Director of Public Prosecutions v McKenzie

[2018] VCC 120

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01521
CR-17-01519

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MCKENZIE

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	8, 9, 10, 11 and 15 August 2017
DATE OF MENTION:	16 August 2017
DATE OF PLEA HEARING:	17 August 2017; 2 February 2018
DATE OF SENTENCE:	15 February 2018
CASE MAY BE CITED AS:	DPP v McKenzie
MEDIUM NEUTRAL CITATION:	[2018] VCC 120

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Sexual penetration of a child under 16; course of conduct; indecent act in presence of a child under 16; trusted by parents

Legislation Cited:                   Sentencing Act 1991 s.5(2F)(a), (b); s.6D, 6E, 6F; s. 6AAA

Cases Cited:Poursanidis v DPP (2016) 50 VR 681; R H McL v The Queen [2000] HCA 46; DPP v Hopson (a Pseudonym) [2016] VSCA 303.

Sentence:TES 6 years, 3 months with a non-parole period of 3 years, 6 months (due to order of sentences, effective NP: 3 years, 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M. Page	Chris McLennan & Associates

Pages 1 - 31

 

 

HER HONOUR: 

1David McKenzie, you have been found guilty by a jury of a charge of taking part in sexual penetration with a child under 16 as a course of conduct.  You have also pleaded guilty to three charges of indecent act with or in the presence of a child under 16.  

2The maximum penalty for each of these charges is ten years' imprisonment. 

3You have also admitted to a criminal history. However, your prior offending, all in Tasmania, and ceasing more than 22 years ago, was of a very different and much less serious nature, and I do not consider it relevant to the matters for which I am to sentence to you.

4In order to decide your sentence, I must consider the circumstances and assess the seriousness of your offending. 

5On both indictments, the charges are of sexual offences against boys.  Although their names have been used in documentation and during court hearings, I shall not name them today nor their family members nor use identifying information in these reasons for sentence.  That is not out of any disrespect for them or their families but to preserve their anonymity on publication of this sentence.

6In relation to the charges on both indictments, the setting for the offending was that over many years, you used to visit and stay with one of your sisters and her family who live in Bendigo and, over the years, you had become friendly with some of their friends and neighbours.

7The first of this offending, in time, occurred between October 1996 and September 1999, when you would have between 27 and 30.  During that period, you used to visit and babysit at times for a family who were neighbours and friends of your sister’s family. 

8That family had five young children, the eldest a boy who during that period was aged between seven and ten.  On some occasions when you babysat, or even when their parents were home, the boy was separated from his younger sisters.  This occurred sometimes when they were put to bed earlier than the boy, and he recalls an occasion when you first showed him a pornographic video on the TV in the lounge room, and he was surprised that an adult would let him watch it. On another occasion, when he had a friend of about his age over, you put on a pornographic movie when both boys were in the lounge room and while it was being shown, you discussed with them some matters about men getting erections and that it was normal watching such movies. This incident is the basis for both Charges 1 and 2 on the indictment to which you have pleaded guilty.  It is the basis for Charge 2 of indecent act with or in the presence of the boy's friend.  It is also the basis for Charge 1 of indecent act with or in the presence of the boy at whose home this occurred, but Charge 1 is a representative charge representative of one other occasion, being the one he recalls of you first showing him a pornographic movie.

9Also during that period, there were occasions when you would leave the young girls in the lounge room watching TV and would take the boy to his bedroom.  The girls were aware of this occurring but did not realise at the time why this occurred.

10On one such occasion, you required the boy to rub a soft toy around your penis and testicles causing you to get an erection and then you made the boy kiss your stomach while you masturbated to ejaculation. This conduct is the basis of Charge 3 of indecent act with or in the presence of the boy.  This is a representative charge representative of several further incidents of you having the boy touch your penis or kiss your stomach, with the intention of you achieving an erection, on occasion saying to him "Come on" and "Make an effort".

11In September 1999 this family moved house.  Soon after moving, the boy told his mother what you had been doing with him and although the matter was reported to police, it was not taken further at that time. 

12It was investigated further in 2016.  I infer that that occurred after the allegations the subject of the other indictment were made to police.

13Any sexual offending against children is regarded by the community as serious, as it violates their innocence, and protection of children is fundamental to a community's standards and future.  In this case, there is no doubt that your conduct amounted to a serious breach of the trust and friendship of the boy's family as a whole. 

14I have read victim impact statements from this boy and his mother.  As neither wished those statements read aloud in court, I shall not repeat any details of their contents; I accept that the consequences to his parents of finding out what had occurred, and having their trust betrayed, was significant in a number of ways, and that there were further consequences as the younger siblings discovered what had occurred. The boy himself, now in his late 20s, describes significant impact on him and his emotional state through adolescence and beyond. He realises now that he was not in any way at fault, it is clear that he still thinks about what you did to him.

15The maximum penalty of ten years' imprisonment is relevant to the objective seriousness of offending of this type, but as it covers a wide range of conduct, I have to assess how serious these instances were.  There was no violence involved, no physical injury of any type, and no apparent intention to humiliate or demean the child or either child involved, but I do infer that the object was ultimately sexual pleasure for you.

16The conduct under Charges 1 and 2 is to be condemned as entirely inappropriate with children, and these were boys not yet aged ten and approximately 20 years younger than you. Nevertheless, I regard this conduct as at a low level of seriousness for this offence. 

