Director of Public Prosecutions v McKenzie, Robert Paul
[2013] VCC 119
•18 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-12-02218
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT PAUL McKENZIE |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2013 | |
DATE OF SENTENCE: | 18 February 2013 | |
CASE MAY BE CITED AS: | DPP v McKenzie, Robert Paul | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 119 | |
REASONS FOR SENTENCE
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Subject: Procure a minor for child pornography – Possession of child pornography
Catchwords: Plea of guilty – Undergoing sentences for child sex offences and child pornography offences – New non-parole period set – Delay – Youth – Borderline Personality Disorder – Insufficient causal connection to offending for application of Verdins principles
Legislation Cited:
Cases Cited:
Sentence: 15 months’ imprisonment with a new non-parole period on all sentences to serve or complete of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. J. Ayres on the plea Ms. B. Bleazby for the sentence | OPP |
| For the Accused | Mr. J. McLoughlin | VLA |
HER HONOUR:
1 Robert McKenzie, you have pleaded guilty to five charges of procuring a minor for child pornography, an offence which has a maximum penalty of ten years’ imprisonment, and to one charge of possession of child pornography, which has a maximum penalty of five years’ imprisonment.
The offences
2 I sentence you on the basis of the opening which was read out by the prosecutor (Exhibit A).
3 Put briefly, in 2009 and 2010, you used Facebook to contact five females aged between 13 and 16 years and requested that each send you naked photographs of herself. One aged 13, and one aged 15 did so. This is the subject of Charges 1 to 5 of procuring a minor for child pornography.
4 When police searched your house in August 2010, between 300-350 images of child pornography were found. These are classified as Category 1, meaning that there is nudity but no sexual activity depicted. This is the subject of Charge 6 of possession of child pornography. A sample of the images is contained in Exhibit C.
Impact on the victims
5 No Victim Impact Statements were provided, and I have no information of any particular impact on any of the females involved. I note however, that of the two females who did send pictures to you, one said she gave in to you pressuring her; the other did not initially remember sending you the pictures, but when it was brought to her attention by police, she thought that it had occurred at a time when she was quite vulnerable.
6 While I accept that your requests for naked pictures were in a period of time where "sexting" was a big thing amongst young people, I am of the view that these young women were not at all happy about your requests, and those two who complied, later regretted it.
7 In respect of both sets of offences, the law exists to protect young women, who under the age of 18 are still children. The law seeks to protect them from their own inclinations to participate in sexual behaviour which they may well later regret, but also to prevent exploitation of them by men such as you. If men did not want to look at these images, there would be no market.
8 I am unable to take into account the impact on any specific person depicted in the images, but I simply note the potential for impact on these children. You have acknowledged this potential harm, according to Dr Cidoni, a forensic psychiatrist who has seen you on two occasions.
Basis for sentencing
9 I sentence you on the following bases:
· For all charges, you are to be sentenced as a serious sexual offender, but I do not intend to impose a sentence greater than is proportionate because of your youth, and because the prosecution do not seek it;
· Next, the images in Charge 6 are at the lowest category of child pornography;
· Next, Charges 1 through to 5 are made more serious because of the number of females involved, the time over which the offending continued, and the fact that the crimes you committed before October 2009 were committed while you were on a Community-based Order for stalking involving five victims;
· Next, your conduct in procuring five females was predatory, persistent and manipulative, and exploited the age and the vulnerability of these young women;
· Next, I am satisfied that you targeted underage females because you thought they were more likely to comply with your requests; and
· The law against involving underage females in sexual activities is designed, as I said earlier, to protect them from the consequences of their own inclinations, as well as protecting them from those who take advantage of such inclinations to involve them in sexual activity, and is a law which reflects the community’s condemnation of men who think they are "fair game".
Factors in mitigation and personal circumstances
10 There are matters to take into account in your favour. The first of these is that you have pleaded guilty. You are entitled to have that taken into account and I do so. Your plea has saved the community the cost of a trial, and the victims from the ordeal of giving evidence. I can tell you that, as a result of your plea, the sentence you will receive is far less than you would have received if you had been found guilty after a trial.
11 Further, your early indication of your intention to plead guilty is another factor I take into account. It shows some remorse for your actions.
12 The next matter in your favour is the delay in bringing this case on. The offending for which I am to sentence you was committed between February 2009 and August 2010. You have been in custody for other offending since September 2010, but were not interviewed for the offences before me until May 2012, and not charged until August 2012, two years after the end of the offending (see the Chronology – Exhibit B). It is now four years since the beginning of the offending for which I am to sentence you.
13 Since the offending, you have been sentenced on two occasions by another judge of this court. On 25 March 2011 you were sentenced by Her Honour Judge Pullen to five and a half years imprisonment with a non-parole period of three years and ten months, with 182 days of pre-sentence detention declared as time already served. On 20 January 2012, you were sentenced by His Honour Judge Montgomery to 12 months’ gaol with a new non-parole period set of two and a half years.
