R v Mackenzie-Hunter

[2021] NSWDC 740

District Court

New South Wales

Medium Neutral Citation:

R v Mackenzie-Hunter [2021] NSWDC 740

Hearing dates:

11/11/21, 29/11/21

Date of orders:

29/11/21

Decision date:

29 November 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to imprisonment for 2 years 9 months (28/1/21-27/10/23). Pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth) I order that the offender be released after serving 18 months, upon giving security in the sum of $100, without surety, to comply with the following conditions:

(a) To be of good behaviour (which includes not using illicit drugs).

(b) Be subject to the supervision of a Community Corrections officer.

(c) Obey all reasonable directions of Community Corrections.

(d) That you not travel interstate or overseas without permission in writing from a Community Corrections officer.

(e) That you undertake such treatment or rehabilitation programs as reasonable directed by Community Corrections.

I make the Forfeiture Order signed and dated by me today.

Catchwords:

Crime – Sentence – Use carriage service to groom child under 16 years

Legislation Cited:

Commonwealth Criminal Code 1995

Crimes Act 1914

Cases Cited:

Hasan v R [2010] VSCA 352

ZZ v R [2013] NSWCCA 83

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Simon Mackenzie-Hunter - Offender

Representation:

Ms A Hedger for Crown
Ms S Climo for Offender

File Number(s):

21/24897

sentence

1. Mr Simon Mackenzie-Hunter is for sentence in relation to an offence under s 474.27(1) of the Commonwealth Criminal Code 1995, that being an offence of, between 23 November 2020 and 6 January 2021 at Surry Hills he used a carriage service to transmit communication to someone he believed to be under 16 years of age with the intention of making it easier to procure the recipient to engage in sexual activity with himself. The maximum penalty for that Commonwealth offence is 15 years imprisonment and of course the maximum penalty is an important guidepost in the sentencing exercise to which I have had regard. The offender pleaded guilty at the earliest opportunity and, although there is no statutorily specified discount I intend to allow a 25% discount on account of the utilitarian value of the plea of guilty.

FACTS

2. The facts are set out in a statement of agreed facts and are in summary as follows. At the relevant time the offender lived in an apartment in Surry Hills. He was at that time 45 years of age, unemployed and receiving a disability pension. At the relevant time he was a user of a mobile phone service ending in 016 as well as an email account in the name Simon Hunter which was linked to his mobile number and he also, from 24 November became the user of a Skype account in the name of Johnny Thomas which was also linked to his mobile phone number.

3. On 23 November 2020 investigators attached to the Child Exploitation Internet Unit commenced performing covert online duties utilising an assumed online identity referred to in the facts as an “AOI” of a 14 year old female child. The offender, using the identity “Johnny” had placed an advertisement on a classified website known as Chaos Ads, the advertisement being in the following terms.

“Hi I’m a cool guy 40 looking for a girlfriend. I’ve got my own place in Surry Hills Sydney, five minutes away from Central Station. Younger okay. If you’re having a shit time all the time fuck that, pack some shit up, come stay with me, can be your dad and boyfriend all in one. We can chat about it okay”

4. On 23 November 2020 the AOI replied to this advertisement stating that “her” age was 14 years. The offender received an email reply from the AOI and he replied to that message by email providing his own email address and saying “Hope we can chat sometime.” The AOI and the offender communicated briefly via email and during those communications the AOI asked the offender if he had a Skype account. The offender said he did not, but he could get one if she wanted him to and he later replied that he had got Skype now and provided his Skype details as Johnny Thomas together with his mobile phone number which ended in 016.

5. On 24 November 2020 the AOI added the offender’s Johnny Thomas account on Skype and the communication between them moved to the Skype platform. The AOI initiated a Skype chat with the offender via instant messages and the following relevant messages were exchanged:

Offender:   pay day tomorrow I get my centre link pension sometimes I get lonely in my apartment by myself lol

The AOI:   oh that sucks:(

Offender:   Hoping one day a girlfriend can get the carers pension for me l had a bad time before and they reakons I got depression and gave me the pension and a inner city apartment in Surry Hills Sydney said I can have it the rest of my life so I'm just re/axing most of the time it's pretty good really and I can be here all the time with my girl when I get one

The AOI:   ive never had a bf im only 14

Offender:   O ok babes sorry if I spun you out

...   

Offender:   How was school??