17Had Charge 2 been brought in isolation - that is had there been only the charge of showing a pornographic movie to the visiting boy and talking of some sexual matters, on a single occasion, with no other relevant offending before or since, no evidence of detrimental impact to that boy as there is no victim impact statement from him, and it being an event that occurred some 18 or more years ago to which you have now pleaded guilty, I would not have considered imposing a term of imprisonment. However it was not isolated in that it also involved another boy, namely the boy the subject of Charges 1 and 3, and your conduct with that other boy went further.  I must impose a separate and appropriate sentence on Charge 2, I accept the prosecution's submission that a good behaviour bond would not be sufficient. As no other sentence short of imprisonment is a practical option in this case, I shall impose what I regard as a nominal term of imprisonment which will not add to the overall time you must serve in prison.

18The conduct under Charge 1, although a representative charge, would also have probably not attracted a sentence of imprisonment if it had been the only charge, as again, although repeated, it is in my view at a low level of objective seriousness.  In saying that, I take into account that the considerable impact described by this complainant does not differentiate between this behaviour and the overall conduct against him, and nor would I expect it to.

19The timing of this conduct, that is under Charge 1, in relation to that under Charge 3, is not known, but I have inferred that the conduct under Charge 1 probably preceded the conduct under Charge 3 although it was not limited in the same way that it was with the other boy. 

20The conduct the subject of Charge 3 is more serious than that under Charges 1 and 2, and as it is a representative charge of several occasions, cannot be viewed as an isolated impulsive act by you, nor one which you instantly regretted.  As I have said, it had considerable impact on the boy through his youth, and on his family, and is still in all of their minds. I infer from the fact that this boy told his mother soon after they moved house that it was troubling him at the time, and also that he had not felt able to tell of it before permanently leaving the house where it had occurred. Nevertheless, that conduct also, in my view, is not at the high end or even high to mid-range end of prospective seriousness for this charge, as there was no use of force, no physical injury inflicted, and no particularly demeaning or humiliating aspect to it.

21In relation to these three charges, I take into account that you pleaded guilty to them.  Although you had denied the allegations when questioned by police in April 2016, and you did not formally plead guilty until the trial was due to start last August in Bendigo, there had been a larger number of charges which were not pursued, or were dealt with by the representative charges.

22You are entitled to some leniency as your plea of guilty saved the time and cost of a trial on these charges, and saved not only the boy himself, but his whole family, from having to face the stress of a trial and give evidence before a jury. By your plea of guilty, you have also accepted responsibility for this conduct.  It is unclear to me whether you genuinely did not recall these events, but I give you credit for accepting the versions which have been agreed through the prosecution opening and by accepting responsibility for your conduct. 

23I turn next to the charge on which you were found guilty after a trial in August last year.  That relates to your conduct in relation to a different boy, between 1 January 2011 and 30 November 2012, which was a period more than 12 years after the other offending.  That charge was of taking part in acts of sexual penetration with a child under 16 as a course of conduct. 

24The form of that charge being as a course of conduct, has complicating implications for me to consider in deciding your sentence, and that will take some explanation now.

25To have found you guilty on that charge, the jury must have been satisfied beyond reasonable doubt that, on more than one occasion, one or more acts of sexual penetration occurred, and that those acts amounted to a course of conduct. 

26Under s.5(2F)(a) of the Sentencing Act, as sentencing judge I must impose a sentence that reflects the totality of the offending that constitutes the course of conduct. To do that, I must make findings of fact to determine the course of conduct by reference to which you will be sentenced - see note to s.5(2F)(a).

27Secondly, under s.5(2F)(b), I must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.  In relation to this requirement, it has been held that this "form of offending should be governed by orthodox sentencing principles” and “the maximum remains a yardstick by which the gravity of the offending is to be assessed" - see Weinberg JA in Poursanidis v DPP.[1]

[1] (2016) 50 VR 681 at [11].

28In this case, there is a single charge for which the maximum penalty is 10 years' imprisonment. 

29I turn then to consider the totality of your offending that constitutes this charge.  The offending was committed against a boy then aged 12 to 13.  He lived in the same street as your sister’s family in Bendigo.  He lived in the home of a woman who had cared for him in the role of a mother since he was about the age of six.  So as not to identify this boy, I shall not use her name but refer to her as his “mother”. His father was living there for part of the time, but was also absent for significant periods.  Through your visits to your sister’s home over many years, you had become friendly with this woman, that is the boy's mother; indeed, even before the boy came to live with her.  You would visit the house often while you were in Bendigo, assisting at times with tasks there, and also at times accompanying her out such as to the local “pokies” or just for company between the two of you. She had been widowed some years before you met her, and came to regard you as a kind man and a good friend.  Once the boy and his father had moved to live with her, you still visited that house often when you were in Bendigo, and quite often you would mind or babysit this boy.

30In his evidence, the boy described recalling three occasions during the specified period when he was aged 12 or 13, when you performed acts of sexual penetration with him.  Without repeating the full details explored during the trial, the first of those occasions included a description of you penetrating him anally and orally with your penis. The second occasion was described as involving mutual oral penetration, and a third occasion was described as you making him anally penetrate you with his penis, and in order for that to occur, also an act of oral penetration.

31The boy said that you “raped” him lots of times - he said things as he described had occurred “many times”.  He said it could be once or even three times a week.  Any such conduct was only when you were alone with him.  His mother said that you were not often left alone with him. 

