeking to explain that other individuals were involved in his conduct in 2018 and since. He submitted that the circumstances that led to Garde J's orders arose from his affiliation with these individuals, including Balogh who exerted pressure and influence over him such that he relied on their advice. After the Garde J orders he ceased acting as a conduit for those people. However, after Balogh introduced the parents to Mr Jensen, Balogh elicited Mr Jensen's cooperation by appealing to the needs of the parents and preying on his gullibility. The act of relaying comments and documents from Balogh to the parents had the effect that these words or documents were seen to be that of Mr Jensen when this was not the case.

34 Mr Jensen acknowledged that he exercised poor judgment in affiliating himself with people who 'had their own agendas and have sought to take advantage of his gullibility'.

35 Mr Jensen's claim now, meaning since he was found guilty of contempt, is that he was either a 'conduit' or 'liaison' for Balogh, sending and receiving affidavits that Balogh drafted and potentially advice that he supplied, at Balogh's behest, or that he followed Balogh's advice in his communications with the parents or was somehow influenced by him. The mother says that she spoke only to Mr Jensen on the phone during the period he was assisting the parents, and that she was never a 'client' of Balogh.

36 Mr Jensen was afforded opportunities to explain this relationship with Balogh during the contempt hearing, and failed to do so. More significantly, Mr Jensen made a number of previous representations and submissions to this court which undermine his version of events.

37 Mr Jensen appeared personally before Garde J when the injunction was granted. In the transcript of that hearing dated 2 August 2018, Mr Jensen did not offer this explanation of his behaviour. His conduct was most unusual. He told Garde J that he had that morning filed papers in the Magistrates' Court about the oath of allegiance being unlawfully removed from the 1996 Legal Practices Act. He asserted that charges were now being laid and said:

We've got no business in the court. We - this can't go any further. We put those in the Magistrates' court this morning, Your Honour. I'm relying on s 87 of the Imperials Act. Section 88 clearly has the Oath of Allegiance as well and s 90 also takes out - if you're familiar with it, I don't need to explain it which as you'll know about s 87 and s 88 and s 90 of the Imperials Act ... So I have no business in the court, Your Honour. This is now finished.

He then stated that if Garde J proceeded, his Honour would be 'acting in bias. So I will just take myself out of court, thank you' and concluded:

Mr Jensen: I'm sorry, Your Honour. I object. The court's finished. The court is over.

His Honour: No, I - hang on, you sit down, Mr Jensen, I'll give you a go in a moment, just relax.

Mr Jensen: No, no, no, I don't need another go, sir. Your Honour. I object.

38 Mr Jensen's filed affidavits do not show remorse or contrition. Rather they mirrored some of the rhetoric and obscure theories that appear in the offending correspondence with the parents. On 18 February 2022, Mr Jensen filed an affidavit stating, among other things:

The contents of this affidavit are based on fact and law and cannot be struck out in a court of law unless the facts and law are forensically rebutted.

...

I state that ... this original action is null and void.

The court has acted in bias by allowing the lawyers to file under false pretences.

I state that Lander and Rogers are creating case numbers that are not linked to the original orders.

I state that the [sic] Lander and Rogers are acting negligently and with alleged misconduct on behalf of their client the Victorian Legal Services Board by filing incorrect paperwork under a false claim into the Supreme Court. The Victorian Legal Services Board are displaying unprofessional conduct by being complicit to the action given that their profession is related to law.

I state that the Supreme Court is allowing the lawyers to file a false claim under the liability list.

He proceeded to set out various pseudo-legal arguments involving the validity of various aspects of the legal system and concluded that an exhibit to his affidavit demonstrated that there was 'misleading and deceptive conduct, attempt to pervert justice, unconscionable conduct, destruction of evidence, bias, and issues with the case'.

