Director of Public Prosecutions v Mackenzie

[2021] VCC 467

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-18-00836

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT MACKENZIE

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2021
DATE OF SENTENCE:	22 April 2021
CASE MAY BE CITED AS:	DPP v Mackenzie
MEDIUM NEUTRAL CITATION:	[2021] VCC 467

REASONS FOR SENTENCE

---

Subject: Criminal Law Sentence

Catchwords: Trial by jury – Conviction on one charge of attempted rape – Historical Sex Offence – 13-year-old victim -

Sentence: Two years imprisonment, wholly suspended with an operational period of two years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr C. Thompson	Giorgianni and Liang Lawyers

HIS HONOUR: 

1Grant Mackenzie, on 16 April 2021, you were found guilty by a jury of one charge of attempted rape.  The offence was committed by you in 1994.  In 1994 the maximum penalty that applied for rape, I am told, was 10 years and the maximum penalty for attempted rape was accordingly five years.  I have to be guided by that maximum in imposing sentence.

2The facts are as follows.  You were at home drinking with your brother and possibly other males.  Your 13-year-old sister had a friend over, the victim in this matter.  Your parents were out of the house.  You were the only adult of the household it would seem at that time.

3Your victim, Adrianna Markovic[1], was affected by alcohol significantly.  She was only 13.  She was not an experienced drinker.  Your offending occurred whilst she was vomiting in the toilet and you tried to kiss her.  You put your hand up her skirt and attempted to penetrate her vagina, probably using your fingers.  It is unclear how long this went on.  I sentence you on the basis that it was not protracted. 

[1] A pseudonym.

4It is a serious offence.  Attempting to violate anyone, let alone a 13-year-old girl in such vulnerable circumstances, is extremely reprehensible and this Court must impose a sentence that denounces your conduct and deters others. 

5A victim impact statement was filed and I take into account the impact on your victim.  It has been devastating for her.  I take into account both her and her mother's evidence as to her presentation in the days following the incident.  Her victim impact statement is eloquent in expressing how far-reaching and devastating the trauma of a sexual offence can be, particularly for one so young.  She was deeply traumatised by your offence and continues to be.  The offending has had a significant impact upon her.

6You were 20 at the time.  I have received two references as to your work history and general reputation.  I accept the matters set out in your counsel's helpful written submission as to your personal history.  As I pointed out, and as was discussed and acknowledged by the parties during the plea hearing, at 20 you were a young offender and would have been dealt with as such at the relevant time. 

7There has been a period of delay.  But for one matter of concern in your history you appear to have led a productive life in that time.  As I indicated, I had contemplated a Community Corrections Order, given that hours of community work would serve as a punitive measure and, further, that offending behaviour programs could be considered.  But given the passage of time it would seem to be not appropriate, but also I have concluded that due to the seriousness of the offence a gaol term is required to reflect general deterrence and denunciation.

8I take into account the maximum penalty that applied at the time, the Prosecution concession in respect of a suspended gaol term,  your young age at the time and the circumstances of the offence such as they were, including, not that it excuses it or justifies it in any stretch at all, but you would have been affected by alcohol as well and which may have reduced your inhibitions.  Notwithstanding that, at your age of 20 and such a young victim, as I say, it is extremely morally reprehensible.

9I sentence you as follows, Mr Mackenzie.  On Charge 2, the charge of attempted rape, you are sentenced to two years imprisonment, which is to be wholly suspended for two years. 

10Any other matters?  All right.  That concludes the matter, Mr Mackenzie.  Thank you, Mr D'Arcy.  Thank you, Mr Thompson.  I will now adjourn the court.

‑ ‑ ‑