R v McKenzie

Case •

[2021] NSWDC 652

•

15 October 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v McKenzie [2021] NSWDC 652
Hearing dates: 17/9/21, 15/10/21
Date of orders: 15/10/21
Decision date: 15 October 2021
Jurisdiction:Criminal
Before: Bourke SC DCJ
Decision:

Convicted and sentenced to an aggregate term of imprisonment of 10 years with a NPP of 6 years (23/5/19-22/5/25). I find special circumstances.

I allow a 5 percent discount for the pleas of guilty.

The indicative sentences are:

Count 1 – 5 years 8 months with NPP 3 years 4 months (Form 1 taken into account).

Count 2 – 1 year 10 months (Form 1 taken into account).

Count 3 – 4 years 9 months with NPP 2 years 9 months (Form 1 taken into account).

Count 4 – 5 years with NPP 2 years 10 months.

Count 5 – 2 years 1 month (Form 1 taken into account).

Count 6 – 1 year 8 months.

Count 7 – 5 years 2 months with NPP 3 years (Form 1 taken into account).

Count 8 – 4 years 9 months with NPP 2 years 9 months.

I recommend that the offender’s laptop and mobile phone be returned by the Police to the offender’s solicitor.

Catchwords:

Crime – Sentence – Indecent Assault – Aggravate sexual intercourse with a child between 14 and 16 years – Under the influence of a drug

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Aslan v Queen [2014] NSWCCA 114

Brown v R [2014] NSWCCA 335

Cowling v R [2015] NSWCCA 213

Doudar v R [2021] NSWCCA 37

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Mbele v R [2021] NSWCCA 182

Moody v R [2020] NSWCCA 160

R v Chishimba [2011] NSWCCA 212

R v MAK and Ors [2005] NSWCCA 369

R v Nelson [2016] NSWCCA 130

SS v R [2009] NSWCCA 114

Suleman v R [2009] NSWCCA 70

Category:Sentence
Parties: NSW DPP – Crown
James David McKenzie - Offender
Representation: Ms Y Prowse for Crown
Ms T Evers for Offender
File Number(s): 2019/161923, 2019/174511, 2019/244016
Publication restriction: Non-publication order in relation to the identity of the victims

SENTENCE

  1. The offender Mr James McKenzie is for sentence in relation to eight offences as follows:

  2. Three offences of sexual intercourse without consent, the maximum penalty for which is fourteen years imprisonment and which attracts a standard non-parole period of seven years. Three offences of indecent assault, the maximum penalty for which is five years, and two offences of aggravated sexual intercourse with a child aged between 14 and 16 years, the circumstances of aggravation being that he took advantage of the victim being under the influence of a drug. The maximum penalty for those offences is 12 years and a standard non-parole period of five years is specified.

  3. In being sentenced for these offences the offender asks that I take into account a further 12 offences specified on five separate Form 1 documents to which he admits his guilt.

  4. The offender pleaded guilty to the eight offences on the indictment on 24 July 2021. Those pleas of guilty were entered subsequent to negotiations entered into after the date for the offender’s original trial which commenced on 25 March 2021 but was vacated. I intend to allow a 5% discount on account of the utilitarian value of the pleas of guilty.

  5. The maximum penalties and the standard non-parole periods where applicable are of course an important guidepost to which I have had regard.

FACTS

  1. The facts are agreed and in summary are as follows:

  2. At all relevant times the offender was self-employed as a body piercer, and traded under the name “Jimmy Jam Piercer Man”. His piercing studio was originally in Port Macquarie, it had two rooms, the front room acting as a reception area, with a lounge and a tank containing a pet lizard, and a back room which was used for piercing, and which contained a piercing chair, table and associated equipment.

  3. Count 1 relates to Ms KD. Count 1 is an offence of sexual intercourse without consent. In addition the offender asks that I take into account on a Form 1 document two additional offences of sexual intercourse without consent involving KD.