32In a record of interview with police in April 2016, you denied each of the alleged acts of sexual penetration, as well as other acts of a sexual nature from kissing to cuddling and masturbation.  You did agree that at times you looked after this boy, sometimes for a couple of hours at a time, and a couple of times it was for a weekend.  You also said that this boy wanted to stay with you whenever his parents went away. 

33As you denied any of this conduct, I must make findings as to the totality of the offending consistent with the jury's verdict. Insofar as these are findings against you, I must be satisfied of such facts beyond reasonable doubt.  I base these findings on the evidence that I heard and saw during the trial. Mr Cordy for the prosecution submitted that the findings I must make are a qualitative assessment, but that I do not need to find specific acts or occasions - that being consistent with what is required for the actual finding by the jury of acts amounting to a course of conduct. Mr Cordy referred me to some sentences by other judges of this court and their approach to this task, in the relatively few cases where such course of conduct charges for sexual offending have been dealt with after a trial.  I note that the actual sentences in some of those cases were not put as comparable, as some were for charges of incest for which the maximum penalty is much higher - that is 25 and not ten years' imprisonment - and also some of those had other more serious circumstances or were for much more protracted periods.

34Your counsel, Mr Page, submitted that I need to make some findings as to the regularity of acts of penetration that constitute the course of conduct, which finding I would need to reach beyond reasonable doubt.

35To decide the totality of the offending which was included in the course of the conduct, as the charge was one of sexual penetration, I do not include any acts which might have been other offences such as indecent acts and which are described as occurring with or in conjunction with the acts of sexual penetration on the occasions described. 

36Taking the jury's verdict as acceptance of the complainant's evidence that on at least two occasions acts of sexual penetration did occur, I find that during the alleged period of about 23 months, there were multiple occasions on which acts of sexual penetration occurred. I am satisfied that were multiple acts of mutual oral/penile penetration.  I am satisfied that there was on an occasion described as the first occasion an act of anal penetration by you of boy that caused him discomfort. I am not satisfied that that particular act occurred again.  I am not satisfied, as I would need to be beyond reasonable doubt, that an act of anal penetration by him of you occurred as he described in the third occasion. 

37I cannot make a finding as to the actual number of times such offending occurred, nor of the exact period over which it lasted.  The frequency could not have been as great as suggested by the description of being up to three times a week, as there were not only protracted periods of months at a time when you were not in Bendigo, but also the occasions when you would have been alone with opportunity to engage in these acts unseen by anyone else, would not have been as regular as three times a week.

38As you were not staying in Bendigo all of the time and in fact lived and worked in Ouyen, including a period when you were a carer for an elderly couple which included at least during February 2011, I find that there were substantial periods when the offending could not have been occurring as you were not in Bendigo.

39Further, when the complainant talked of things happening once or even three times a week, I am not satisfied that he was talking necessarily about conduct

that always included acts of sexual penetration, as opposed to other sexual conduct, including various acts described from kissing and cuddling to indecent touching.

40Nevertheless, the totality of offending which I find constitutes this charge, included multiple acts of sexual penetration during a protracted period of approximately 23 months, which you committed against a boy aged 12 to 13, more than 29 years younger than you, and in circumstances when you had the opportunity because you were left alone with him.

41These acts were a serious betrayal of the friendship and trust of both him and his de facto mother, and to an extent also of course his father.  As you were friends with this lady before he came to live with her, I do not find that your friendship was initiated for or based on predatory intent against this boy. Indeed I infer from what I have been told of your life history, and your sister and her family's description of you, and even of the evidence of the complainant himself and his mother, that you were seeking such friendships as you made with families in that street, and genuinely wanted to assist, and share the company of, this boy's mother and the boy himself.

42However, you did abuse their trust to obtain opportunities to be alone with this boy, to further your own sexual pleasure, and your conduct against him has to attract a sentence that reflects condemnation and denunciation. 

43As you deny this conduct, there is no explanation of it.  It is not clear whether you genuinely do not remember it, nor whether long term alcohol abuse and some history of blacking out or developmental learning disability tending to fragment your thinking, might have had some role in reducing your ability to remember such conduct. There is, in the end, insufficient evidence to support any such finding.  That also makes more difficult an assessment of the risk of you ever repeating such conduct.

44I have taken into account the Victim Impact Statements from both this boy and his mother.  I also had opportunity to observe each of them give evidence during the trial.  I have no doubt that the lady who I am calling his mother, felt deeply shocked and betrayed on discovering what you had done to the boy who was under her care, and that you had done this in circumstances where she had trusted you by leaving him with you. I accept that she has been suffering considerable emotional impact ever since, and feels an ongoing sadness which impacts her daily living. 

45The Victim Impact Statement of the complainant himself describes his loss of confidence in himself, having trust issues with adult males who come into his life, and experiencing stress and anxiety from what happened to him. He describes the stress it has caused to his mother and even perceives it as affecting her more than him in some ways. 

46I have accepted and taken into account that there has been serious emotional impact on both this boy and his mother, as a consequence of your offending under this charge. 

47For standing trial on this charge you do not receive any harsher sentence, but you do not receive the leniency that would have been attracted by a plea of guilty and the avoidance of a trial.

48I turn now to your personal circumstances.  You are now aged 48.  You were born in Tasmania, the third youngest of 11 children of your parents.  Your mother, who was of indigenous background, was the home-maker, and your father of Anglo-Saxon descent, was apparently a violent alcoholic who used harsh physical punishment on you.  I am told that your father was brutally violent towards all of the five boys in the family, and as each of the older ones became capable of resisting, he moved to the next youngest.

