Director of Public Prosecutions v McKenzie
[2018] VCC 1168
•26 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| SEX OFFENCE LIST |
Case No., CR-18-00120
Indictment No. H13097197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH WILLIAM McKENZIE |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 13 July 2018 |
| DATE OF SENTENCE: | 26 July 2018 |
| CASE MAY BE CITED AS: | DPP v McKenzie |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1168 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – carnal knowledge of a girl between 10 and 16 years contrary to s48(1) of the Crimes Act 1958 – plea of guilty
Legislation Cited: Crimes Act 1958, s48(1); Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v AP [2009] VSCA 249; Director of Public Prosecutions vMasters (a pseudonym) [2016] VCC 1925; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; Stalio v The Queen [2012] VSCA 120
Sentence:Convicted and sentenced to a period of imprisonment of three years with a minimum period to serve before being eligible for parole of eighteen months. Section 6AAA declaration: Conviction and sentence of four years’ imprisonment with a minimum of two-and-a-half years to serve.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Grant | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A Cannon (plea hearing) Ms M McKenna, solicitor (sentence hearing) | Slater & King Lawyers Pty Ltd |
HIS HONOUR:
1Kenneth William McKenzie was born on 20 April 1944. He is now aged seventy‑four. When these matters occurred, he was aged twenty-seven.
2He has pleaded guilty to the charge on the indictment of carnal knowledge of a young girl between the ages of ten and sixteen. That was an offence under s48(1), as it then stood. The maximum penalty prescribed for that offence is 10 years’ imprisonment.
3It is estimated that this crime occurred somewhere between 28 July 1971 and 11 August 1971, which effectively is 47 years ago. It was appropriate, because of that period of time, for the relevant section to be tendered, and that was as part of Exhibit A. It is also to be noted that the prosecution tendered the relevant amendment which eliminated the time limits that previously applied to prosecutions of this type.
4Given this offence, Parliament has determined that, irrespective of the outcome of what this Court decides, Mr McKenzie is subject to the reporting requirements of the Sex Offenders Registration Act 2004. It is necessary for me, Ms McKenna, to simply provide that notice to your client. And Madam Associate, I think he has to acknowledge that, does he not?
5ASSOCIATE: Yes Your Honour.
6HIS HONOUR: We perhaps should do that now. Is that ready? I will allow you to ‑ ‑ ‑
7MS McKENNA: Thank you Your Honour.
8HIS HONOUR: Have you got a pen there, Ms McKenna?
9MS McKENNA: I do not.
10HIS HONOUR: Ms McKenna, that is determined by Parliament for life, but it is necessary for your client just to simply sign that acknowledgement. It is not an order of the Court, it is an order of Parliament.
11MS McKENNA: Thank you Your Honour.
12HIS HONOUR: Thank you. There was also sought by the prosecution the order under s464ZF, which I have signed, the forensic sample order.
13Mr McKenzie is the eldest in a family of which he has one brother and six younger half-siblings. His parents’ home at the time of this offence was at 46 Rae Street in Wangaratta, and it was there that he was residing, subject to sickness leave from his current job in the services, when this offence took place.
14The victim, whom I will not name, a girl of the age of ten, was sleeping at his home and was a friend of his younger sister, Margaret, what we often describe as “sleeping over”.
15She was attacked by Mr McKenzie in the early hours of the morning. That attack involved him having intercourse with her.
16It is to be remarked that Mr McKenzie had further offences in 1981, but certainly at the time had no prior offences.
17As I said, Exhibit A was tendered, which was necessary to ensure that the appropriate legislation was before the Court. Exhibit B was the Prosecutor’s opening, which was accepted by Ms Cannon as disclosing the facts upon which I am to sentence Mr McKenzie.
18During the plea, I discussed with counsel, and made a close examination of, the depositions, and in particular the VARE of the victim. The VARE was made by the victim when she was fifty-five. That is 45 years after the attack took place, and is dated 29 September 2016.
19At p32 of that VARE, the victim talks of the excruciating pain that she endured when Mr McKenzie had intercourse with her. The quotation at p32 is all that is sufficient, where she says:
“… you’re a little kid you’re not built – you’re not equipped for things like that, right, so it’s – it’s – it’s so excruciating pain, you know. But people like that don’t care. You know, they just want to do what they want to do.”
20It is difficult of course, after this time, for the Court to fully appreciate such physical impact, but clearly, given the difference in ages, I accept the comments made, albeit so many years after, by the victim as to the physical circumstances of this crime, and Ms Cannon had no issue with that when it was discussed.
21The victim filed a Victim Impact Statement, Exhibit C, and I note the contents of it. I read the matters set out at paragraph 3 of the Opening, which the learned Prosecutor said was based on advice received from the carer.