The AOl:   its k... i guess for school hahaha

6. After that initial exchange but during the same Skype chat the offender sent the AOI an image depicting his face and said “Hope you are okay with that.” To which the AOI replied “Yeah totes you look nice.” The following messages were later exchanged in that same Skype chat. The facts then set out approximately a dozen or so lines of chat at para 7 of the agreed facts which make reference to the offender’s age and the various things that are discussed between them:

Offender:   Please better not go telling people about me because l could get in trouble because of your age you know

…

Offender:   It's all good I'm cool with it and think you're cool but some people would trip out that I'm a older guy I don't know just be careful because people do trip out about stuff like this and I don't want anything to upset you or embarassed you that's all

The AOI:   i wont i dnt want anyone to get in trouble i dont even kno how old u are lol

Offender:   Good lol heaps older lol

The AOl:   ok

Offender:   I had a really good friend and she was 16 and we would talk all the time but she moved back to the USA and we kinda have lost contact

Offender:   I'm hoping we can be friends hey

The AOl:   yeh totes :)

Offender:   I don't know why but I really loved it being friends with her and since we have stopped talking I was really hanging out for the same kind of friend and then you texted me and you are Aussie and everything which is so cool sorry if I've been going on a bit

…

The AOl:   wot kinda friends were u guys

like bf/gf

Offender:   Yeah

Do you think it's strange??

TheAOI:   nah y?

Offender:   I don't know I thought it was so cool and I wasn't silly about it because I know what people would think some of them and I know I'm so lucky

7. Upon the offender’s request, the AOI sent a picture of herself, that is the purported 14 year old. The following messages were later exchanged. The offender said “I don’t know but feel like I'm going to get us busted lol.” The AOI replied “Lol Y.” Offender replied “I think it’s got to do with my girlfriend that left. I even feel really naughty just telling you but we did some sex things together .

8. The offender then further added “I can tell you one thing if we both promise to keep things our private life.” The offender then asked the AOI, that is the purported 14 year old, to masturbate, telling her to “get under the covers and whip your undies down, get into it babes.” He provided detailed instructions as to how she should masturbate before saying “I'm feeling my dick.” He asked “You want to see it?”, to which the AOI replied “Okay if you wanna.” The offender said “This is for you only” and then sent an image of his erect penis. He said “We are so naughty together babes, I love it” and “I won’t do this all the time okay.”

9. He later asked “You feel good looking at it?” and said “It’s a perfect size for a vigina (sic), fits in perfect.” The AOI said “You probs thing I'm a dumb 14 year old kid hey” to which the offender responded “I think you're beautiful and I want to be able to show you things that make you blossom into a beautiful lady and a supersmart one to (sic).” He asked her if it felt good to masturbate. He later said “Your mum will be home soon, make sure you are how you would normally be okay” and “Love you babes”. The AOI replied “I'm happy talkin to you J” and “I like chattin 2 u, ur rly cool” to which the offender replied “I think the same about you” and “hoping we can chat at least a few times a week.” The AOI replied “Yeah totes probs when mum isn’t round K.”

10. On 25 or 26 November 2020 the AOI sent two messages to the offender on Skype to which he responded with a message about three hours later. On 27 November 2020 the offender sent a message to the AOI on Skype and on 1 December 2020 the AOI initiated another Skype chat with the offender via instant messages. The AOI told the offender that she had had a good day at school and when the AOI asked how the offender’s day had been he stated:

It’s been a bit funny for me the last week but all good now I just don’t have much money until next week now...people around town still think I'm seeing this girl I went out with and I haven’t talked with her in over a month...it was a weird weekend lol.

11. And during this conversation the offender also said:

There's this woman who lives upstairs from me and it was really strange but I don’t know if she is interested in me or what but I could hear her saying stuff about me and made me feel funny and she must have been talking about me because people was saying stuff when I went out. I don’t know it’s strange in the city sometimes like people are talking behind your back.

12. The offender later in this conversation said “I've been thinking about you a few times” and “how I like you and that and about our last chat.” Also he said “As we are chatting now my dick has gone hard” as well as “Did you look again at my pic I sent you?” This was of course a reference to the image that the offender had sent on 24 November 2020. The offender then told the AOI “I wish you would whip your pants off and send me a pic of yours.” He also said “You could try I promise I wouldn’t show anyone we keep this our private life.” To this the AOI replied that she was worried about getting in trouble if her mum found out, to which the offender asked by way of reply “Oh no one knows about us do they?” To this the AOI replied “OMG no way.” The offender then said “Fuck babes lol” and “Scared me” as well as “I thought you might be on your mobile phone or something, I just got worried because I thought we both might get in trouble off your mum.” He also said “Yeah so you all good she won’t find out you reckons.”