39 On 3 March 2022, Mr Jensen filed another affidavit which said, among other things:

2. I state that, an un-rebutted affidavit stands as truth in Law.

3. I state that, an un-rebutted affidavit becomes judgment in law.

1. I state that I have never advertised and/or promoted or suggested to any person, man or women [sic] that I have any license or qualifications to practice Law.

2. I state that the case [this case number] is now Null and Void and needs to be vacated based on the facts presented in this affidavit.

3. I state that 'Dennis Jensen and others', [case number] was the respondent in the Supreme Practice Court on 2nd August 2018 purportedly accused of acting like a lawyer, without forensic evidence. I state that there has never made any inference or explicit statements that I am a legal practitioner.

4. I state that I have never received the names of those who have accused me. Black's law Dictionary 4th edition-page 39. 'ACCUSER. The person by whom an accusation is made.'

5. I state that there are no accusers in this case only informants. I state that those informants are linked to criminal prosecutions and this case is under civil according to [Garde J's] Orders. Butterworths Legal dictionary 3rd edition page 222 'Informant' A person who lays an information in respect of a criminal charge and commences a criminal prosecution as a result.

...

1. I state that the affidavits served on me are false & misleading and cannot be used based on the information I have been able to acquire, that all lawyers since September 5th 2000 do not have the legal capacity to sign an affidavit, because they have not taken their correct Oath as per the Imperials Acts Application Act 1922.

...

1. I state that on page 1 of the Plaintiff Authorities folder 1 of 1 - Plaintiff's Authorities - Legislation - No.1. the Legal Profession Uniform Law Application Act 2014 (Vic) does not apply to a lay person. It applies to Legal professionals only and that I am not. All orders against me are null and void and this case was vacated as per my transcript.

2. I state that the Supreme Court should have recognised the Legal Profession Uniform Law Application Act 2014 (Vic) cannot be used against me. This shows incompetence and disrepute by the court.

...

1. I state that based on the above points the lawyers have acted with incompetence and negligence and the laws they are relying upon did make this case null and void, because one of the Acts does not apply and the other Act has proved the lawyers are not complying and have no right to be at the bar.

40 In that same affidavit, Mr Jensen quoted what he said before Garde J about the legal practitioners in this proceeding not acting legally in this case because the 'Oath of Allegiance' was removed from the 'Legal Practices Act'. He implied that Garde J's order was illegal and illegitimate because 'he was taken out of jurisdiction but he chose to unlawfully proceed anyway'. He stated that he has laid three separate 'criminal charges' against the Supreme Court with the Magistrates' Court involving treason and/or obstruction of justice. Mr Jensen accused the court's officers and the lawyers in this case of being accessories to these 'crimes'.

41 Mr Jensen's interactions with this court reveal that regardless of where these theories came from, Mr Jensen adopted them as his own and chose to confirm and endorse them on a number of occasions both in person and in documents filed with the court. He has not simply acted as a 'conduit' or 'liaison' for Balogh.

42 Both Mr Jensen and his son stated he is a changed person, consumed with the stress of the contempt court proceedings from around the end of 2021. Yet, these affidavits were filed by Mr Jensen in February and March of this year. At no point prior to the submission in the penalty hearing has he retracted these previous statements or distanced himself from these opinions, which are aimed at the legitimacy of the legal system and the administration of justice, and are echoed in the advice to parents and the affidavits supplied to them.

43 Further, his emails were mostly signed, 'Love and Blessings, Denn' or 'Love and Hugs, Denn' or just 'Denn', often in addition to an email signature 'Denn Jensen Managing Director' of the JTA Corporation. The parents addressed emails to 'Denn', save for the email expressly mentioned in the contempt reasons, addressed to 'Denn and Derek'.[28]

44 While I accept that it is possible Mr Jensen was influenced by others to give the advice he did to the parents or to supply them with the affidavits he did, he is responsible for his conduct, and he has not persuaded me that his culpability is diminished or that because he has distanced himself from these individuals this fact, of itself, removes the risk of re-offending.