14 You have lost the opportunity of greater concurrency in your sentences by not having these offences before me dealt with on either of those earlier occasions. I was told by the prosecutor the likely reasons for this case not coming on earlier, but the fact remains that there has been a delay which is not your fault, and I take that into account.
15 Next, it is in your favour that you are still a young man, having just turned 24, and were aged 20 to 21 at the time of the offending. My sentence of you must seek to give you as good a chance of rehabilitation as there may be.
16 Turning to your personal circumstances, I have learned about your background from the sentencing remarks of the other judges (Exhibit D), two reports from forensic psychiatrist, Dr Cidoni (Exhibit 1) and a letter from your step-grandmother outlining your history (Exhibit 2).
17 In summary, you had a disrupted and disadvantaged start in life. Your mother entered a relationship with your stepfather when she was pregnant with you from another relationship. After two years, she left your stepfather and took you and a younger brother to Queensland. Apparently she had a heroin addiction and some time later, unable to look after you, she placed you in foster care. There is a difference in the material from your step-grandmother and Dr Cidoni as to the age you went into care (either about three or six years old), but it seems that whatever age you were, you were sexually abused while in care.
18 Your stepfather, whose name you carry, gained custody of you and you returned to live in Victoria. You lived with his mother, your step-grandmother, who describes you as being a disturbed little boy on your return from Queensland, and later you went to live with your stepfather and his new family. You found out at age nine that he was not your natural father.
19 You returned to your mother in Queensland when you were aged 12, but soon came back to live with your stepfather. This apparently also only lasted a short time, but it is not clear to me where you lived after that, other than between the ages of 14 and 18, living with your step-grandmother. You then lived with a step-uncle in Melbourne and for a time you were employed and had a girlfriend. However, she became pregnant and when you moved away together, it did not work out. That relationship ended in December 2009. Your step-grandmother is of the view that the "girl problem" as she describes it, got out of control after this and she said you acted like a 15 year old, when you were in fact 20 years old. Your counsel also referred to this, stating that even now, you appear six to seven years younger than your age.
20 With the background I have outlined, it is not surprising that you began to use alcohol from the extremely early age of 11, and later, used drugs. Before you were imprisoned in September 2010, you were consuming three bottles of spirits a weekend, and eight to ten grams of cannabis and one gram of amphetamines a week.
21 With all the moves when you were a child, your schooling was extremely unstable, and you did not get on well with other children. You went through a "stealing stage", as your step-grandmother describes it, which appears on your criminal record, but there is no information there about a court order, to which she refers in her letter, for you to undergo counselling with a mental health service. However, I do not say that you did not do so as part of a Children’s Court disposition. She also says that around this time, you were diagnosed with Attention Deficit Hyperactivity Disorder.
22 Dr Cidoni saw you in December 2011 before you were sentenced by Judge Montgomery. Dr Cidoni saw you again in January this year for these matters. Having seen you twice over that period of time, he confirms his opinion that you suffer from features of borderline personality disorder which he explains is a disorder which can contribute to impulsive behaviour, and which causes mood and relationship instability, dissociation, self-harm and anger. You reported all of these symptoms to Dr Cidoni in December 2011. Since early 2012, you have been prescribed an anti-psychotic drug, while in custody, and Dr Cidoni believes you have benefited from this.
23 Importantly, Dr Cidoni is of the view that you committed the offences out of a desire for intimacy, and not because you are a paedophile. I accept that opinion. I note that you appear from his second report to now have recognised the wrongfulness of your conduct. You should also recognise that it was never going to gain you an intimate relationship, and given your targets were all under age, was also never going to result in a relationship with a partner of an appropriate age.
24 Your counsel relied on Dr Cidoni’s opinion that your borderline personality disorder has contributed to impulsivity as entitling me to reach a conclusion that this is a mental impairment which is connected to your offending and permits me to apply the principles in a case called Verdins. The prosecutor conceded the existence of the disorder was relevant to your personal circumstances, but submitted that there was not a sufficient connection to your offending, and that I should consider your situation in the same way as the previous sentencing judges. I will return to this later.
25 The final matter I need to take into account in your background is your criminal history, which I have briefly referred to. Between 2004 and 2006, you appeared in the Children’s Court on dishonesty offences which do not have much relevance to these offences other than as background. In 2008, and 2010, you were convicted in Wodonga and Albury on stalking charges. The prosecutor told me that the Wodonga offences were committed in 2007 and involved five female victims aged 16 to 18, for which you received the Community-based Order of 18 months which was in effect from April 2008.
26 I consider both convictions are relevant for today’s sentence, as well as the earlier offending for which Judge Montgomery sentenced you, as it shows a pattern of conduct, and an ongoing problem with how you view young women. Although you apparently have some insight now as to the wrongfulness of your actions, I agree with Dr Cidoni that it is vital that you complete the sex offender program as part of your rehabilitation.
27 I note that you completed Year 11 English while in custody, and have been working in screen printing. These are good signs for your prospects of rehabilitation.