13. After the AOI reassured the offender, he then went on to tell her to touch her vagina and went on to give various comments, which are as follows:

Offender:   ...feel it for me

Offender:   It should feel nice

Offender:   When my dick gets hard and I feel it it feels nice

I don't know why but I'm very interested in your pussy lol

The AOl:   what do you mean

Offender:   I would like to put my penis in it

Only dreaming thou

The AOl:   like in real life?

Offender:   Yeah

The AOl:   would it hurt

iv never done anything like that b4

Offender:   No shouldn't hurt should feel really good

The AOl:   would u really want to do that with me

id be heaps nervous

Offender:   Yeah I want to do it but don't think that we could you know

…

Offender:   Only way we could do it would be if you can come to my place or something lol

…

Offender:   There's no way we could get away with that and you have to be at least over 16 for a girl or I could get in big tro

Big trouble if anyone found out

 …

The AOl:   do u want me to go?

Offender:   No

ldon't mind us chatting

The AOl:   oh ok, jst don't want u to think i am a silly 14 yo

Offender:   No babes it's ok

 Just make sure no one reads our shit ok

 …

The AOl:   nuh im heaps careful i delete everything afta we chat

 u wont tell anyone will you?

Offender:   No I won't tell

…

Offender:   I don't know I just feel naughty so you delete it and just keep my user name??

The AOl:   yep

…

Offender:   Mind if I go soon I have to finish my washing

The AOl:   thats ok mum will be home soon

Offender:   Love you babes

 Talk again another time??

The AOl:   okay:)

Offender:   Ok bye honey

14. On 3 December 2020 the AOI initiated another Skype chat with the offender via instant messages during which she reminded him that she would be in year 9 at school the following year. The offender said he would text her later when he arrived home. The AOI said she was going to have a shower anyway and the following messages were then exchanged which made reference to a picture of the AOI getting into the shower:

Offender:   0 ok wow sneak a plc of you for me lol

The AOl:   what do u mean lol

Offender:   A pic of you getting in the shower I'd love to see

Anyway text U later ok

The AOl:   ahhaha u r silly

The AOl:   i told you i didnt have those pics

Offender:   Wish you would do one for me

 Doesn't matter

 I'll text you later see if you are there when I get home ok

The AOl:   okay:)

Offender:   I'm back home lol

The AOl:   cool

one sec jus gettin dressed

…

Offender:   What clothes did you put on??

The AOI:   Just my pjs

Offender:   O sexy

 No undies??

The AOl:   omg lol

of course

Offender:   Cool

The AOl:   :)

Offender:   

The AOl:   I am glad i got u 2 talk to otherwise id be heaps bored

15. The offender later sent a photo depicting his face in return for a “normal” photo of the AOI which I assume is a reference to a normal photograph of the assumed 14 year old. The offender told her that “My dick has gone hard” and “does that when I'm with you sometimes.” The AOI later reminded the offender during this communication that she was 14 years old. The two then chatted about television and Netflix and there then was an exchange of messages between them as follows:

Offender:   Do you live like in town in Parramatta or a bit out of town

The AOl:   westmead

but no 1 ever knows were that is lol

Offender:   I know where it is you have like the children hospital there hey

The AOl:   yeh

Offender:   I kinda remember it

Been ages since I went there

The AOl:   :(

…

Offender:   Do you know Surry Hills babes

The AOl:   not rly

Offender:   See same thing lol

The AOl:   hehehe

…

Offender:   You close to the train station??

The AOl:   yeh kinda

can walk there

Offender:   I'm just down the road from central station lol

 I go around by train everywhere

…

The AOl:   do you go out much

Offender:   No not really used to but not atm [at the moment]

The AOl:   oh ok

Offender:   It's been getting to me the last couple of weeks actually and it's

 been great to hear from you hey

The AOl:   yay!