45 I am not persuaded on balance that Balogh's interaction with Mr Jensen, whatever that might have been, can in any way be considered as mitigating.

(a) Mr Jensen did not taken any steps, before the penalty hearing, to grapple with his conduct. He defended the proceeding instead of accepting responsibility, and did so by cross examining witnesses to no end, including the mother, who has already been through a great deal. He demonstrated no real remorse for doing so. His defiance was prolonged and unreasonable. The contempt was contumacious. In addition, the content of the emails sent to the parents showed a casual attitude to legal authority structures and a defiance of authority figures. This speaks against Mr Jensen's explanation of his motivation, namely to help the parents, and instead speaks to being motivated by a general defiance of courts.

(b) The purpose of this proceeding is to punish past breaches. The advice has already been given to the parents. The proceeding is not about remedying any breach; it is punitive not corrective. It is therefore a criminal contempt.

47 I find that Mr Jensen's contempt was contumacious. He had a direct intention to disobey the injunction in order to advance his 'theories' with no reasonable belief that his conduct could be justified. There was clear evidence that leaves me with no doubt that he bore an obstinate resistance to authority that was co-incidental to seeking to 'help' the parents. This was a criminal contempt. The purpose of these proceedings is not to coerce Mr Jensen to comply with Garde J's injunction. The breach has taken place, and is incapable of remedy. Mr Jensen claims he will not breach it again. The purpose is to punish for a past contempt to vindicate the administration of justice, and not primarily to force compliance with an order.

48 Mr Jensen's breach was deliberate in that, in breaching the injunction, he deliberately encouraged the parents to breach the IVO against their son. As noted in the contempt reasons, the parents asked Mr Jensen more than once whether the proposed action of sending affidavits to the complainant directly would breach the IVO. He responded, '[w]e can deal with the orders by destroying the Mag Court later. Don't worry about the IVO's;'[29] and '[a]ny issues with the Police or the court we can handle it very easy because we can nullify and void both entities. Please don't stress we have your back. This is an easy one for us. Today we took out the High Court with a case "just for fun" LOL'.[30] A perverse or obstinate resistance to authority, first evident in 2018 before Garde J, remains clearly on display.

49 This was no accidental breach of the injunction nor could it be described as casual. Mr Jensen was evidently trying to get around the purpose and spirit of the injunction so that he could give advice of a legal nature to the parents, or (on his last version) facilitate or transmit advice and legal documents to the parents from another person whom he was well aware was not a qualified lawyer. His disclaimer that he was not a qualified lawyer and that he could only accept a donation instead of a fee, were (unsuccessful) attempts to overcome the technical terms of the order.[31]

50 Put differently, Mr Jensen could not have had a reasonable belief that he was not in breach of the injunction. I am satisfied beyond reasonable doubt that the breach was wilful.[32]

51 I have already found that Mr Jensen's conduct imperilled the due administration of justice.[33]

52 There is a need to deter Mr Jensen and others from repeating this contempt. A punitive aim is warranted to vindicate the authority of the court and bring home to Mr Jensen and others the importance of complying with court orders and of not engaging in unqualified legal practice. Mr Jensen now has an extensive history of such practice and it is important to protect the public from him and those who would follow him. General deterrence is, in the circumstances, an important sentencing objective deserving of weight in my deliberations.

53 As noted, the principal aim for punishing contempt is to preserve the orderly administration of justice with the purpose of specific deterrence, general deterrence and denunciation, taking into account the nature and circumstances of the contempt, the actual consequences and the effect on the administration of justice, the contemnor's personal circumstances and financial means, his culpability, reasons for his conduct, need for deterrence and whether he has exhibited contrition and made a full and ample apology.

54 The VLSB submitted that Mr Jensen incorrectly suggested that the effect of the contempt was merely the service of certain documents. The consequences were far more grave. The son breached an IVO and had to face criminal proceedings, the complainant suffered a breach of the IVO and the parents suffered the stress of knowing their actions contributed to their son's situation.