  4. KD was in December 2017, 17 years of age, and was in Year 11 at school. She met the offender when she attended with a friend at the offender’s studio to have her navel pierced. After the piercing was done the victim sent a message to the offender’s Facebook business page about the piercing and in response he invited her and her friend to return to the studio which they did later that day. At the studio they sat on a lounge in the reception area and the offender removed the pet lizard from its tank and placed it on the victim’s chest. The offender was flirtatious and kissed the victim on the lips and the victim returned his kiss. At this time the victim’s friend made up an excuse and left the studio. Afterwards the offender started messaging the victim and inviting her to his studio. She began to confide in the offender, telling him about her problems and secrets, including issues she was having at school, at home, and at work and about an eating disorder that she was experiencing at that time. Sometime later the offender and the victim began having consensual sexual intercourse in the studio and this occurred about 20 times over the next few months. The offender also started smoking methylamphetamine in front of the victim which made her feel uncomfortable.

  5. In March 2018 the victim began to realise that she had lost a lot of friends and that her relationship with the offender had become, as she called it, “toxic”. The offender was controlling in that he had to have what he wanted while the victim felt like she was always trying to appease him. On 10 March 2018 the offender messaged the victim and arranged to pick her up at the end of her street. The victim got into the offender’s car and they drove back to the studio. At the time the offender was high on drugs. At the studio the victim told the offender that they could not continue seeing each other. In response the offender said they should play a game in which Samantha, the offender’s de facto wife, did not exist. As part of this game the offender said to the victim “I love you”. When the victim did not respond the offender said “We’re not playing the game anymore, I really love you”, and the offender started becoming exasperated as the victim would not say “I love you” in return. The offender stood up and walked toward the door and the victim followed thinking that they were leaving, however the offender closed the door and started to kiss the victim and undress her. Although the victim said “I want to go home”, she did not feel as though she could leave. The offender continued to undress the victim while she was saying “Stop” stop”. Although the offender paused for a moment and looked at the victim, he then continued to undress her. The victim told the offender to “stop” at least four times but he did not. She felt frozen, given the offender’s behaviour, his intoxication, his larger size and the closed door.

  6. The offender placed the victim face down over the couch, placed his weight on the back of her neck and torso, and had penial/vaginal intercourse with her. This offence is to be taken into account on a Form 1 document. After this, the offender removed his penis from the victim’s vagina, turned her around and told her to suck his penis, which she did. This offence is also a matter to be dealt with on the Form 1 document. The offender then laid the victim on her back on the couch and again had penile/vaginal intercourse with her. This is the subject of count 1 on the indictment. At this time his hand was around her throat, although enough to hold her down but not enough to cut off her breathing. The offender ejaculated inside the victim’s vagina and he was not wearing a condom. I note however the agreed facts indicate that a vasectomy had been performed on the offender in November 2017. After the assault, the victim got dressed and, as she was not wearing any shoes, asked the offender to drive her home, which he did. Later that night the offender contacted the victim and “guilted” her into going back to his house where he “ranted” about his wife and smashed his ice pipe as a demonstration that he was giving up drugs. At the victim’s request the offender drove her home. In spite of these events the victim remained in contact with the offender and attended his studio one more time so that he could remove one of her piercings. On that occasion the offender kissed her and she kissed him back. The victim later heard that the offender had moved to Armidale.

  7. The offender was arrested on 23 May 2019 in relation to other sexual offences not involving this victim. His arrest and the nature of the charges were reported in local media.

  8. In late 2020/early 2021 the victim thought about reporting the offences involving herself to the police and on multiple occasions she attend near Port Macquarie Police Station but on each occasion sat outside and did not enter the building. However on 7 February 2021 she did make a report to a police officer and on 15 February 2021 she provided a statement.

  9. The second victim, ID, was aged 16 at the time of the offences and the offender was aware of her age. On 18 April 2018 the victim sent a message to the offender’s Facebook business page enquiring about an ear piercing, telling him that she was only 15 years old and could not have the piercing for a few weeks until she turned 16. The offender invited the victim to attend his studio the following day. On 19 April 2018 the victim attended the studio at Port Macquarie where the offender performed an ear piercing after which he gave the victim his mobile phone number and invited her to contact him. A few days later when the piercing became infected the victim in the middle of the night sent a message to the offender seeking advice. The offender replied that he would pick her up immediately so as to fix it but the victim thought this was “weird” and declined the offer.