Offender:   You saved me

The AOl:   i like our chats

ur the best

Offender:   Awww thanks babes

 Better go now hey

The AOl:   awwww ok

Offender:   Well you know we don't wont to get busted lol

Mum home soon hey

The AOl:   my mum is workin late 2nite

Offender:   O ok no worries then

How about we have a break for ten 15 minutes is that ok

16. On 8 December 2020 the AOI sent a message to the offender on Skype and on 10 December 2020 the AOI initiated another Skype chat with the offender via instant messages. During this chat the offender said that he “stayed up all last night and starting to feel a bit worn out lol” to which the AOI replied “Oh how cum?” To this the offender replied “Babes why you thinking of cum sexy girl you are yeah.” The offender then sent a video depicting him stroking his erect penis. The offender’s face was visible at the start of the video. He also sent the following messages. “You like it babes” as well as “You made me so horny saying cum sorry babes” as well as “I want you to one day gently hold it and suck on the end of it”, “don’t know why I sent that I'm naughty hey.” He also asked “You don’t hate me do you for doing it” to which the AOI replied “No way”, “why should I” to which the offender replied “I'm starting to trust in you that you are so good too and we’ll keep this our private life.”

17. The AOI said “I like how you don’t treat me like a dumb 14 year old” to which the offender replied “I worries just then I might get busted lol no I would never treat you like that I'm your friend” and “because of your age I think I can get in trouble for that.” The AOI replied “I won’t tell anyone” and “I don’t want u t get in trouble.” The offender replied “Love you ” and “ur the best friend to me.” During this communication a number of other messages were exchanged as follows:

Offender:   You want to get in the nude babes and relax it would feel nice don't worry just hoping / can chat with you when it's holidays that's all

The AOl:   like u mean right now?

Offender:   Yeah now lol

The AOl:   ahmmmmmmmm K

Offender:   Good girl

Offender:   Your awesome babes relax and enjoy it being nude

 I like being in the nude sometimes I'm high up only on the third floor but no ane can see in even with the curtain open

 You like it don't you naughty

The AOl:   yeah itsak

Offender:   Cool! love it you can try things

The AOl:   yeah I trust you

Offender:   Thanks I would never do anything wrong with you I promise

 Do you want to do something

18. After that communication or towards the end of that communication the offender then provided detailed instructions for the AOI to masturbate during which he said “My dick is hard I felt it a few times” as well as “Lightly feeling my dick.” He later said “It’s sometimes a bit funny but you are doing the best thing for your body it’s a great time for you to try this you will blossom as a beautiful young woman because your body will kinda turn on now.” The following messages were later exchanged:

Offender:   If you try doing it sometimes you could probably after a while take my dick in there but I'm not saying that's going to happen

The AOl:   wat u mean

is dat sumthin u wanna do irl [in real life]

Offender:    Yeah I want to but I don't wont you to think I'm trying to talk you into it or something

The AOl:   k

…

Offender:   I love you tried it it has left me lost for words lol

…

Offender   Should we get going now

The AOl:   k :(

Talk 2 u 2moz mayb

Offender:   Ok for sure

 I'll always be here for you

The AOl:   ur the best!

Offender:   Just might miss your message sometimes but always here for you

19. On 11 December 2020 the AOI sent a message to the offender on Skype to which the offender replied the following day saying “Don’t know if you will get this message but I'm so sorry I missed you yesterday, hoping we can chat again soon okay.” The AOI sent further Skype messages to the offender on 14 and 21 December 2020 and on 4 January 2021. The offender responded with a message on Skype on 6 January 2021 which was the last communication with the AOI.

20. On 28 January 2021 a search warrant was executed at the offender’s residence during which he was arrested and cautioned. Police seized two mobile phones, Alcatel brand, one from the offender’s possession, another in his bedroom. After being arrested and receiving legal advice, the offender declined to be interviewed. An analysis was conducted of the phone seized from the offender’s possession. On that phone there was found the offender’s email account and a Snapchat account in the name of “Johnny Thomas”. Also found on the phone were two images that had been sent to the AOI on 24 November 2020 depicting the offender’s face and his erect penis as well as the video sent to the AOI on 10 December 2020 depicting the offender’s face and erect penis. The phone also contained the images which the AOI had sent to the offender. Those are the facts on which Mr Mackenzie-Hunter is to be sentenced.

OBJECTIVE SERIOUSNESS

21. It is important of course that I make an assessment of the objective seriousness of the offence. In that regard I make the following comments. Any offence involving seeking out children and young people with the intention of making it easier to procure them to engage in sexual activity is obviously an extremely serious offence. While that is obvious, it is also acknowledged by the maximum penalty of 15 years imprisonment that is specified for the offence under s 474.27(1). However, it is important that I make an assessment of the relative seriousness in an objective sense of the particular offence before the Court.

21. In this regard counsel for the offender accepted the following principles which were set out at para 18 of the Crown’s written submissions as representing factors to be considered in connection with the seriousness of the offending.