49I infer that in a family of 11 children, your mother had relatively little time to devote entirely to you.  I have been told and accept that in fact one of your older sisters, the sister with whom you often stayed in Bendigo, took on a role of mother-like influence and figure for you.

50You left school aged 15, but had been regularly truant over many years and had poor interaction with other students and teachers.  When you have been interviewed for some psychological reports you acknowledged that you fought with other children, but I infer that there were serious social and family issues which contributed to undermining your chances of a normal schooling.

51You left school essentially functionally illiterate, that is, being unable to read and write, and despite some attempts subsequently you have never managed to obtain those basic educational skills.

52I am told that by your mid-teens you had also taken to alcohol abuse, and that continued until about two to three years ago, when apparently you managed despite some earlier failed attempts to simply cease alcohol consumption.  I am sure that it took considerable willpower to achieve this, and it is to be hoped that you have the strength to carry on in that manner after you are released from prison.

53I am told that you left Tasmania when aged 16 or 17 to live with your older sister who, as I have said, is the one who lives in Bendigo, and has always been a maternal figure to you and the person to whom you would turn for support and comfort. She, in a written reference, describes you as a wonderful, caring, loving brother who looked after her from your abusive father.  She says that in this way you have always stuck side by side, she says that you have always been big hearted and put everyone else's needs before yourself. She did not know of these charges against you as you had not told her and it was only when your counsel contacted her after the trial that she and her family learnt of these charges, and by then of your conviction. She and her husband attended court for your plea hearing, and they and two older children provided written references expressing their shock as well as their views on what a lovable, caring person you have been to them.

54I am told that at age 18 you moved back to Tasmania and lived on the streets for a couple of years.  During that time you formed a relationship with a woman who had your child, although you did not know that until later. Tragically, that child died at about age two.  I am told that this loss has been deeply buried by you with no opportunity for counselling, and that you don't normally speak of it, but your sister told your counsel of it.  You have, I am told, formed no romantic relationships since then.

55I have inferred that the descriptions of you being good with children and the manner in which the families in your sister's street trusted you to look after young children is likely to have some connection with your loss of your own child and wish to interact with children.

56With minimal education, and effectively illiterate through adult life, your occupational possibilities have been limited, but you seem to have moved around Australia finding some work most of the time.  You have lived on the streets at times. I am told that throughout your life you have had a deep connection with nature and that where possible you have worked at jobs related to nature, such as gardening, tree surgery and the like.

57I am told you tried to return to some schooling to gain training in that horticultural field, but could not engage well enough with studies to continue with that.

58The longest employment you had was working in gardens - parks and gardens - for a municipal council, until you lost your driver's licence.  That was in Ouyen.  You have worked at times at seasonal fruit picking, which has also involved you being outdoors and working with trees.

59After your mother's death in 2009 you found work as a carer for an elderly couple in Ouyen, doing odd jobs, cooking and shopping for them, as well as performing work locally as a handyman and gardener in the area. It was in about February 2011 that you came in one day to find that the man had committed suicide by shooting himself.  You spoke of the shock of this incident and your discovery of it, in your record of interview with police when trying to recall where you were during 2011. You stated that you remained in Ouyen for a while afterwards assisting the widow of that man who subsequently moved into a nursing home. The discovery of anyone to whom you were close in those circumstances would have been traumatic at the time, and as the event inevitably brought your arrangement with that couple to an end, it also had a significant impact on your life.

60Through your various jobs in the Ouyen area, you had apparently managed to save a deposit to buy a modest home there.  However, loss of employment led to your being unable to meet mortgage payments, and at some stage during 2012 the bank repossessed the property.  You returned to stay with your sister and her family after that, in about November 2012, and then in late 2012 you moved back to live in Tasmania.  You settled in Devonport where one of your brothers, with whom you are close, lived.

61I am told that over the period since you were charged with this offending, you have continued to live in a set of units in Devonport where your brother also lives, and you have been doing jobs assisting others such as shopping, cooking and cleaning. I am told that you even won a good neighbour award in your set of units.

62You have been on a disability pension due to a back condition since about the time that you were charged in 2016. 

63Since then, whilst on bail, you travelled from Tasmania to Bendigo each time you were required, namely, for a committal hearing, a trial that was to commence and did commence in December 2016 but had to be adjourned after the discharge of two juries. There was then another trial date in the May circuit, for which you travelled to Bendigo, but it did not proceed, and then again for the August circuit in which your cases were reached. On each such occasion you have had to use scarce funds to come to Victoria, and I understand that both in December 2016 and in August last year you had no ability to pay for accommodation yourself. Although the court was told that some temporary accommodation was arranged, you apparently at least for part of the time during the trial before me, slept rough.

64As you had not told your sister of these charges, she did not know you were even in Bendigo let alone facing trial on each of these occasions.  I am told that you also had not told the brother in Devonport, so that you had no moral support from any of your family, and had to face the stress of these charges and coming to court alone.

65Having discovered what has occurred, and despite the shock at you having been found guilty of committing these offences, there is now the moral support of these family members, although they live a long way from where you are likely to be serving a term of imprisonment, and as your sister and her husband also cannot read or write, communications will necessarily be limited.

66I am told that there have been a succession of sad events in your life to some of which I have already referred.  In particular, to the loss of a young child.