  10. Over the following weeks, the victim became friends with the offender and confided in him about personal issues such as her depression and concerns about the relationship with her boyfriend. The offender and the victim started to refer to the victim as his “shop girlfriend”. On 5 May 2018 the victim turned 16. About two months later on 2 July 2018 an exchange took place on Facebook Messenger in which the offender said he was calling her and she should sneak away so that he could hear her voice. During this exchange the victim said she could come this afternoon but “she”, which I assume is a reference to her mother, said “I have to be home at 6 to 6.30”. The victim had told her mother that she was going out shopping with friends. At about 10 past 2 in the afternoon that day another exchange took place about meeting up and at about quarter past 2 that afternoon the offender picked up the victim from school and drove her back to his studios. She was wearing her school uniform which consisted of a tracksuit with a school emblem on it. During the drive they discussed the prospect of the victim receiving a facial piercing. Upon arriving at the studio the victim sat on a lounge in the reception area while the offender sat on a chair. The victim spoke to the victim about issues she was having such as with her family and her boyfriend. The victim told the offender that she had been “fingered” by a guy at school but she did not enjoy it, to which the offender responded “He must have been inexperienced and you need to find someone experienced”. The victim also spoke about her scoliosis which caused her back pain, and the offender sat on the lounge and said “Do you want a massage”. While the victim said “No it’s okay” and continued to talk about other issues the offender continued to press her to receive a massage which she repeatedly declined. However the offender put his legs over the victim’s legs, placed his arm around her and pulled her on top of him so that he was lying on his back on the lounge with the victim on her back on top of him. After pulling the victim on top of him the offender started massaging her shoulders and then put his hands under her tracksuit top and massaged her breasts. The victim froze. The offender was breathing heavily and the victim could feel his erect penis pushing against her back. This is a matter that has to be taken into account on a Form 1 document.

  11. After this the offender rolled down the top of the victim’s tracksuit pants, placed his hand under her underpants and started touching her on the pubic area. This is the subject of count 2 on the indictment. While doing this he began to nibble and bite on her ears while the victim was still “frozen”. The offender then turned the victim over so that she was facing him and said “Please kiss me” to which the victim said “No”. Although the offender repeated this request, the victim again said no, to which the offender replied “Come on, don’t be scared”. As the victim wanted to appease the offender and get out of the situation she gave him a “peck” on the lips. The victim tried to move away and turned onto her side however the offender put his hand into her underwear and started squeezing her buttocks. This is the subject of a matter of indecent assault on a Form 1 document.

  12. The victim stood up and moved to the other side of the room saying “I don’t like this” to which the offender replied “That’s okay, I was just testing you”. After this the offender’s demeanour changed and he started to be “all friendly again” and tried to “justify” what he had done, however the victim was still in shock. The offender offered to do a piercing for the victim saying he did not usually work on Mondays and had opened the studio just for her. The victim agreed and they both went to the piercing room. In May 2019 the victim provided a statement to police after being contacted by them as part of the investigation of the offender.

  13. I turn then to the offences concerning the third victim. Counts 3 and 4 relate to GO. On 20 June 2018 the victim turned 17 years of age. Shortly after her birthday, she sent a message to the offender’s Facebook business page enquiring about a nipple piercing. After receiving a response the victim attended the offender’s studio a few days later and met with him and his “apprentice”. Although on her arrival she intended to have only one nipple pierced, the offender “talked her into” having both nipples done. A few days later one of the piercings fell out and so the victim contacted the offender and he advised her to return to the studio where he re-pierced the nipple.

  14. A few weeks later, the victim returned to have her navel pierced. While she was standing in reception the offender unexpectedly placed his hand under her shirt and rubbed her stomach claiming he needed to get an idea of what size piercing would be best. The offender pierced the victim’s navel that day. While talking with her, the offender made reference to the victim’s red hair and said “I love feisty gingers. My ex is a ginger and I have dated so many gingers”. He also said “You’re my feisty little ginger shop girlfriend”.

  15. About a week later the victim returned to the studio and showed the offender a sketch that she had done of some ear piercings she wanted, however she told him she only wanted one piercing done that day as she was aware that it would be painful as it involved penetration of cartilage and also because she only had enough money for one piercing. Once the victim was in the piercing chair the offender performed 12 piercings even though the victim had told him she could not afford them. The pain from the piercings was excruciating. Once the piercings were done, the offender said that he would give the victim a discount because she was his “ginger shop girlfriend” and had done such good drawings. He told her to return the next day so he could clean some blood from the piercings.