1. The number, length and type of communications between the offender and victim.

2. The frequency of conversations and the level of persistence of the offender.

3. The nature of any sexual material communicated.

4. The extent to which the intent to future activity with the offender is exposed and developed.

5. The nature of the sexual activity intended.

6. Whether any inducements were offered including alcohol or money or whether any threats were made.

7. Whether the victim was a real person.

8. Age and power differential between the victim and the offender.

9. Nature of prior relationship between the offender and the victim.

10. The offender’s level of awareness and deliberateness in communicating, and

11. The planning and sophistication involved in the offence including any steps taken by the offender to protect his anonymity.

23. I make the following findings in relation to those matters insofar as they are relevant in this case. Firstly, the offending took place over an extended period of about six weeks between November 2020 and January 2021 although relevant communications occurred on only four days. Secondly, the offending took place against a background in which the offender had sought out contact with a younger person by means of the advertisement he had placed on a classified website which referred to “Younger okay” and “Can be your dad and boyfriend all in one”. Thirdly, there was a significant age difference of about 30 years between the age of the offender and the purported 14 year old. Fourthly, there was a level of persistence in the offender’s communications although I accept that this level of persistence is considerably less than in some cases. Fifthly, the offender on numerous occasions counselled the purported 14 year old to keep the communications private especially from her mother. Sixthly, the offender introduced sexual topics almost from the beginning of the communications when he referred to a purported 16 year old ex-girlfriend saying “I even feel really naughty just telling you but we did some sex thing together.” Immediately after this and after again telling the AOI to keep things private the offender gave detailed instructions as to how to masturbate and said “Get under the covers and whip your undies down, get into it babes”, referred to feeling his “dick” and sent an image of his erect penis. The offender continued the sexual theme about a week later on 1 December 2020 when he again referred to sexual matters and told the purported 14 year old to touch her vagina, referred to his “dick” getting hard and that he was “very interested in your pussy”. During this communication the offender again instructed the AOI to “Make sure no one reads our shit”. Again two days later the offender introduced sexual matters when he asked for a picture of the 14 year old getting into the shower and again saying “My dick has gone hard” and referred to the risk of getting “busted”.

24. Five days later on 8 December the offender again took matters to a sexual topic and sent a video of him masturbating and saying he wanted her one day to “suck on the end of it” after which he again said “Keep this our private life.” During this conversation the offender also sought to develop a relationship of trust by saying “I’ll always be here for you.”

25. It was argued by the Crown that the communications supported a conclusion that the offender contemplated possible direct physical contact with the 14 year old. In his evidence the offender agreed during cross examination that he did think about meeting up for sex later on and agreed that in placing the online advertisement he was looking for someone to come to his home for sexual activity. However, he also said in effect that there was no way he could carry through with any such possibility.

26. Having considered all the evidence I am not satisfied that the offender had any real intention to pursue sexual activity with the 14 year old in person although I do accept that his intention extended to making it easier for possible “online” sexual activity by means of chats, videos, photographs or webcam usage.

27. I note that the offending did not involve any inducements or threats. It is also relevant, as counsel for the offender argued, that the purported age of the 14 year old online identity was towards the upper age range captured by the offence provision.

28. It was further argued for the offender that the offending was unplanned and unsophisticated. While I accept that it was unsophisticated, I consider that there was some albeit limited level of planning by reason of the frequent encouragement to the 14 year old to keep things secret. I assess the objective seriousness as falling below the midrange but above the lower range.

29. It was argued on behalf of the offender that the Court should be satisfied that he did not deliberately seek out contact with a child in his online advertisement. I have considered this argument, however, I am not satisfied on the balance of probabilities that this suggested mitigating factor is made out. While on the other hand I am not satisfied beyond reasonable doubt that the online advertisement was specifically aimed at children, its terms clearly contemplated and perhaps encouraged such contact by its reference to being “your dad and boyfriend all in one” and “younger okay.” However, in my assessment, given the reference in the advertisement to the offender being 40 years old, the advertisement was open to the interpretation that it invited contact from younger girls or women although not necessarily “underage” girls exclusively. As I have said, I am not satisfied that the aggravating factor argued by the Crown is made out but neither am I satisfied that the offence is mitigated by reason of the advertisement not seeking contact from children.

30. It was also argued by the offender that his likely intoxication at the time of the offences should be taken into account in mitigation of his actions. It was argued, firstly, that intoxication was relevant because it indicates that the offending was unplanned and impulsive, and secondly that the offender’s judgment was impaired and his ability to think rationally was significantly reduced. I have considered these arguments but I do not accept them.