67I am also told that despite your father's violence towards you and your brothers, you nevertheless took his death very hard when he died in 1986.  Your mother apparently died in 2009, and again you took that loss very hard.  Two of your siblings have also died, and although you have relationships with many of the others, some of them are living in other states ranging from Queensland to Victoria and Tasmania.  You have been closest, apparently, to your sister in Bendigo and the brother in Devonport.

68After a plea hearing held in Bendigo last August, and while I was considering your sentence, I decided to request a psychological assessment of you to further elaborate on some of the matters which I have already been outlining about you, and to assess what impact they may have had on your offending, or might have in the future.

69The initial report provided through Forensicare, by psychologist Dr Simon Vincenzi, concluded that you meet criteria for a diagnosis of major depressive disorder, albeit at a mild level, as you have a long-standing history of low mood, feelings of worthlessness, hopelessness and a loss of interest or motivation. He noted that you also reported trauma-like symptoms in the past.  He did not consider that any of those related to your offending, but said that you could receive treatment in custody to target your mental health symptoms. He also considered that if you could engage well with offence specific treatment you may be able to reduce your risk of re-offending.  He did apply what is called a “static assessment” tool to the risk of re-offending, which he found high, but I note the limitations of that methodology and do not myself conclude that there is as high a risk as that tool produced. He recommended that if you receive a custodial sentence you be assessed and monitored by prison mental health services such as Forensicare's mobile team.

70Dr Vincenzi’s report, however, failed to deal with my specific request for an intellectual capacity assessment.  When asked to follow up to do such a report, he declined, as he thought it would require a full neuropsychological assessment.  His comments that he was prepared to make were based on his original report and involved no further communication with you.

71Ultimately, funding was obtained on the recommendation of your counsel, for a neuropsychological assessment. In a report dated 21 January 2018, Dr Linda Borg has addressed the issues of most relevance to your sentencing, and I accept her report as outlining carefully and sensibly these issues. She had spent almost three hours with you in Ararat at the Hopkins Correctional Centre, where you completed formal interview and psychometric testing with her. She took a comprehensive history of your background and administered neuropsychological tests.  She comments at length on aspects of your intellectual capacity which I shall not repeat. 

72Dr Borg concludes that you do have a number of deficits, the most significant being compromise in verbal intellectual abilities, especially difficulties with comprehension of verbal instruction and limited vocabulary.  She finds impaired ability to acquire verbal information. She considers that your cognitive deficits relate to developmental learning disability, which is permanent, and are also likely to reflect a mild degree of substance-related brain injury from prolonged alcohol abuse. She concludes that your profile is not in keeping with what is defined as an intellectual disability.

73In light of these reports, it is not suggested that there is evidence that would enable me to find that you suffer from a mental health condition or impairment which caused or contributed to your offending so as to significantly reduce your moral culpability for the offending, nor which would attract a significant reduction in the application of either general or specific deterrence as sentencing factors.

74Although you clearly do not like being in gaol, Dr Borg's report reflects that you seem to have accepted it, and to be resigned to being there for a considerable time. There was no discussion by Dr Borg of Dr Vincenzi's diagnosis of a major depressive order, and whether that would impact on your endurance of a sentence of imprisonment.

75As already outlined, I accept that both physical and emotional abuse in childhood, lack of proper nurturing and basic education, and probably some learning disability, all contributed to your being under-equipped to establish for yourself a full and satisfying adult life, and to you having “wandered in life”, to use your counsel's expression.

76I accept that these undermined your ability to an extent to make sound adult judgments when feeling stressed or depressed (and I use that word in its non-clinical sense).  However, there is no evidence sufficient for me to conclude that your offending arose from any condition which would lower your legal or moral responsibility for it.

77I accept that you are regarded generally as a kind man who wishes to help and assist others.  Indeed, that was clearly the impression of the parents of the boys who trusted you to look after them.  You betrayed that trust and friendship in committing the offences you did.

78It is clear that general sentencing principles of importance in this case include denunciation on behalf of the community, of sexual offending against children, as well as just punishment and general deterrence.  General deterrence means that the sentence should send the message to others tempted to engage in similar conduct that it will attract serious punishment.

79Also of importance in this case is specific deterrence - that is, to deter you from future offending.  Although you had no previous history of sexual offending, the offending  which ultimately came to light involved two periods of sexual misconduct with children some 12 or more years apart.  The later episode was of greater seriousness, and so protection of the community from the risk of you similarly offending in future is of significance.

80I have already said that as there is no explanation from you of the offending, it is more difficult to assess the risk of you re-offending.  There are two factors which give some hope that that risk will be reduced.  In particular, the fact that you have stopped abusing alcohol which has been a very long term problematic aspect of your lifetime, is a most positive sign. There is no evidence to suggest that you were alcohol affected in committing these offences, but there can be no doubt that long term alcoholism must have been a problematic aspect of your lifestyle, and if you can remain abstinent from that on your release from prison, it should improve your ability to take charge of your life and make sound decisions on your own behalf.

81There is also the factor, as has been throughout your life, of the support from your older sister and her family, and also from the brother in Devonport, as they are now well aware of the offending and shocked by it.  Their support of you in the future should be a factor helping guard against it recurring.

82I also note that there are likely to be sex offender programs to which you will be directed whilst in prison, for the purpose of reducing the risk of repetition in the future.

83In this case, on some charges you will fall to be sentenced as a serious sex offender, and on those charges, while not disregarding the sentencing factors I have already outlined, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. It is not suggested that a disproportionate sentence would be necessary to achieve that purpose.