  16. The following day was 9 August 2018. The victim was at school and told a male friend that she was taking a half day off school to attend the offender’s studio to pay for her piercings and to have them cleaned. She told her friend that the last time she had gone to the studio the offender had made her feel uncomfortable and so she asked her friend to make himself available if she needed to be picked up from the studio as she had a “strange feeling” about the offender. When the victim returned to the studio, the offender had a quick glance at her piercings and she paid him a discounted price of $235. The offender asked the victim to sit on the lounge in the front room and when she did the offender removed the pet lizard from its tank and handed it to her. Subsequently the offender took the lizard from the victim, put it back in its tank and then sat very close to the victim on the lounge. He put his arm around her shoulders and his other arm on her thigh and pulled her close and tried to kiss her on the lips but she turned away. The offender however started kissing her on the neck and cheek. The offender then took hold of the victim’s face, turned her towards him and then pulled back her hair with his hand, and put his other hand around her neck to pull her closer. He then forcefully kissed the victim and put his tongue in her mouth while using his hand to restrict her airway. The victim was frozen and did not know what to do. When the offender’s apprentices and a female customer returned to the reception area the offender stopped kissing the victim but kept his arm around her. After the customer left the offender told the apprentices to go out to buy a notebook and they left.

  17. The offender then said to the victim “Do you want to go out the back and fuck” to which the victim replied “No I don’t want to, I have a boyfriend”. The offender responded “Come on, come on, that doesn’t matter. I know you want to” but the victim again replied “I really don’t want to, sorry”. Despite this the offender said “Come on” and “dragged” the victim into the back room by her arm. She tried to pull away but was scared because the offender was significantly larger than her in size. Whilst the pair were in the piercing room the offender closed the door and the victim felt she was not able to leave. The offender pushed her against the piercing bed so that she was standing with her back to him. He lifted her skirt, pulled down her underwear and put his erect penis into her vagina. The offender had all his weight on the victim’s back and was holding her down from behind almost on top of her while the victim was frozen with fear. This is the offence referred to in count 3 on the indictment.

  18. After having penile/vaginal intercourse for “a while” the offender turned the victim around so that she was facing him and pushed her to her knees. He then put a hand on her shoulder and a hand on the back of her head and placed his penis into her mouth without using a condom. After a period of time the offender ejaculated into the victim’s mouth. After doing so the offender said “Did you like that” but the victim remained kneeling and did not respond. The offender pulled up his pants and went to the bathroom. While he was in the bathroom the victim called her male friend and asked him to pick her up. The friend left school straight away and arrived at the studio within minutes. When he arrived, he found the door half open and the victim sitting on the couch with the offender sitting almost on top of her with one leg across her legs, one arm around her shoulders and the other hand just about around her neck. The victim’s face was red and she looked on the verge of tears. The victim left the premises with her friend who noticed a red mark on her neck and that her clothing looked dishevelled. In the car the victim was crying and hyperventilating as if she was having some type of panic attack. She told her friend “I’m going to report him to the police”. At the victim’s request the friend drove her home. The victim wore makeup to school the following day to cover up the marks on her neck.

  19. About a week later on 16 August 2018 the victim attended Port Macquarie Police Station and made a report that the offender had kissed her against her will. She did not however provide a full version of events at that time as she felt scared and uncomfortable talking about the incident but did want the police to know that “Jimmy was taking advantage of girls”. The victim declined at that stage to provide a statement, however she did provide a statement in May 2019 when contacted by police.

  1. About two weeks after the assault on this victim the offender left Port Macquarie and travelled to Western Australia and then to Armidale where he set up a new piercing studio. The offender initially rented a house in Donnelly Street but later moved to Marsh Street Armidale where he opened his piercing studio in late December 2018.

  2. I then move to the offences concerning the next victim, KO, who is the victim in counts 5 and 6. Ms KO was 20 years of age at the relevant time. She became aware of the offender through his reputation as a body piercer. On 5 October 2018 she contacted him via his Facebook business page acknowledging his arrival in Armidale and requesting a price list. The offender replied and they started exchanging messages via Facebook and Tinder. After a few of these conversations, the messaging became sexual and the offender said “Come over, let’s have sex. I will tie you up, I have whips. If we have sex I will do free piercings. I will do custom piercings that can cost over $600”. The victim however replied that she was not interested in a sexual relationship.