55 Mr Jensen claimed that he has complied at all times with Garde J's order, except for the one incident with the parents. He characterised this as a singular incident, but it spans an extended period from August to October 2020. He submitted that while he may have fallen prey to his own poor judgment and undue influence from his affiliations with certain individuals, he now accepted responsibility for his actions. In the combined effect of his circumstances, he asked that I find that he made an error in judgment. As I have stated, the conduct was neither casual nor accidental, it was deliberate conduct of a serious nature.

56 This was a serious contempt. Mr Jensen imposed nonsensical notions about the administration of justice on vulnerable and desperate people while pretending to assist them with legal matters, as if qualified to do so and they were clients. To purport to give advice and assistance in an ongoing criminal investigation/proceeding when totally unqualified to do so and lacking any understanding of the obligations that lawyers must discharge, deliberately breached an order that had been sought by the regulator in the pursuit of the protection of the public from conduct Mr Jensen had previously engaged in.

57 I am wholly unpersuaded by Mr Jensen's claim that he was pressured into this conduct by the parents who were upset and wanted his help, or that he was led into it through his gullibility in believing that Balogh could assist them. Mr Jenson's unconvincing attempts to downplay his role or reduce his culpability require that his recent expressions of regret or remorse must be significantly discounted. It could never be a reasonable motivation to give someone purported professional advice on the basis that you felt very sorry for them and wanted to help. His unqualified professional help was harmful, not helpful. The circumstances of Mr Jensen's contempt require the imposition of a custodial sentence to properly reflect the sentencing purposes of general and specific deterrence.

Actual consequences of the contempt and effect on administration of justice

58 Mr Jensen submitted that, whether wholly or partly as a result of his involvement, the son pleaded guilty to breaching an IVO by arranging for an affidavit to be served on the complainant. The son only impinged on the IVO by service of those documents. The adverse effects of the son's breach were limited. As Mr Jensen is no longer affiliated with the individuals who contributed to the orders and the subsequent breach, the effect on the administration of justice was also limited.

59 I do not accept this submission. The actual consequences of the contempt were, as set out above, serious, both for the administration of justice and for the individuals affected by Mr Jensen's conduct.

60 Mr Jensen disobeyed orders put in place to protect the public and the administration of justice. It is necessary to dissuade both Mr Jensen and members of the public who might follow his example. It is essential that only qualified lawyers provide legal services to members of the public. A significant component of the sentence must be directed to general deterrence and denunciation. His interference with the administration of justice[34] is such as to warrant a custodial sentence to properly reflect relevant sentencing purposes. That said, I must be satisfied that alternative dispositions are not appropriate as a sentence of imprisonment is a last resort.

Contemnor's personal and financial circumstances

61 I accept that Mr Jensen is generally in poor health, a matter considered later in these reasons.

62 Mr Jensen submitted that since his childhood accident, he has relied heavily on the assistance of others to perform basic functions. His dependency and kindness and assistance of others inspired him to become a care giver himself. However, his strong desire to help others has left him vulnerable to abuse as he finds it difficult to say no to anyone in need, even if it is at the expense of his personal wellbeing and safety. He is the sole carer for his long-time friend and colleague, Ms Summers. Mr Jensen was not motivated by financial gain but a sincere desire to help the parents and was acting on his sense of moral obligation to be of assistance.

63 I accept that he is regarded as having a kind and gentle nature with a need to help others, a generosity of spirit and that he is a full-time carer for his ill friend.