84I turn then to how the provisions of the Sentencing Act that deal with serious sex offenders apply.  Both prosecution and defence agreed that it would be sensible for me to deal first with the three charges that arise from the earlier offending being those on the indictment to which you pleaded guilty.

85Taking that approach, if I impose a sentence of imprisonment on each charge, after the first two charges you will fall to be sentenced on the third as a serious sex offender and, of course on the charge that will subsequently be reached on the other indictment.

86The other consequence of you being sentenced as a serious sex offender on any of these charges, is that the sentences on those charges are to be served cumulatively on each other and on any other uncompleted sentence, unless I direct otherwise. I will be directing some concurrency, that is, I will be directing “otherwise”, but as the offences which attract the higher sentences because of their seriousness are those on which you will be sentenced as a serious sex offender, they will be served largely cumulatively in any event.

87In relation to the offences on the first indictment, Charge 3 will be imposed on you as a serious sex offender.  I do not overlook that the presumption is for cumulation and the principles of totality are to be modified in such cases.[2]  However, the sentence on this charge will be the longest on that indictment, as it is the most serious of those charges. The prosecution conceded that the sentence on Charge 2 could suitably be wholly concurrent with that on Charge 1 despite involving a separate complainant, because the conduct on which it was based was exactly the same as conduct on which Charge 1 was based except in so far as Charge 1 involved a different complainant and was representative of another occasion in respect of that complainant.

[2] R H McL v The Queen [2000] HCA 46; DPP v Hopson (a Pseudonym) [2016] VSCA 303.

88In the end, and not ignoring the presumption for cumulation applying to Charge 3, I have decided that the conduct constituting Charge 1 was linked to the conduct in Charge 3, the latter being an unfortunate and serious progression of it, and I will be ordering total concurrency for Charge 3 with Charges 1 and 2.

89I have moderated the non-parole period to take into account the various personal factors I have already mentioned, [On revision, next remarks deleted after issue raised as to how sentence would affect non-parole period].

90I know those matters are technical Mr McKenzie but I hope they have been and will again be explained to you. 

91Would you stand up now please, Mr McKenzie.

92David McKenzie, on what I will call the first indictment, on each of the charges you are convicted and sentenced as follows:  On Charge 1, one month imprisonment. On Charge 2, 14 days' imprisonment. On Charge 3, 8 months' imprisonment.  I declare that on Charge 3 you are being sentenced as a serious sex offender and direct that that fact be entered in court records.

93I direct that the sentence imposed on Charge 3 be served wholly concurrently with the sentences on the other two charges.  As the sentences imposed on Charges 1 and 2 will be served concurrently by operation of law, the total effective sentence on this Indictment is 8 months' imprisonment.

94I must state for the purposes of s.6AAA of the Sentencing Act what your sentence would have been if you had not pleaded guilty but had been found guilty of the same charges after a trial. This is highly artificial, in particular as two of these are representative charges which would not have been the case had they gone to trial.  Nevertheless, assuming the same charges were proven at trial and all other circumstances were the same, I would have imposed a total effective sentence of 15 months' imprisonment with a non-parole period of nine months.

95I turn now to the other indictment, the trial indictment.  On the charge of sexual penetration of a child under 16 as a course of conduct, you are convicted and sentenced to 6 years' imprisonment. I declare that you are being sentenced as a serious sex offender on this charge and direct that that be entered in court records. 

96I direct that five months of this sentence be served concurrently with the sentences imposed on the other indictment on which you are sentenced this day.

97That will create a total overall sentence of 6 years and three months imprisonment.

98I fix a non-parole period of 3 years and 9 months. [Amended to 3 years and 6 months – see para 125]. 

99The overall effect intended, that you are being sentenced to a total term of 6 years and 3 months' imprisonment, with what I intend to be a non-parole period of 3 years and 9 months before you could be eligible for parole. 

100I declare 184 days of pre-sentence detention reckoned served and direct that that be entered in court records.  It will be deducted administratively. That is very slightly over six months that will count as already having been served. 

101Application was also made for a forensic sample order.  I propose to make that order having regard to the seriousness of the offending and the fact that it was not opposed. I limit that order to one for a scraping from the mouth.  That means that a sample will be taken by rubbing a swab on the inside of your mouth which will be tested for your DNA and your DNA results will be placed on the state's database. I inform you as I must that if you resist the taking of that sample, an authorised officer can use reasonable force to take it, but as it is not intrusive, it is just the rubbing of a swab on the inside of the mouth, force should not be necessary.

102Now, by operation of the Sex Offender Registration Act, you will be registered as a sex offender under that Act.  I propose, unless urged otherwise, to note this on the second indictment, the trial indictment for the charge - for that charge, the reporting, the mandatory reporting period will be for life. 

103That commences on your release from prison and I am sure you will be reminded about your obligations when you are, in fact, coming up to time for release. Today there is paperwork that will be provided to you - my Associate will have that and first show your counsel.  I think it can be shown to the instructor for the prosecution who is physically here.  Mr Cordy is a bit far away to be shown it. It will be then brought to you, and you will be asked to sign to acknowledge that you have received it.

104Now, you can take a seat for the moment, Mr McKenzie, while the paperwork is being prepared.  I do want to hear from counsel if the sentence does not achieve what I have said I thought it did.  I did struggle with some of the structure here, and its complications.