31. The cases which discuss when intoxication at the time of offending can be taken into account indicate that the circumstances must be quite exceptional and that the offender has a difficult burden to discharge in establishing that such circumstances are made out: Hasan v R [2010] VSCA 352; ZZ v R [2013] NSWCCA 83. I am not satisfied in this case that the offender has demonstrated any such exceptional circumstances especially in the light of the relatively longstanding nature of his abuse of drugs.

SUBJECTIVE MATTERS

32. Turning then to subjective matters relating to Mr Mackenzie-Hunter and his background. The offender is 46 years of age now. He has a relatively limited criminal history and no prior offences of a sexual kind, or offences involving children. I accept however that evidence of prior good character will usually carry limited weight in sentencing for offences of the kind before the Court. In his evidence on sentence the offender confirmed the history provided to the psychiatrist, Dr Richard Furst, and to psychologist Dr Sally McSwiggan. The offender’s childhood history included an alcoholic father who was regularly physically abusive towards the offender and his mother. The offender’s history includes some prior heterosexual relationships, the most notable being with his former partner, Deborah, with whom he had a daughter born in 1996. Dr Furst notes that in October 2003 the offender’s partner, Deborah, killed her 11 year old daughter (the offender’s stepdaughter at the time), when Deborah was affected by psychotic symptoms. The offender told Dr Furst that he was very badly affected by, and was never the same after the death of his stepdaughter. The offender also has a history of illicit drug use from his late teens and this continued into his late 30s and into his 40s, in part as a means of coping with stress and trauma related issues. He denied any attempts at drug rehabilitation when speaking with Dr McSwiggan.

33. Most significant in terms of subjective factors is the offender’s history of mental health problems. He commenced to experience serious mental illness in his late teens and was diagnosed with schizophrenia at age 20. This included auditory and visual hallucinations and paranoid thoughts. The offender has had numerous psychiatric admissions over the last 26 years totalling as many as 20 and has required constant treatment with various antipsychotic medications.

34. More recently the offender was admitted to St Vincent’s Hospital in December 2019 after suffering a relapse in his schizophrenia which included auditory and visual hallucinations and paranoia. As a result he was placed on a Community Treatment Order after his discharge from St Vincent’s Hospital on 10 January 2020 with that order lapsing towards the end of 2020 about two to three months before his arrest on 28 January 2021.

35. On 8 December 2020 he was reviewed by a psychiatrist at St Vincent’s Hospital who noted that his chronic psychotic symptoms of hallucinations and harassment seemed to be settled, that his mood was good and that he was currently stable on his intramuscular injection medication. Nonetheless on 14 December 2020 the same psychiatrist wrote in support of an NDIS application that the offender had ongoing symptoms which included

“Some paranoia, auditory hallucinations, other delusions, severe fatigue, social withdrawal and isolation, anxiety, reduced insight, occasional suicidal ideation, forgetfulness, poor concentration, disorganisation, disturbed sleep, unstable moods, poor self-care, difficulty in managing independent living, reduced appetite, persistent ruminations, preoccupation with negative life events and inability to distinguish between psychotic symptoms and reality, poor self esteem and impaired judgment.”

36. In summary, while the psychiatrist concluded on 8 December 2020 that the offender’s condition was stable, she confirmed only about a week later on 14 December 2020 that he nonetheless continued to experience a smorgasbord of adverse mental symptoms. These observations were made around the middle of the date range of the offence for which the offender is to be sentenced.

37. So, while he may have been fairly stable on 8 December, I have no doubt that, as the doctor confirmed on 14 December, the offender’s serious and longstanding psychotic condition nonetheless remained with him and continued to interfere in various ways with his day to day activities, behaviour and decision making. However, I am not satisfied that these mental health problems had any direct causal link to the offending. This conclusion is supported in part, as the Crown submitted, by the fact that the offender was able to arrange the online advertisement and then communicate with the AOI in a lucid and calculated way over a number of days. This conclusion is also supported, in my opinion, by the comments of Dr McSwiggan who said that the offender “Denied sexually driven thoughts about seeking out underage females for a relationship have persisted when not intoxicated” and also her note that “he said his specific thoughts about a minor arose in the context of using pornography and drug intoxication.”

38. Dr McSwiggan also said that the offender’s “substance use likely contributed to the offence by driving his sexual arousal on a background of limited judgment and reasoning consistent with cognitive decline associated with chronic psychotic mental illness” and that the offender “showed insight and responsibility for his offence when he admitted he would have offended whether the CTO was in place or not, reflecting his acknowledgement his substance use primarily motivated his sexually driven behaviour.”