64 Mr Jensen's personal financial circumstances are not clear. He stated that he lives in a small unit on a property owned by his son. He is self-employed offering an analysis service for avoiding excessive work cover premiums. Since 2018 his company has been struggling. Because of the action taken by the HCC and the VLSB, many major clients have refused to be associated with him. For the past 5 years, his annual income has not exceeded $50,000. Mr Jensen said that he has 'lost all [his] money', although his business has picked up in recent times to some extent. He last received income from his business a number of months ago. His only asset is his 2007 car. He has no savings. He is the full-time carer for his friend, Ms Summers, and any money that comes in goes to pay her rent and her bills. He has no property or substantial assets in his name. Any financial penalty imposed will have a significant impact on his capacity to fund himself and carry out his duties as a primary care giver. However, he also submitted that as his business was picking up he might be able to cover a penalty imposed by the Court.

65 I am satisfied that he would not, at this time, be able to meet a substantial financial penalty. I am also satisfied that the VLSB is entitled to an indemnity costs order. I can take into account that such an order will impose a significant financial burden on him such that any further financial penalty may be crushing.

66 The VLSB submitted that Mr Jensen still does not seem to appreciate what he did wrong. He has never given a full and ample apology that demonstrates he appreciates all of the consequences of his actions. Mr Jensen exhibited no contrition and made no apology until after he was convicted. He denied any wrongdoing from the start. He first positively denied that he had sent the emails, before he abandoned that position and simply denied that he had provided advice of a legal nature.[35] He has done nothing to indicate that he appreciates the seriousness of his conduct or its impact on the accused and his parents.

67 While he now appreciates and is upset that the mother is in pain, he still seeks to downplay his role, blame others for his actions, and to rely on technical defences. He seeks to blame Balogh. He repeatedly emphasised that he never breached Garde J's orders except for this isolated 'sole' incident. He also sought to minimise the effect of his advice to serve an affidavit on the complainant, in breach of the IVO. He has not ever indicated that he understands the effect it might have on a complainant in a rape case to receive a detailed version of events of the night in question, making various accusations against her, directly from the accused and his family; how the accused would have felt having to face further criminal charges for following that legal advice; how the accused's parents would have felt knowing that they told him to adopt this advice; and how filing various lengthy affidavits in a criminal trial, where an accused has the right to remain silent, may impact the accused's defence.

68 Mr Jensen has claimed that the VLSB made a misrepresentation to this court in not disclosing relevant emails from Balogh. He called the lawyers for the VLSB for cross examination in the contempt proceedings; he called the mother for cross examination. He did not put these suggestions to those witnesses and seeks to do so now by way of submission.

69 The VLSB submitted, with some force, that Mr Jensen's failure to appreciate precisely what it is he did wrong and comprehend its full consequences, combined with his attempts to downplay his responsibility, indicate a real risk that he may engage in prohibited behaviour again and heighten the need for specific deterrence.

70 Mr Jensen submitted that he is deeply remorseful, regretting any suffering or damage his actions caused the parents or their son, claiming he accepted responsibility for his actions and sincerely apologising unreservedly to the parents, the son, the court, and the plaintiff. He appeared to have found feelings for remorse from recently reading the mother's affidavit about the effect of his conduct on her and her family. He expressed an apology in court but has not communicated that in any way to the victims of his conduct.

71 I find that Mr Jensen has expressed recent contrition, notably since he was found to be in contempt. His son has attested that he is remorseful for his actions. I am satisfied that Mr Jensen feels very bad for the mother's suffering and that he has been quite affected by these proceedings. Yet, his lack of insight and his belated expressions of contrition speak poorly of his likely future conduct and requires that the court impose a penalty that brings home to him the seriousness of his contempt.

72 The VLSB submitted that Mr Jensen has an extensive history of engaging in unqualified legal practice. In Garde J's 2018 judgment there are four instances detailed concerning conduct as far back as 2016. The incident with the parents is a further example of this serious misconduct. In addition, Mr Jensen has been the subject of prohibition orders by the HCC which issued a public warning advising of the serious risk to the health, safety or welfare of the public. Mr Jensen is said to have encouraged a person suffering from ovarian cancer from stopping all conventional, evidence-based treatment and to treat her condition with black salve. There is a pattern of engaging in conduct for which Mr Jensen is not qualified and which puts people at risk.

