R v McKenzie - [2008] VSC 394

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1581 of 2007

THE QUEEN

JOHN McKENZIE

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2008
DATE OF SENTENCE:	3 October 2008
CASE MAY BE CITED AS:	R v McKenzie
MEDIUM NEUTRAL CITATION:	[2008] VSC 394

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CRIMINAL LAW – Sentence – Murder – Guilty plea – Accused contemplating killing in general sense – Access to depraved internet materials – Senseless murder of close friend – Youth – No prior convictions – No psychiatric or psychological disturbance – Limited remorse.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Accused	Mr W Stuart	Rainer Martini & Associates

HIS HONOUR:

John Graeme McKenzie, you have pleaded guilty to the murder of Todd Leslie Laver at Upper Ferntree Gully on 2 December 2006.

The factual circumstances which led to your murder of Mr Laver can be shortly stated. However, the reason why you murdered Mr Laver, and the underlying causes of your actions, are more complex, and less clear.

At the time of the offence you were 20 years of age. You were then working as a cabinet maker, and residing at a unit in Underwood Road, Ferntree Gully. You shared that unit with a friend, Brendan Scholes. Through Scholes you met Mr Laver, and you and Laver became good friends. At that time Mr Laver was working as an apprentice for Doysal Plumbing. Shortly before 1 December 2006 Scholes had stolen the tools of Mr Michael Naylor, who was the principal of Doysal Plumbing. When the theft was detected by Mr Naylor, Laver and you acted as mediators for the return of the tools. For that purpose Scholes returned the tools to the unit at Underwood Road. As he did not wish to be present during the return of the tools to Mr Naylor, he decided to cease residing there. He requested that you put together his belongings, which he would collect subsequently.

On the late afternoon of 1 December 2006, Mr Laver attended at your unit to assist you to return the tools to Mr Naylor. In due course Mr Naylor attended, and the return of the stolen tools to him proceeded without incident. You and Laver then went to another friend’s premises to have a drink. After you returned to your unit, you proceeded to pack up Scholes’ belongings. While you were doing so, you found a large hunting knife belonging to Scholes. You decided to retain possession of that knife, and strapped it to your leg, using a scabbard which came with the knife.

Some time after 7.00 pm, Mr Laver again attended at your unit. You had a drink together, and later, at about 10.30 pm, attended at the house of a friend nearby. There a group of you had a social drink and conversation. While you were doing so you pulled out the hunting knife and showed it…

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 McKenzie

Details

AGLC: R v McKenzie [2008] VSC 394
Case: [2008] VSC 394
Decision Date: 3 October 2008

CaseChat Overview and Summary

The case of R v McKenzie arose from an incident where the accused pleaded guilty to the murder of a close friend. The court was tasked with determining an appropriate sentence for the crime. The accused, who had no prior convictions, killed his friend in a senseless act of violence. Although the accused had access to depraved internet materials, there was no evidence of psychiatric or psychological disturbance. The accused showed limited remorse for the act.

The primary legal issue before the court was to balance the severity of the crime against the mitigating factors present in the case. This involved considering the youth of the accused, his lack of prior convictions, and his limited remorse. The court also had to evaluate the impact of the internet materials on the accused's state of mind and whether this constituted a significant mitigating factor.

The court found that, while the internet materials might have influenced the accused's actions, they did not absolve him of responsibility for his actions. The senseless nature of the murder and the lack of remorse were significant aggravating factors. Despite the mitigating factors, the court held that a substantial sentence was necessary to reflect the gravity of the crime and to serve as a deterrent. Ultimately, the court determined that an appropriate sentence would reflect both the heinous nature of the crime and the mitigating circumstances surrounding the accused.

The final orders of the court reflected the balance struck between the severity of the crime and the mitigating factors. The court imposed a sentence that, while severe, took into account the youth and lack of prior convictions of the accused, as well as the limited remorse shown. The court emphasised the need for the sentence to serve as a deterrent against similar crimes in the future.

Orders