Aaron McKenzie (a pseudonym)[1] v The Queen - [2017] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0122

AARON McKENZIE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2017
DATE OF JUDGMENT:	8 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 243
JUDGMENT APPEALED FROM:	DPP v [McKenzie] (Unreported, County Court of Victoria, Judge Stuart, 17 May 2017)

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CRIMINAL LAW – Appeal against sentence – Two breaches of a supervision order contrary to s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Aggregate sentence of 12 months’ imprisonment with no non-parole period – Whether sentence manifestly excessive – Whether judge erred in rejecting opinion of forensic psychologist as to the reasons for the offending – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms D L Piekusis	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
HANSEN JA:

Introduction and summary

On 7 February 2017, the applicant pleaded guilty to two charges of breaching a supervision order contrary to s 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘Supervision Act’). The first breach involved having contact with a child under 16 years of age and the second breach involved the consumption of alcohol.

On 17 May 2017, a judge of the County Court, exercising summary jurisdiction,[2] sentenced the applicant, then aged 60, to an aggregate sentence of 12 months’ imprisonment without fixing a non-parole period.[3] The maximum penalty for each offence is five years’ imprisonment but, under the summary jurisdiction, a two year maximum was applicable.
[2]See Supervision Act s 172.
[3]DPP v [McKenzie] (Unreported, County Court of Victoria, Judge Stuart, 17 May 2017) (‘Sentencing remarks’).

The applicant seeks leave to appeal against the sentence on the basis that it is manifestly excessive, and that the judge erred in rejecting an opinion given by a forensic psychologist as to why the applicant had offended.

For the reasons that follow, the application for leave to appeal will be refused.

The applicant’s criminal history and the making of the supervision order

The applicant has prior convictions for offending against young boys. He also has prior convictions for theft, dishonesty, assault and drunk and disorderly offences.

On 4 September 1978, the applicant was convicted in the County Court at Bendigo of one charge of gross indecency and one charge of indecent assault on a male. He was sentenced to 6 months’ imprisonment for these and other offences, with the sentence being suspended on his entering into a $200 good behaviour bond for two years.

On 6 September 1985, the applicant was convicted in the Williamstown Magistrates’ Court of two charges of indecent assault on a female under 16 years of age and was fined $300 on each charge.

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 243
Decision Date: 8 September 2017

CaseChat Overview and Summary

Aaron McKenzie, also known by a pseudonym, appealed against the sentence imposed on him by the Supreme Court of Victoria, following his conviction for two breaches of a supervision order under section 160 of the Serious Sex Offenders (Detention and Supervision) Act 2009. The trial judge had imposed an aggregate sentence of 12 months imprisonment with no non-parole period. McKenzie argued that the sentence was manifestly excessive and that the trial judge had erred in rejecting the opinion of a forensic psychologist regarding the reasons for his offending behaviour. The appeal was ultimately dismissed by the Court of Appeal.

The primary legal issues in this appeal centred on the appropriate sentence for McKenzie's breaches of his supervision order and the trial judge's consideration of expert opinion. The appellant's counsel contended that the trial judge had failed to appropriately weigh the mitigating factors and had erred in disregarding the forensic psychologist's opinion, which was that McKenzie's actions were not driven by sexual motivation. The appellant submitted that this error had led to an excessive sentence. The Crown, on the other hand, argued that the sentence was appropriate given the nature of the offences and the need to protect the community.

The Court of Appeal found that the trial judge had properly considered the circumstances of the case, including the seriousness of the breaches and the need for deterrence and denunciation. The court held that the trial judge was not bound to accept the opinion of the forensic psychologist and was entitled to form his own view on the evidence presented. The appeal court found that the sentence was not manifestly excessive and that the trial judge had exercised his discretion appropriately in imposing a sentence that reflected the seriousness of the offences. Consequently, the appeal against sentence was dismissed.

No further orders were made by the Court of Appeal.

Orders