22Paragraph 3 of the Opening says this:
“The Complainant [or the victim in this matter] has a significant history of mental health issues and is diagnosed with a mild intellectual disability, a personality disorder and a panic disorder.”
23It is difficult in those circumstances to be able to intellectually discern the precise impact of this very early sexual attack upon this young girl. As I indicated during the hearing, one in those circumstances finds it difficult to be precise as to the effect of the sexual assault, especially with one so young, and I note the reference in the VARE to an earlier assault.
24Saying that, however, and understanding that, I note in the Victim Impact Statement, in particular at p2, the victim said:
“I feel from the time it happened until now, I feel that my body wasn’t worth anything. I felt dirty, unclean and like no one would want to be me [or] with me because of what happened.
Why has he got the right to do that to an innocent child?
… .”
25As I say, the consequences of this offending, referred to by the victim, are difficult to be precise about, but I accept those matters as put. As was correctly put and commented upon by Ms Cannon and the prosecutor, Mr McKenzie subsequently committed similar offending, albeit not priors. Such offending is before the Court simply so that the Court understands the full history. It is relevant in the sense of determining an appropriate sentence.
26It is important to tell Mr McKenzie he does not come up for sentencing again. In the circumstances, when one understands this particular crime and the fact that further offending occurred subsequently, for which he was sentenced in March 1981 at the Wodonga Magistrates’ Court, the combined impact of the totality of this particular crime that I am dealing with and the subsequent criminology indicate clearly that Mr McKenzie had a paedophilic issue.
27That subsequent offending also occurred in circumstances of a marriage breakdown. Mr McKenzie was suffering psychological issues, and had been left with the problem of looking after his then two children and caring for them, as I say, subsequent to the break-up of his second marriage.
28These offences, dealt with at the Wodonga Magistrates’ Court, involved three young girls, and there were nine charges. All of those young girls were under the age of sixteen.
29At the Wodonga Magistrates’ Court, those matters were dealt with by way of an order made in March 1981 for probation for psychiatric treatment, for which Mr McKenzie was subsequently admitted and received psychiatric assistance.
30The defence tendered Exhibit 2, the report from the clinical psychologist, Ms Carla Lechner. Her report was dated 8 June 2018, and she spoke of the therapy that Mr McKenzie had gone through. She noted that there had been no offending since the conviction in 1981, and her description of Mr McKenzie was that he was a “regressed child molester”.
31It is to be noted in that report that at the time of the offending, while on leave from the services for psychological issues and the suffering of depression, this was the time that Mr McKenzie had been given home leave, and it was at this time that this assault took place.
32As I have earlier said, like the latter offending, this offending also happened subsequent to a matrimonial break-up, when Mr McKenzie’s then wife left him and took the children.
33Mr McKenzie had, as a result of that break-up, been placed in hospital because he had made a threat of violence.
34I further note in the report of Ms Lechner her reference to the history of depression throughout Mr McKenzie’s life, and to the likelihood, if he is jailed, of the risk of him developing further issues from a psychological or psychiatric point of view. I accept, given the history and opinion of Ms Lechner, that principle 5, and indeed 6, of R v Verdins & Ors (2007) 16 VR 269 is applicable.
35The learned Prosecutor, in sentencing submissions – Exhibit D dated 12 July 2018 – stressed to the Court, firstly, that it was serious offending and that it was aggravated by the breach of trust, which I accept. Here was a young girl, as I said, staying over in the bedroom of Mr McKenzie’s sister, who was entitled to feel safe in that house, as were her parents, no doubt, and she was subjected to an assault involving sexual intercourse at her age.
36A further aspect of aggravation was that no condom was used. To be clear about that, there was not an issue, one would imagine, or concern about pregnancy, but an issue as to disease.
37Insofar as the matters of mitigation, the prosecution accepted that age was a very important factor, given that Mr McKenzie is now seventy-four. It was also accepted that the record of interview was in itself a very valuable admission by Mr McKenzie, in that there were full admissions. A reference to that will come later.
38The plea of guilty was one of substance. It was in the interests of justice, it was utilitarian, and it was particularly valuable in the circumstances, given the accepted mental condition of the victim. As such, it is appropriate for a discount to be provided, and I do so.
39It is noted also that prior to this matter coming before the Court, on a day approximately five years ago in Wangaratta, Mr McKenzie met the victim and personally apologised at that time.
40Mr McKenzie has, since this offending, reformed his life. That reformation is confirmed not only by the fact of no offending, but also by the report prepared by the psychiatrist, and by the testimonials, in particular from his current wife, as to how he has lived his life.
41It is to be noted that there has been no further offending since 1981, so there are some 37 years during which Mr McKenzie has effected rehabilitation.