  3. On 13 October 2018 the victim attended the offender’s premises with a friend where the offender pierced the friend’s ears. While doing this he initiated a “weird” conversation about sex that made the victim feel uncomfortable. At one stage he said he liked it “rough” and that he knew that some of the victim’s friends liked it rough therefore she must also like it rough. While the offender was piercing the friend’s ears he repeatedly glided over on his stool to where the victim was sitting and touched her on the thigh. On one occasion he rubbed the victim’s thigh and said “Look at your hair, it’s gorgeous, don’t you just want to grab it”. The offender then grabbed the victim’s head with his left hand, pulled back her head and put his right hand around her throat. He pulled her head towards him and licked her on the ear. The victim’s friend perceived the encounter as uncomfortable and observed that the offender seemed fascinated by the victim, making flirtatious and sexual comments towards her which the victim did not respond to. The offender also asked the victim if she would be interested in being his apprentice. When the victim and her friend were about to leave, the offender asked the victim to come back later in the day for a free custom piercing. The victim and her friend left the house to obtain money from an ATM to pay for the piercing.

  4. When they returned the offender showed them a design for the custom piercing that he intended to perform on the victim and the victim agreed to return later that day. When she did return at about 4 o’clock that day the offender performed a piercing on her upper ear and started making comments of a sexual nature while touching her on the inner thigh. The victim sent a number of Snap Chat messages to her friend stating that the offender was making unwanted advances and making it difficult for her to leave by repeatedly saying that she should stay for “10 more minutes” and hinting that she should stay the night. The offender continued to make comments of a sexual nature and touched the victim on the inner thigh. The victim said “I don’t want anything sexual” to which the offender replied “I understand, that’s fine”. After this exchange the offender stopped touching the victim and changed the tone and topic of conversation.

  5. The offender then asked the victim if she wanted to meet his dog and he then took the victim towards the back of the house and into his bedroom where she saw his dog. The offender sat on one of the beds and pulled the victim so that she was sitting next to him. He then started talking about his drug and family issues and his studio in Port Macquarie. While doing so he continually touched the victim on the thigh, neck and shoulder. The victim again said she did not want anything sexual however the offender laid on the bed and pulled the victim down so that she was laying between him and the wall. He then put his hand under her shirt and started moving his hand towards her breast. She repeatedly pushed away his hand and said “Stop, I don’t want this” and felt very nervous because the offender was significantly larger in size than her and because she did not feel that he would allow her to leave. She started sending text messages to her friends asking them to come and pick her up. The offender put his hand back under the victim’s shirt and squeezed her left breast. He then started to bite her on the shoulder which was painful and left marks. The touching on the breast is an indecent assault matter which is to be taken into account on a Form 1 document.

  6. The victim then noticed that the offender had unbuttoned his pants. He then took hold of the victim’s hand and put it on his penis. Although the victim pulled her hand away about three times, each time the offender would place her hand back onto his penis. The victim was scared and did not know what to do. The offender started talking about bondage and hitting, biting and pulling hair. He said he liked it “rough” and that other people the victim knew liked it rough therefore she must like it rough also. This offence involving the touching on the penis is an indecent assault matter to be taken into account on a Form 1 document.

  7. The offender moved his hand from the victim’s breast to underneath her underwear, touching her on the genitals. The victim said “no” and pulled his hand out of her pants. This indecent assault on the victim’s genital area is another matter to be taken into account on a Form 1 document.

  8. Despite having his hand removed from the victim’s underpants the offender again put his hand into her underwear and touched her on the genitals on more than one occasion while trying to insert a finger into her genital area. The victim repeatedly said “no”. This indecent assault offence is the subject of count 5 on the indictment.

  9. While this was happening, the victim noticed that the offender had pulled down his pants and she could see his penis piercings. The offender moved the victim’s hand onto his penis again. At this point the victim told the offender that she was “a sex addict” who was in recovery and that she did not want to have sex. She said this because the offender had earlier told her that he was a drug addict and so she thought that he might refrain from forcing himself onto her if she put her refusal “in terms he could understand”. The victim continued to send messages to friends asking them to come and get her but she did not receive a reply. When the offender eventually went to sleep, the victim phoned a friend who came and picked her up at about 4am. I note that this indecent assault involving placing of the victim’s hand onto his penis is the subject of count 6 on the indictment.