73 Mr Jensen accepted that the HCC's warnings and prohibition orders were directed at him but his explanation from the well of the court was that he did 'contest it' and 'put affidavits in to them ... where I had proof and evidence that the lady had her own black salve and she'd been using her black salve for three, four years, prior to meeting me. And I just ... because she was desperate, she came to get me to help her ... administer it'. Mr Jensen said it was not true that he advised the woman to use black salve instead of modern medicine and that he told this to the HCC but 'nobody listened'. He never breached the HCC prohibition orders, in the same way he never breached the VLSB injunction, save 'this one incident where I felt heartbroken for this lady'.

74 Mr Jensen said that since 2018, his predisposition to gullibility and the influence of others has changed. He says now he las left all that behind him, and is living a very simple life on his son's property not getting involved in such matters. Mr Jensen wants to be a victim too. He said these proceedings have 'taken a massive toll on me as well, Your Honour, and that's my fault and I have to - I have to wear that, but it's taken a massive toll on my health, my relationships, and a big... toll on my business. ... All I want to do is get back to business.'

75 Mr Jensen's repeated reliance on the fact that he was manipulated and used by Balogh and that Dr Assad and his character referees consider he is very susceptible to influence, adds to the risk that he may do something similar in future if someone takes advantage of his compliant nature, resulting in other unsuspecting members of the public following bad legal advice.

76 That said, I accept Mr Jensen's son's evidence that his father now lives on his property, he monitors his father's associates, and prevents him from interacting with bad influences - to the extent such a thing is possible for a person with a full-time business to run. I accept his son's evidence that Mr Jensen has learned a lesson from this proceeding, has suffered significant stress as a result of it, and from the consequences that may be visited upon him as a result.

77 Mr Jensen was asked how the court was to be persuaded that in the future he will not start again peddling theories like those that appear in the correspondence with the parents. He said, 'they were words that were put into my mouth, they're not my words'. He asserted, in emotive language that he is not susceptible to such influence again.

78 Nevertheless, I am satisfied that there is still a real risk of Mr Jensen engaging in prohibited conduct again. The need for specific deterrence remains an important factor. Mr Jensen's defence of the injunction application before Garde J, and his attempts to accuse the court and the legal practitioners involved of all manner of crimes, all spoke to his general rejection of the authority of the court or the legal system generally. Garde J's order was clearly read and explained to Mr Jensen. He nevertheless spent a number of weeks advising participants in a serious criminal proceeding about their legal rights and options. They relied upon him to their great detriment. It is necessary for the court to ensure that Mr Jensen does not offend again and fully respects that for very good reason only trained legal practitioners dispense legal advice and services to members of the public.

79 Mr Jensen submitted that Dr Assad's letter spoke to his ill health and also that his personality is such that he is 'influenced really easily' and that Dr Assad has told him a number of times, 'you've got to stop seeking approval'. His analysis was that his humility overcame his brain, and his heart was bigger than his head.

80 The VLSB submitted that Dr Assad's letter was not expert evidence. He had not reviewed Mr Jensen's medical records regarding his injury. He made broad statements without reasoning or an evident scientific basis regarding the effect of Mr Jensen's brain injury on his personality, which ought be disregarded. The letter also gives evidence about matters relevant to Mr Jensen's personality that are not medical facts. The letter should be treated in the same way as the other character letters.

81 Counsel submitted that Verdins principles are inapplicable as there is not evidence in this case about Mr Jensen's condition or how that affects his culpability, nor whether there is a reduced relevance of the need for specific and/or general deterrence. If Dr Assad's letter is to be taken into account in determining whether his culpability is reduced, it ought not be a substantial reduction. There is no indication, even in Dr Assad's letter, that Mr Jensen was unaware that what he was doing was wrong. At most, Dr Assad offers a general comment about Mr Jensen's potentially impaired judgment because of his personality. There is also no specific evidence about the effect of a term of imprisonment on Mr Jensen's health. The court would simply be assuming that a term of imprisonment would be more burdensome for Mr Jensen than for a person not suffering from his condition.

