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

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mackenzie-Hunter

Details

AGLC: R v Mackenzie-Hunter [2021] NSWDC 740
Case: [2021] NSWDC 740
Decision Date: 29 November 2021

CaseChat Overview and Summary

In the case of R v Mackenzie-Hunter, the defendant was convicted of using a carriage service to groom a child under 16 years. The case was heard in the Federal Court of Australia. The defendant was found guilty and subsequently sentenced to imprisonment for a term of 2 years and 9 months.

The primary legal issue the court had to address was the appropriate sentence for the offence. This involved considering the nature and circumstances of the crime, as well as the defendant's background and the potential for rehabilitation. The court had to balance the need for punishment with the opportunity to rehabilitate the offender and prevent future offending.

In determining the sentence, the court took into account the seriousness of the crime, the vulnerability of the victim, and the defendant's prior criminal history. The court also considered the mitigating factors, such as the defendant's expressions of remorse and willingness to participate in rehabilitation programs. The court decided that a sentence of imprisonment was necessary to adequately reflect the seriousness of the offence. However, the court also recognised the potential for rehabilitation and ordered that the defendant be released after serving 18 months, subject to various conditions including good behaviour and community supervision.

The court also made a Forfeiture Order pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth). The final orders included a sentence of imprisonment for 2 years and 9 months, with release after serving 18 months, and conditions for the defendant's supervision and rehabilitation.

Orders

Orders of the court

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.

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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