  10. When the victim got into the friend’s car she reported that the offender had indecently assaulted her in his bedroom by grabbing her, touching her on the thigh and licking her ear, even though she told him that she did not want anything sexual.

  11. On 20 November 2018 the offender sent the victim the following messages via Facebook:

“Offender:- You should definitely give me a second chance.

Victim:- What second chance?

Offender:- Of spending time with me. I was going through a horrible time when I met you and shit has finally settled down in my life and now that I’ve moved into my own place and setting my studio up and back to my normal happy self”, and followed by a smiley face emoji.

  1. On 22 November 2018, in other words two days later, the offender sent another message to the victim which said, “That’s okay hun maybe next time. I’m legit a changed person since I saw you last”, followed by another smiley face emoji. That same day the victim received a phone call from the offender who apologised to her and said he was “a changed man” and that he had some issues he had been working through. He told the victim that he hoped she did not think he had tried to force himself onto her and that he respected her decision and also that he had been worried she had said no to having sex with him because of his body weight. The victim reported the matter to police in 2019 after seeing media reports relating to the offender’s arrest.

  2. That brings me to the facts concerning the fifth victim MC. Counts 7 and 8 relate to this victim, who was aged 15 at the relevant times.

  3. In March 2019 the offender sent the victim a Facebook message after which the two commenced exchanging messages. In one of those messages the victim told the offender she did not want to get involved with him and was only 15 years old. The offender told her that she looked older than 15 in her Facebook photographs. Sometime later, a friend of the victim agreed to collect a parcel on the offender’s behalf as his car was broken down. The victim and her friend went to the offender’s house in Armidale where the victim met the offender face to face for the first time. While she was at the house the offender pierced her ear for free and offered her a job as an “apprenticeship” starting the following week. The victim agreed, as she had no other source of income and the so-called apprenticeship started the following Tuesday when she pierced the offender’s nose, in return for which she was paid $60 in cash. Over the next six to eight weeks the victim worked for the offender Tuesday through to Saturday, however he only paid her on one further occasion. While the victim was working as the offender’s “apprentice” he carried out piercings on her which included both nipples. When asked by her about the legality of piercing her nipples the offender said, “Just make sure you don’t tell anyone because I’ll lose my business.” This offence of piercing a nipple of a child under the age of 16 is a matter that is to be taken into account on a Form 1 document.

  4. On 12 April 2019 the victim met with a friend at a McDonald’s restaurant. Earlier that day the friend had felt depressed and had taken some medication which led to the victim not wanting her friend to walk home alone. She therefore suggested that the friend accompany her to the offender’s house. The victim and her friend arrived there at about 7pm and the friend immediately went to the bathroom to vomit. After this the offender said they were going for a drive to buy alcohol and the offender and the two girls got into the offender’s BMW. Shortly after, the offender stopped at an address where he bought some methylamphetamine, after which he drove to a bottle shop. At the bottle shop he asked the victim to go inside and buy some alcohol, telling her that she looked old enough but the victim declined and the offender himself purchased the alcohol, after which he drove the two girls back to his house. On arrival at the house the offender produced the drugs he had bought, telling the girls it was speed and offering it to them. Although the victim’s friend declined, the victim herself, as well as the offender, consumed some of the drug by snorting it with a rolled-up banknote. The victim had never used methylamphetamine before and it is an agreed fact that it made her feel “too focussed” and like she was looking at herself “from another perspective”. The offender and the two girls sat in the lounge room and later went into the piercing room where the victim pierced her friend’s ear, while the offender took photographs. Later that night the victim’s friend left in a taxi, after which the offender became “really touchy feely” towards the victim who, because of the drugs she had consumed, was not feeling well and was “pretty much gone”. Around this time the offender decided they should do a “photo shoot” for his business and asked the victim to get undressed, which she did. Once she was naked the offender used black duct tape to bind her hands behind her back and put duct tape on her nipples in the shape of a cross and placed a mask over her face. The offender took approximately 50 photographs and a video while the victim was in this undressed state. This offence of “producing child abuse material” is a matter to be taken into account on a Form 1 document.