28 You are serving your sentence at Ararat Prison, which means on the one hand that you are mixing with older and more serious sex offenders which is a problem in itself. However, as you are a protection prisoner, that aspect is better dealt with at Ararat, which is less restrictive for you than if you were imprisoned elsewhere. I am told by your counsel that you will probably move to Margoneet Prison to undertake the sex offenders program, which you are willing to complete.
Ancillary orders
29 The prosecution has applied for disposal of the items seized from you in August 2010. As you have not objected and the application is appropriate, I have signed the order.
30 Next, as a result of my sentencing you today, you automatically become a registrable sex offender. However, you are already registered for life as a result of the sentence passed on you by Judge Pullen. In my view, it is not necessary for me to take any further steps.
Submissions
31 The prosecutor submitted that a term of imprisonment within the range of two years five months to two years 11 months was appropriate, which approximates to an additional 12 to 18 months over the current expiry date for your non-parole period, which is July 2014. He also submitted that some cumulation was required to reflect both the different types of offending and the fact that there were five victims directly involved.
32 Your counsel submitted that your current prison sentence should not be lengthened by any significant amount as a result of today’s sentence, and that the prosecution submission effectively meant that, taking all the sentences together from when you were aged 21 and began your time in prison, you would have received a non-parole sentence of about five and a half years. He submitted that this would offend against the principles relating to totality and the sentencing of young offenders.
Findings
33 I make the following findings apart from those to which I have already referred:
· I am not satisfied that there is the necessary causal connection between your borderline personality disorder and the offending such as to reduce your moral culpability, and reduce the need for specific and general deterrence;
· However, your disorder is relevant to your personal circumstances, and together with your disrupted and disadvantaged childhood, provides some explanation for that period of overall offending in 2008 to 2010;
· It is also relevant to how a prison sentence might affect you, and I take that into account, although Dr Cidoni’s opinion was that your mental state has not deteriorated since he saw you in December 2011, despite the lengthy period in custody;
· Your prospects of rehabilitation are guarded, because of your disorder, and your counsel conceded that there is an ongoing risk of you re-offending, but in your favour are the insight that you are developing about your wrongdoing, the vital continuing support you have from your step-grandmother and stepfather, who visits you in Ararat, your willingness to do the sex offender program, the work you have done while in custody, and your youth, which means you are still young enough to learn different, legal, ways of behaving with age-appropriate women;
· Next, specific and general deterrence and denunciation of your persistent conduct remain of importance to this sentence;
· However, because of the principles relating to totality, youth and delay, I will impose a sentence significantly lower than the range put forward by the prosecution, and lower than would have been imposed had I been sentencing you for this conduct alone with the offences the subject of Judge Montgomery’s sentence as true prior convictions, not as a sentence you are currently undergoing.
Sentence
34 On all charges you are convicted, and sentenced as follows:
35 Charge 1 – Procure a minor for child pornography – 9 months’ imprisonment
36 Charge 2 - Procure a minor for child pornography – 7 months’ imprisonment
37 Charge 3 - Procure a minor for child pornography – 9 months’ imprisonment
38 Charge 4 - Procure a minor for child pornography – 7 months’ imprisonment
39 Charge 5 - Procure a minor for child pornography – 7 months’ imprisonment
40 Charge 6 – Possession of child pornography – 7 months’ imprisonment.
41 Charge 3 is the base sentence. I direct that two months of the sentence imposed on Charge 1, and one month of the sentences imposed on Charges 2, 4, 5, and 6, be served cumulatively on the sentence imposed on Charge 3. That makes an effective sentence on these offences of 15 months’ imprisonment.
42 I set a new non-parole period for these offences and the offences for which you were sentenced by Judge Pullen and Judge Montgomery, by directing that you serve a minimum term of two years, starting today, 18 February 2013, before becoming eligible for parole.
43 I declare that on all charges for which I have sentenced you, you are sentenced as a serious sexual offender, and direct that this be noted in the records of the court.
44 You have served no time in custody for the charges for which I have sentenced you. However, I note that the pre-sentence detention declared by Judge Pullen is still to be taken into account.
45 If you had not pleaded guilty, but been found guilty after a trial, the sentence I would have imposed on the offences the subject of today’s sentence alone is three years imprisonment, and I would have set a new non-parole period of three years.
46 Could I check with counsel that I have covered everything, and in particular the new non-parole period makes sense.
47 MS BLEAZBY: It does Your Honour.
48 MR McLOUGHLIN: Yes, yes Your Honour.
49
HER HONOUR: Thank you Ms Bleazby, thank you Mr McLOUGHLIN.
Mr McKenzie do you have any questions?
50 PRISONER: No Your Honour.
51 HER HONOUR: Mr McLOUGHLIN given that we are over the video-link, would you like me to leave the link open briefly while I leave the Bench?
52 MR McLOUGHLIN: I had a chance to speak to Mr McKenzie before Your Honour came in and I will video-link with him tomorrow.
53
HER HONOUR: Yes thank you. Mr McKenzie you will be hearing from
Mr McLOUGHLIN or seeing him on the video-link tomorrow.
54 PRISONER: Right, thank you Your Honour.
55 HER HONOUR: I thank counsel again for their assistance and I will stand down now.
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