39. My conclusion that there is no direct causal link between the offender’s chronic mental illness and the offending is supported also by Dr Furst’s opinion that “The offences alleged before the Court do not appear to have been directly driven by psychotic symptoms such as hallucinations or delusions and he was probably aware that his actions were wrong both in a moral and legal sense.” I am, however, satisfied that the offender’s mental health problems contributed significantly to his increased drug use prior to and during the offending, and in my view it was the offender’s drug abuse, combined with his use of internet based pornography and his social isolation which were the major factors behind the offence.

40. The conclusion that the offending was directly causally linked to the offender’s drug use rather than to his chronic mental illness is given further support by the offender’s criminal history which indicates that over the past 25 years or so during which his schizophrenia was no doubt ongoing, the majority of his offences have been committed in the context of substance, in other words alcohol, abuse.

41. The offender’s chronic mental illness is however relevant in another way in that it has made and will continue to make his time in custody more difficult than it would have been in the absence of such a condition. This is confirmed by the offender’s evidence in which he said that during his time in the maximum security section of Goulburn Gaol he has stayed very much to himself, sits alone and does not talk much to other inmates. He also described a period of being on a “green card” which meant that he could not be left alone in a cell. This meant that whenever his cellmate needed to be absent from the cell, which was frequently, the offender had to stay in an adjoining cell with other inmates, which he found disturbing and uncomfortable as the others did not want him in their space.

42. While the offender has more recently been taken off the green card after promising a nurse that he had no thoughts of self-harm, I am satisfied that his mental condition will continue to leave him isolated. I note, for example that he has no family or friend contact and I am also satisfied that his mental condition will likely also have other adverse effects upon him. I have ameliorated the sentence therefore by reason of these difficulties which affect this offender more adversely than many others. I have also taken into account the fact that the offender’s period in custody and his access to programs and other potential benefits has been adversely impacted by the effects of the Covid pandemic.

REMORSE

43. I am satisfied in this case that the offender has expressed genuine remorse and I note that the Crown also accepted that there is a level of remorse. A finding of remorse is supported not only by what the offender said in his evidence, but also by his demeanour and frankness which indicated to me that he is very contrite, ashamed and regretful of his actions. It was also supported by his expressions of insight in which he said that sexual abuse can scar children both physically and mentally and that the effects can be lifelong. He also expressed remorse and regret and showed insight when spoken to by Dr McSwiggan. His plea of guilty is also consistent with these other indications of remorse notwithstanding the strength of the Crown case.

RISK/REHABILITATION   

44. In terms of future risk of offending, Dr McSwiggan noted that while the offender’s Static-99 risk level is average, his actual risk of reoffending may be higher or lower based on dynamic factors, and as the psychologist notes:

“Mr Mackenzie-Hunter’s dynamic risks were both internal, related to drug intoxicated driven behaviour and fluctuations in his symptoms of psychotic mental illness and situational related to illicit substance use, internet access, psychiatric medication compliance and social isolation.”

45. I am not satisfied that the offender is normally an inherent risk to children and I note that the Crown conceded that the evidence does not support the existence of a paedophilic disorder. However, given the chronic nature of his mental illness and his longstanding tendency to abuse drugs, it seems to me that his prospects of rehabilitation might be described as reasonable but to be regarded with caution. Those prospects will, however, depend heavily on whether the offender can maintain his medications, seek out help when he relapses, and avoid illicit drugs. It is positive that he has avoided drugs in custody and expressed a wish to receive treatment on his release and I have taken this into account also in my assessment of his prospects of rehabilitation.

46. It is most unlikely that the offender will, while in custody, receive any real assistance in strategies to help him stay on his medications and to stay away from illicit drugs and out of trouble. It seems appropriate therefore that the sentence to be imposed should include a reasonable period under some sort of supervision once he is released.

OTHER CONSIDERATIONS

47. General deterrence is clearly a fundamentally important matter and specific deterrence of this offender also remains important. The importance of specific deterrence is highlighted by the fact that the offender must now be taken to realise his potential to commit offences like this one if he fails to comply with his treatment and/or he chooses to abuse illicit drugs.

48. I have also taken into account the fact that the offence before the Court is of a kind that is prevalent and often difficult to detect, given the enormity and relative anonymity of the internet. As to the non-exhaustive checklist in s 16A of the Crimes Act 1914, I make the following observations as to the paragraphs of that subsection that are relevant.