  5. While filming the victim he told her to bend over and when she did the offender slapped her on the buttocks and touched her on the genitals. This is a matter of “sexual touching” which is to be taken into account also on a Form 1 document.

  6. After a period of time the victim said, ”No more photos.” and put her clothes back on. The offender, however, made her sit on his lap while she was shirtless and again started “feeling her up”. The offender gave the victim $20 for the so-called photo shoot. After this the offender undressed the victim. Although she felt very uncomfortable, she did not resist, as she had seen a photograph of another naked young woman which the offender had circulated and she believed the offender had the capacity to circulate the images he had just taken of her. CCTV footage from the hallway of the offender’s house shows the victim naked and the offender shirtless and with his pants pulled down walking into his bedroom at about 3.39am on the morning of 13 April 2019. Once in the bedroom, the victim, feeling threatened, performed fellatio on the offender while he held onto her head. This offence of aggravated sexual intercourse is the subject of count 7 on the indictment.

  7. Eventually the offender stopped the fellatio and placed the victim on her hands and knees. The victim felt scared and “thinks” she told the offender she did not want to have sex, however the offender proceeded to have penile/vaginal intercourse with her. Although the victim asked the offender to wear a condom he told her he did not wear them because of his penis piercings and he ejaculated into her vagina. Afterwards when the victim asked if the offender had ejaculated inside her he told her not to worry because he had had a vasectomy. After these events the victim and the offender had a conversation about the victim being underage in which the offender said, “Just make sure you don’t tell anyone because I will get in shit and I don’t want any more rumours going around about me.”

  8. About a week after these events the victim was in the offender’s lounge room when she told him she needed money, in response to which the offender said, “If you fuck me I’ll give you $50.” The victim and the offender then had penile/vaginal intercourse in which the offender did not wear a condom. While in the bedroom the offender’s drug dealer arrived and supplied him with methylamphetamine which he later gave to the victim in lieu of cash. About two days later the victim and the offender had penile /vaginal intercourse again and about a week later the victim performed fellatio on the offender in exchange for $20. I treat these references in the agreed facts as being contextual matters only in the sense that the offences for which the offender is to be dealt with cannot be treated as isolated matters insofar as this victim is concerned. I do not treat these matters as providing any form of aggravation of the offences for which he must be sentenced.

  9. On 13 May 2019 when the victim attended a police station about an unrelated matter, she told police that she had worked for the offender who had given her drugs and money for sex. Sometime between that date and 22 May 2019 the victim also complained to the offender’s “other apprentice” saying that, “Jimmy sexually assaulted me and offered me drugs.” and that he was blackmailing her because he had taken photographs.

  10. On 22 May 2019 the victim provided a video-recorded statement to the police in which she said when asked whether the intercourse was consensual, “yes and no” and ”I did it because I felt like I had to because I was scared so I did say yes but I did not want to.”

  11. On 23 May 2019 the police attended the offender’s house in Armidale where he was arrested for the sexual assault of MC. Although the offender denied any sexual contact, he agreed he knew that the victim was 15 years old. In the offender’s bedside table police found two crosses made from black electrical tape matching those used in his offending against MC. When asked about the pieces of tape the offender denied that he had placed them onto the nipples of 15 year old MC, saying that he did not know where they had come from, although he subsequently contradicted this by saying that the black crosses had been stuck to his bed as part of a “BDSM thing”. The offender otherwise declined to be interviewed and he has been in custody since 23 May 2019.

  12. Those are the factual matters as agreed upon which he is to be sentenced.

OBJECTIVE SERIOUSNESS

  1. The important part of determining the sentence of course is that I make an assessment of the objective seriousness of each of the offences. Clearly, they must all be regarded seriously given the maximum penalties that apply, but especially the sexual intercourse counts which carry maximum penalties of 12 or 14 years, as well as standard non-parole periods, as I have previously noted.