105Normally I would start with a longer sentence and make it a base sentence, and cumulate on it. That is not possible on either indictment because the longer sentence is required by default to be cumulative except for the extent to which I direct concurrency. It is more straightforward on the first indictment now because I have directed total concurrency.  However, so far as cumulation of the sentence on the second indictment, the trial indictment, is concerned, I meant to, in effect, have only three months of the first total effective sentence cumulative on it, but I cannot - it has to be structured in the opposite direction.  I am open to hear from each of you whether it has achieved that and if not, how I can otherwise achieve what I have said I intended. 

106Also I raise with both of you what I have been pondering. That is the non-parole period, whether it commences to run from today, or only in three months' time when the non-concurrent portion of the term for which no non-parole period is able to be imposed, commences?

107I will let each of you have a think about that.  If you would - it is more awkward with this being projected by video link to Mr Cordy but if you would like, I can either leave the court room or if you are both content, it may be time to discontinue the link with those present in Bendigo because I have announced what I intend as the sentences - and have explained my reasons, it is just that technically I have - I did not want to call this matter back on for any further submissions, and to delay the sentence any further, but I think you both should check whether I have achieved what I said I intended to.

108If it is all right, Mr Cordy, have you any problem with my disconnecting from the Bendigo link?

109MR CORDY:  No, I don't have a difficulty with that, Your Honour.

110HER HONOUR:  All right, I think I will say to those in Bendigo there is nothing further that will be said that should concern them.  It is the technical structure of the sentence that is involved from here on.  So we will disconnect that.  All right, I have been told that if I were to do that it would disconnect Mr Cordy also, and we cannot have that, so those present in Bendigo are welcome to leave.  This will be a technical discussion which does not require their presence any further but apparently the link has to remain open.

111Do you want some time with me leaving the Bench either of you? 

112MR PAGE:  If we could just have a few moments maybe?  I'll see if we can reach some sort of agreed position.

113HER HONOUR:  All right.  Do you think there is, does it seem there is a problem?  I saw your reaction Mr Page and I think you do and I was very conscious late last night that there might be.

114MR PAGE:  No, I don't think, I don't think there is a problem in relation to the adding up and getting to the outcome Your Honour wanted.

115HER HONOUR:  Yes.

116MR PAGE:  I haven't ‑ ‑ ‑

117MR CORDY:  I agree with that, Your Honour.  Sorry to interrupt.

118MR PAGE:  Yes, I hadn't turned my mind to, to the order of sentences and when the non-parole period starts.  My instinctive reaction was that the non-parole period would start at the expiration of the three months.  That is my instinctive reaction but I think I would have to have a quick look at s.16.

119MR CORDY:  Can I - I'm sorry, Your Honour.  I am in furious agreement with my learned friend.  Your Honour's arithmetic and the way that the sentence is structured gives the achieved result but I also - my reaction having had - having Your Honour alert us to that potential problem, is that the three months - sorry, the minimum term would commence at the expiration of the three months and I take it that that's not Your Honour's intention.  Your Honour's intention would be to have - looking at the sentence in a global sense, a minimum of three years and nine months and I would have thought if Your Honour is seeking to achieve that, the minimum term would need to be reduced to three years and six months to achieve that.

120HER HONOUR:  I think I said and it probably was rather obtuse the way I said it, just before I imposed sentence, that I had moderated the non-parole period to adjust for what I said was for the sentence on this charge being partly cumulative on the much shorter sentence.

121MR PAGE:  Yes.

122HER HONOUR:  On which a non-parole period would be imposed and I had adjusted it, but I had not deducted the full extent to which I was thinking when - that problem was looming in my mind, and I didn't have an answer to it.  I can leave the Bench for the two of you to discuss that briefly.

123MR CORDY:  Well, I think, that's the Crown's position, Your Honour, and Mr Page may well agree with it.

124MR PAGE:  I do agree with it, Your Honour.

125HER HONOUR:  Yes, well, in that case I will adjust the non-parole period, and reduce it from 3 years and 9 months.  I had already adjusted it somewhat.  I think in fairness to Mr McKenzie I will give him the benefit of that whole three months that is otherwise not subject to that period.  So I will adjust the non-parole period on the charge on the trial indictment, to three years and six months, because I have in mind a total period of 3 years and 9 months before Mr McKenzie could be eligible for parole. 

126Mr McKenzie, that is what I said I was intending, that it be 3 years and 9 months before you could be eligible for parole.  In fact, the 184 days that I have declared reckoned served comes off you have served just fractionally over 6 months of the 3 years and 9 months.  So, the 184 days comes off the total sentence that starts today, and has the effect of coming off the first near three months of the non-parole period.

127I will allow Mr Page to discuss that further with you.  It is very technical and you can see the difficulty I have had.  I don't expect you to immediately understand it except the totalitty is a total sentence of 6 years and 3 months. After 3 years and 9 months total in prison, you will be eligible to apply for parole.  It is up to the Parole Board when and if you are granted parole, but you are already six months effectively into that time. 

128All right, now is there anything else?

129MR CORDY:  There is.

130HER HONOUR:  Yes?

131MR CORDY:  Yes, there is another issue, Your Honour.  Just in relation to the mandatory reporting for the rest of his life, I just draw Your Honour's attention, I am not sure whether it is noted on the paperwork but it should be so the trial charge of course is a Class 1 offence, the three plea charges are all Class 2 offences.

132HER HONOUR:  Yes.