42The learned Prosecutor gave me the Court of Appeal case of R v AP [2009] VSCA 249, [8] and [9], where it is set out that age in these circumstances is obviously a very important factor in sentencing. That case was a significantly different case, because the delay involved a situation where, albeit that the accused was aware of a police statement being made, it was 15 years after that time until a prosecution took place. Hence the Court took the view that those 15 years were spent in circumstances where the accused should have been brought to justice much earlier.
43Here, of course, as I remarked during the plea and as Mr McKenzie rightly said, he was aware that what he did was wrong, but he hoped that it would never come to light because of the risk of jail. And, of course, this is always a difficult factor in crimes of this sort. It is now the accepted view of Parliament – and indeed Judges are required to advise juries about this – that there are many reasons why persons who are so assaulted do not complain for many, many years. It may well be that recent publicity has a lot to do with these matters coming before the courts.
44However, not only does one have to take account of the excellent rehabilitation effected by Mr McKenzie, but, in addition, the fact that delays in reporting these matters are not uncommon because of the impact on such victims.
45Ms Cannon, in her plea, tendered a written submission, Exhibit 1, and spoke of it orally. Ms Cannon accepted that this was a serious offence. In particular, she stressed that I am now dealing with Mr McKenzie at the age of seventy-four, and that any prison sentence would obviously be dramatic, given that age.
46Ms Cannon stressed the rehabilitation that Mr McKenzie has effected, which is confirmed not only by the report of Ms Lechner, but in particular, by the strong reference given by his current wife, which I read again, Exhibit 3. As I say, there have been no further offences since 1981. His personal background shows that he has an excellent work record, that he has worked hard, and as demonstrated by his current wife, has been an excellent provider.
47The offending itself seems to have occurred – not only in this case but the subsequent offending – when Mr McKenzie was undergoing psychological stress connected with breakdown of his marriages. The circumstances seem to be that it is stress that exacerbates the underlying paedophilia which he did suffer in those times, and no doubt does suffer, but the circumstances have not been such that there has been any further offending.
48To put it at its best, it may well be that his own particular personality has been able to keep it under control, given the circumstances that he has endured. In that regard, I note in his record of interview his remorse, and the comments made that this offending has been a heavy burden for him.
49This Court, and Ms Cannon, stressed that the issue of delay had to be taken into account, and that delay is considerable. Ms Cannon stressed the genuine remorse of Mr McKenzie, his apology, which was not connected to the legal proceedings but came about from a chance meeting at a garage, and his degree of frankness in his record of interview with the police, as demonstrated by the record of interview. In particular, it was pointed out at Question 129 of the interview, the police said “It is not often that we get a person in these circumstances who is so frank with the police”.
50It was submitted that the admissions made in that record of interview, and the plea of guilty, were both significant and valuable, with which I agree. It was also noted and put that the offending must be seen in the terms of being committed while Mr McKenzie was in some mental distress. The circumstances of that were not put in a Verdins case, but put simply by way of an understanding of the machinations of why this weakness in his character came to the fore at this time, and indeed understanding why it subsequently arose.
51Mr McKenzie’s own apology was stressed, and I stress again his own comments, which I accept, that this offending against this young girl has been a heavy burden upon him throughout his life.
52Ms Cannon went to Ms Lechner’s report again, and relied on the explanation given, which I have just referred to as the reaction to stress at the time of this crime. She stressed the current analysis of risk. While I accept that, based on the professional assessment, given the underlying problems, I think it is perhaps somewhat optimistic. But I suppose the proof is in the pudding, and for 37 years there has been no further offending of any sort, much less any sexual offending.
53Ms Cannon also stressed the issue that would no doubt occur, and this Court would have to take into account, that the jailing of a seventy-four-year-old man has its own difficulties, he being a person who currently suffers with depression, and the principle that I have referred to in principles 5 and 6 of Verdins is appropriate. I accept that Mr McKenzie is prone to depression, and indeed this has been demonstrated. Some three weeks after he was confronted with this matter and made a record of interview, he was admitted to hospital for a period of three weeks from August 2017 into September, and indeed has continued counselling since that time.
54Given the totality of those matters, Ms Cannon submitted to the Court that I should consider not jailing Mr McKenzie, but fully suspending the sentence. The Prosecution did not dispute that a fully suspended sentence was an available option.
55The Court was handed the case of Stalio v The Queen [2012] VSCA 120, which speaks about the considerable importance of age in this sentence.
56I was also handed a number of County Court decisions. One, of course, takes those into account and renders them appropriate judicial comity; however, the factual circumstances were significantly different in each case, albeit that I looked at them generally. The purpose for which Ms Cannon put them forward was to demonstrate that there were not a lot of cases – and this was confirmed by the Prosecution – where similar such offences have occurred, where a person, so aged, has to be sentenced.