49. As to para (a) I have already set out the nature and circumstances of the offence. In relation to para (d), there is no victim as such although as the Crown submitted that does not reduce the seriousness of the offence. As to para (f) I have already made findings in relation to remorse and contrition and also as to para (g) the significance of the offender’s early plea of guilty. Similarly in relation to paras (j) and (ja) I have already acknowledged the significance of general and personal deterrence. The need to ensure that the person is adequately punished as referred to in para (k) is merely a statement of the obvious and as to para (m) I have already set out the relevant subjective circumstances of the offender. As to para (n) I have already made findings as to the offender’s rehabilitation prospects.

50. I have had regard to the schedule of comparative cases provided by the Crown and to other sentencing decisions referred to in those cases as well as to Judicial Commission statistics and also to various other matters to which I referred already.

51. I am satisfied after considering all other options and the presumption in s 20(1)(b)(ii) of the Crimes Act 1914 that no penalty other than full time imprisonment is appropriate in this matter. In determining the sentence and the recognisance release order that I intend to impose, I have also, as required by s 16A(2AAA) of the Crimes Act 1914 had regard to the objective of rehabilitating the offender. In this respect, I am satisfied that it is appropriate to impose conditions aimed at rehabilitation and treatment and that the orders I make should include sufficient time for the offender to undertake that treatment and rehabilitation.

DETERMINATION

52. I impose a sentence of two years, nine months imprisonment, that being the head sentence. That will date from 28 January 2021, when the offender was taken into custody, and will expire on 27 October 2023. Pursuant to s 20(1)(b) of the Crimes Act 1914, I order that the offender be released after serving 18 months upon giving security by recognisance without sureties to comply with the following conditions.

52. Firstly, to be of good behaviour, which I note includes of course not using illicit drugs.

53. Secondly, that he be subject to the supervision of a Community Corrections Officer.

54. Thirdly, that he obey all reasonable directions of Community Corrections.

55. Fourthly that he not travel interstate or overseas without permission in writing of a Community Corrections Officer.

56. Fifthly, that he undertake such treatment or rehabilitation programs as reasonably directed by Community Corrections.

57. The offender will therefore be eligible for release on that recognisance release order on 27 July 2022. I note that I have been asked to make a Forfeiture Order pursuant to s 23ZD of the Crimes Act 1914 and I understand that the terms of that order have been provided to my associate and I will make that order in chambers.

58. Ms Crown, Ms Kim anything to raise?

59. HEDGER: Just one technical point, your Honour, in relation to the recognisance order. There needs to be a sum, a specific dollar figure in relation to the recognisance.

60. HIS HONOUR: Alright, well I specify an amount of $100 in that regard.

61. HEDGER: Thank you.

62. HIS HONOUR: Ms Kim, anything to raise?

63. KIM: No nothing, your Honour, thank you.

64. HIS HONOUR: Now I should just explain the sentence to Mr Mackenzie Hunter. Mr Mackenzie-Hunter can you hear me?

65. OFFENDER: Yes, your Honour.

66. HIS HONOUR: So I've imposed a head sentence of two years, nine months imprisonment which will not expire until 27 October 2023, however I have made an order that you be released on 27 July 2022 on what's call a recognisance release order, which means you have to sign a piece of paper and you have to give security to the amount of $100 and then you will be subject to a number of conditions that I read out earlier.

67. OFFENDER: Yes, your Honour.

68. HIS HONOUR: Firstly, that you be of good behaviour which obviously includes not committing offences and not using illegal drugs. Secondly, that you be supervised by Community Corrections. Thirdly, that you obey all their reasonable directions. Fourthly, that you not travel interstate or out of Australia without written permission by Community Corrections, and fifthly that you undertake treatment or rehabilitation programs as directed by Community Corrections. Alright?

69. OFFENDER: Yes, your Honour.

70. HIS HONOUR: Now you'll be given, once you're released you'll have to sign some papers which will set out those conditions and so you must understand that it is very important that you read them and understand them and comply with them, that is not break them, because if you do then you'll likely be taken into custody and you'll have to serve the rest of the sentence, okay?

71. OFFENDER: Yeah.

72. HIS HONOUR: So it’s a period of 15 months, one year three months that you'll be subject to that supervision and to all of those conditions that I mentioned okay?

73. OFFENDER: Yes.

74. HIS HONOUR: Alright thank you and I will make the forfeiture order which has certain conditions attached to it during the course of today.

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Decision last updated: 25 February 2022