133MR CORDY:  But Charges 1 and 2 on the plea indictment are treated as a single Class 2 offence so for the purposes of the paperwork, there is a Class 1 offence and there are two Class 2 offences.   That achieves a result and I think Your Honour is right.  I think because a course of conduct charge attracts life in any event, but what will happen, if you don't specify the class of the offences on the paperwork, it will probably come back from the Sex Offenders Registration people. 

134HER HONOUR:  I have no confidence that any of these won't come back, I might say. But Mr Cordy, my initial thought was that - are you saying it's not sufficient to just confine the order to flow from the trial indictment charge because as I ‑ ‑ ‑ 

135MR CORDY:  Yes, I am saying that.  I am saying that because there's the other offences are reportable offences and you have to, you have to look at all the offences and indeed, for example, prior convictions, you look at the global picture of all the offences so the paperwork needs to indicate that in respect of the plea indictment there are two Class 2 offences on that indictment.

136HER HONOUR:  But would they lead - on their own they wouldn't lead to reporting for life, as I understand it.

137MR CORDY:  But you don't, you don't divide them up because it is what has happened ever.

138HER HONOUR:  Ever. All right, I see, yes.

139MR CORDY:  So, yes.

140HER HONOUR:  So, once the trial charge is added on top of all of those it is – for life.

141MR CORDY:  It's life, yes, exactly.

142HER HONOUR:  All right, well I hope my Associate has followed that and is able to adjust the paperwork to achieve it.

143All right, it seems that the paperwork for the Sex Offender Registration Act documentation that is given to Mr McKenzie does not specify the charges.

144MR CORDY:  No, that's right.  It's the paperwork that goes internally.

145HER HONOUR:  So, it's on the actual order, I have to create a free form order that indicates that Charges 1 and 2 together form a single ‑ ‑ ‑

146MR CORDY:  Yes, well, all Your Honour needs to indicate in the paperwork that goes to the sex offender registration people is that on balance the net effect is that Mr McKenzie has been convicted of a Class 1 offence and two Class 2 offences.  Because Charges 1 and 2 on the plea indictment form a single Class 2 offence.  So there's only two (indistinct).

147HER HONOUR:  Apparently the computer system, according to my Associate, won't let him do that as such.  Each will come up as a registerable Class 2 offence under the Act.  All three of the charges have to come up as that unless he leaves No.1 out.

148MR CORDY:  Well, I am ‑ ‑ ‑

149HER HONOUR:  I understand what you're saying Mr Cordy.  The computer hasn't learned law and certainly hasn't read the Act on this and many other matters but I think we will have to do a free form matter to explain that here. 

150MR CORDY:  Yes, yes, I think that that's the solution, Your Honour, yes.

151HER HONOUR:  In the meantime, I will have my Associate show you the paperwork for the reporting, Mr Page so you can just check that and my Associate will then ask your client to sign.  Can he sign his signature?

152MR PAGE:  Yes, he can, Your Honour.  May I just go back with him and explain very quickly?

153HER HONOUR:   Yes.

154MR CORDY:  Event is the word Your Honour is looking for, yes.

155HER HONOUR:  Thank you, event.  Is it "registerable" or "reportable" the word?

156MR CORDY:  Either I would have thought.

157HER HONOUR:  All right, registerable.

158MR CORDY:  Registerable, I imagine, yes.

159HER HONOUR:  If I say, "As Charges 1 and 2 constitute a single registerable event, the effect is that Mr McKenzie is convicted on this indictment of two - - -"

160MR CORDY:  Of two Class 2 offences.

161HER HONOUR:  " ‑ ‑ ‑ of two Class 2 offences." 

162MR CORDY:  Yes, and perhaps put in brackets, "events" yes, it might be a way to ‑ ‑ ‑

163HER HONOUR:  Thank you.  If it comes back to me I will know who to blame but I will have to deal with it.

164MR CORDY:  Well, you can blame me, yes.

165HER HONOUR:  Thank you for your assistance on this Mr Cordy.  I find these aspects particularly difficult.

166Can I just ask the instructing solicitor for the prosecution, is there a clean copy of the 464ZF order and I will start again? I think that might have to be, it can be forwarded then to you, Mr Page.  Does your client need to take a copy away with him?  I have explained ‑ ‑ ‑

167MR PAGE:  I will be preparing certain documents to send to Mr McKenzie so I will get my instructor to send it to him.

168HER HONOUR:  I'm sorry, what it is, is because I don't - I cross out the default to a blood sample - the whole lot and I suppose I can put "stet" except for the rest.

169MR PAGE:  Yes.

170HER HONOUR:  That might be the way.   What I hadn't asked, but I assume Mr McKenzie having been in custody for six months that there is no further custody notes required.

171MR PAGE:  There is not, Your Honour.

172HER HONOUR:  I have signed those orders.  I would normally have suggested that Mr McKenzie remain in the courtroom for you to talk to him but we have already held up the following matter for a long time. I apologise to those already in court and will be apologising to Judge Hogan and I will now adjourn the court and Mr McKenzie will be taken downstairs.  I'm sure Mr Page will come and explain further and just talk to you there.  Do you understand?  All right.  Remove Mr McKenzie please.

173(OFFENDER REMOVED)

174We can disconnect the link to Mr Cordy.  I am sorry to keep you overtime also Mr Cordy.

175MR CORDY:  Thank you Your Honour.

176HER HONOUR:  And I will now adjourn the court until tomorrow please.

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