82 I cannot, on the material before the court, conclude that Mr Jensen's culpability for the contempt is limited by his physical and mental state. I accept that Mr Jensen is generally in poor health, including poor mental health. He claims he was very easily influenced, was gullible or was 'a soft touch'. I am unable to determine precisely whether or how his conditions caused him to breach the court order. Mr Jensen claimed he has the capacity to toughen up over this experience, has done so over the last few months, and will not reoffend. Mr Jensen's culpability is not lessened because of his condition. I have not been persuaded that it is or that there is any less need for specific or general deterrence because of it.

83 While I do not think that the Verdins principles are properly engaged on the strength of the letter from Dr Assad, I consider Mr Jensen's current health conditions are not irrelevant and permit me to conclude that a custodial sentence would be a disproportionate burden for him. In the circumstances, this is a mitigating factor against a custodial sentence, and may, together with other factors, such as the measures his son has put in place, and his important role in caring for his ill friend, warrant the suspension of that sentence.

84 The VLSB sought an order that Mr Jensen, in addition to any sentence imposed, pay indemnity costs for these proceedings because of the gravity of his conduct and the manner in which he has conducted his defence. As noted earlier, I accept this submission and will so order. I take that liability into account on my overall assessment of the appropriate penalty.

85 Imprisonment is a penalty of last resort, particularly in a contempt proceeding. However, in all the circumstances, I am satisfied that the strong need for specific and general deterrence, as well as the need to vindicate the administration of justice, can only be met by a custodial sentence. I have reviewed other recent contempt penalties to which the VLSB drew my attention. In all the circumstances and on balancing all relevant considerations a sentence of 3 months' imprisonment must be ordered.

86 Nevertheless, because of Mr Jensen's poor health, the caregiving role he plays for his ill friend, and the evidence of his son that there have been significant changes made in Mr Jensen's life that might prevent any re-offending, I am satisfied that the objectives of the custodial sentence may be achieved by a wholly suspended sentence.

87 The sentence of imprisonment is suspended on a condition. Mr Jensen must be of good behaviour until 12 October 2023 and in particular must not breach the injunction again.

(a) Mr Jensen is convicted of criminal contempt of court.

(b) He is sentenced to 3 months' imprisonment, wholly suspended for a period of 12 months.

(c) Mr Jenson pay the VLSB's costs to be assessed on an indemnity basis.

[1] Victorian Legal Services Board v Jensen [2022] VSC 430 (Contempt reasons).

[2] An interim prohibition order dated 14 May 2018; two final prohibition orders dated 7 August 2018 and 18 January 2019.

[3] 18 January 2019; 4 June 2018; 8 August 2018.

[4] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1).

[6] CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527, 568 [163] (Grocon).

[7] Sidebottom v R [2018] VSCA 280 [53].

[8] Witham v Holloway (1995) 183 CLR 525, 534.

[10] Hera Project Pty Ltd v Bisognin (No 2) [2019] VSC 625, [10] (Hera).

[12] Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569, [14] (Moira).

[13] Ibid quoting Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1985) 9 FCR 194, 207.

[14] Ibid [24] quoting Grocon (n 6) 570 [174].

[15] Ibid quoting Grocon (n 6) 571 [177].

[17] Hera Project Pty Ltd v Bisognin [2019] VSC 483, [80].

[20] Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448, [5]; R v Witt (No 2) [2016] VSC 142, [93].

[21] Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596, 619 [54].

[22] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[23] Contempt reasons (n 1) [2] and [15].

[27] Contempt reasons (n 1) [68] and [70(k)].

[32] Chan v Chen [2007] VSC 52, [4].

[34] Victorian Legal Services Board v Thexton (penalty) [2021] VSC 391, [26].

[35] Contempt reasons (n 1) [61] and [64].