57The only case of the ones put to me where a suspended sentence was imposed, and I must say I would not have granted it, was Director of Public Prosecutions vMasters (a pseudonym) [2016] VCC 1925, and that involved an person aged seventy-two years who had abused his own child over a long, long period. As I say, without in any way reflecting on the sentence passed, it certainly would not have been a sentence that I would have passed.
58However, to the effect that they assist the Court, I have indeed considered them. The principles that do relate, most importantly, of course, have been recently set out by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, [49], [50] and [85].
59At [49] and [50], the Court said this:
“‘… The administration of the criminal law involves individualised justice.’ The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. [T]he administration of criminal justice works as a system … It should be systematically fair, and that involves, amongst other things, reasonable consistency. … [T]he consistency that is sought is consistency in the application of the relevant legal principles’ …
… but does not, however, require adherence to a range of sentences that is demonstrably contrary to principle.”
60At [85], in assessing the impact of a plea of guilty, the High Court said:
“A plea of guilty does not diminish or alter the duty of a sentencing judge or a court of criminal appeal to sentence according to law. The duty is to impose a sentence that is appropriate in all the circumstances of the case. It is not consistent with that duty to permit a manifestly inadequate sentence to stand. Again, the earlier decisions of the Court of Appeal to the contrary are wrong and are not to be followed or applied.”
61The courts in this State are still adapting to that pronouncement of the High Court. It is, however, as was said in Stalio, necessary to take into account the appropriate range of sentencing that would have occurred at the time of this offending. Given the seriousness of the crime, I have no doubt that Mr McKenzie would have been given jail, had he been taken to court not now but some 37 years ago. Perhaps what can be said is that he would not have had a sentence imposed as high as would currently be imposed.
62As I have already stated, the issue as to the delay and period of time has to be balanced against the factors relevant to a sexual offence, and in particular, where these offences have been hidden over all that time, and, of course, only came to light because the victim revealed it in 2007.
63Apparently, as I was told, the victim did in fact report it to her mother when she was aged twenty-one, but this factor was not known to Mr McKenzie and the matter was taken no further, apparently at the wish of her father. Indeed, it was the death of her father that prompted this crime to be reported.
64I also take into account the rehabilitation effected by Mr McKenzie, despite his obvious mental tendencies, and the fact that they have been kept under control for such a long time.
65Balancing of all those factors is very difficult. However, in particular, I take into account that this is a most serious crime committed upon a young girl in a breach of trust situation.
66Unfortunately, Mr McKenzie, I have come to the conclusion that the principles of general deterrence, punishment and denunciation for this crime are such that, albeit balanced with the very strong favourable factors put forward by your counsel, it would be an inappropriate sentence for you to receive a jail sentence which was fully suspended.
67The principles set out in Stalio as to the sentencing in these cases, and the fundamental principles set out in R v AP [2009] VSCA 249 when sentencing an aged person, I do take into account.
68Yes, if you would stand please.
69Mr McKenzie, you will be convicted of this offence of carnal knowledge of a girl between the age of ten and sixteen. You will be sentenced to a period of imprisonment of three years. The minimum period that you must serve before being eligible for parole is 18 months.
70I am asked by the Parliament to indicate to you what the sentence would have been had you not pleaded guilty. Anyone who has just listened to the sentence will realise that the plea of guilty is simply one factor that I have had to take into account in your case.
71However, doing as best I can to comply with the requirement of Parliament, had you not pleaded guilty, the sentence I would have imposed is not three years with a minimum of eighteen months to serve, but a sentence of four years with a minimum of two-and-a-half years to serve. Hence the effect of the plea of guilty is to give you the lesser sentence, in the circumstances, of three years with a minimum of 18 months.
72As I said, I understand the risks to Mr McKenzie when he is in jail. It is to be attached to the Order that goes with Mr McKenzie today, the medical report from Ms Lechner, and a note of the concern the Court would have that Mr McKenzie is, for the first time, being sentenced, and being sentenced at a late age.
73Do I need to say anything else to either counsel?
74COUNSEL: No Your Honour.
75HIS HONOUR: Yes, well Mr McKenzie can be taken away, thank you officers. But it will be necessary for you to both note and convey the sentencing notes that there is a grave concern about Mr McKenzie and his health, and I will put those on the records. Yes, good luck Mr McKenzie.
76OFFENDER: Thank you.
77HIS HONOUR: I will stand down while we get ready for the next matter. Ms McKenna, with luck there will be a copy of this sentence available before I leave on Friday, it just depends on the hardworking reporters.
78MS McKENZIE: Yes, thank you.
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