OBJECTIVE SERIOUSNESS – COUNT 1

  1. In relation to the objective seriousness of count 1 I make the following findings:

  2. Count 1 involved an offence of penile/vaginal intercourse without consent in which the offender ejaculated into the victim’s vagina. Although there was little or no risk of pregnancy as the offender had had a vasectomy, the fact that ejaculation occurred is, in my view, a matter that increases the sense of degradation and personal invasion that the victim would have experienced. There is also the very significant size disparity between the offender and the victim which, together with the fact that the offending took place behind a closed door when the victim was alone in the offender’s premises, rendered her effectively helpless to avoid the assault. In referring to size disparity I note the offender’s concession in cross examination that given his physical size “most people” were significantly smaller than him; a matter which is confirmed by the record of his height and weight as recorded on his criminal history document. There was also a significant age differential between he and Ms KD, the offender being twice the age of the victim.

  3. It was argued by the Crown that the objective seriousness of the offences was increased in that the offender had actual knowledge that the victim did not consent and in this regard the Crown pointed to the agreed fact that the victim had told the offender she wanted to end the relationship and had told him several times to stop. The offender told Dr Martin - who has provided a report to the Court - that he genuinely thought at the time that there had been consent, but accepted that his judgment was poor, especially in light of his frequent intoxication.   

  4. The offender essentially maintained this position in his evidence on sentence and said he had no memory of the victim telling him she wanted to end the relationship but that he did “kind of” recall her saying no, although his memory was hazy. Self-induced intoxication is not a matter however that I am entitled to take into account when determining the offender’s state of mind in relation to consent.   

  5. In light of the contents of the agreed facts which note that the victim said she wanted to end the relationship, that she said “stop” several times and that she was effectively held down by the throat while the offence took place, I am satisfied beyond reasonable doubt that the offender did have actual knowledge that the victim was not consenting to the sexual intercourse.

  6. It was also submitted by the Crown that the offence involving this victim was aggravated for the purposes of s 21A(2)(k) by reason of a breach of trust. I have approached this issue with caution and with regard to a number of cases that have considered the nature of a breach of trust. Breach of trust is a serious aggravating feature where it is present. In Suleman v R [2009] NSWCCA 70, Howie J said at para 22,

“This aggravating factor is not made out simply because the victim trusted the offender for some reason or other...the relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to a ‘position of trust’. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings.”

  1. In Cowling v R [2015] NSWCCA 213 the Court of Criminal Appeal concluded that the sentencing judge had erred in concluding that the existence of a friendship between the victim and the offender increased the seriousness of the sexual offending. Leeming JA said at para 12:

“This approach disclosed error because the friendship between the victim and the offender supplied the occasion and the opportunity for the assaults. That is why the victim got into a car driven by the offender and travelled with him and her former partner to the latter’s house at 11.30 at night. But those circumstances did not increase the seriousness of the offender’s conduct.”

  1. I am conscious that there can be no exhaustive list of the circumstances in which a breach of trust might be made out. See R v MAK and Ors [2005] NSWCCA 369 at para 103.

  2. It seems to me however that the circumstances of the offence involving KD are distinguishable from those in Cowling and are more akin to the type of trust arising from a spousal or boyfriend/girlfriend type relationship. The situation was not simply one of a casual acquaintance or friendship, rather it was one in which the victim who was considerably younger than the offender, had confided in him about various personal issues, including her then anorexia condition, and had entered into a consensual sexual relationship with him over a period of months in which the sexual activity had taken place in the same studio where the offence occurred.

  3. The agreed facts confirm that immediately prior to the offence the close relationship between the victim and the offender was an ongoing one given that once they arrived back at the studio the victim chose to tell the offender that she could no longer continue in the relationship. I am satisfied therefore that the aggravating feature of breach of trust is made out.

  4. Having regard to these matters, in my opinion the objective seriousness of the count 1 offence lies just into the mid-range. In reaching that conclusion I have considered the Crown’s submission that the offence was motivated by a desire to punish the victim for wanting to end the relationship. However this is not a matter about which I am satisfied beyond reasonable doubt, especially in light of the offender’s denial in evidence of any such motive and so I put this issue aside.

OBJECTIVE SERIOUSNESS – COUNT 2

  1. In assessing the objective seriousness of count 2, I note the age and size disparity between the offender and the 16 year old victim and the relative helplessness of the victim who was alone in a closed room with him. I am also satisfied that the offence involved a breach of trust, given the combination of the difference in ages, the existence of the friendship between them over and some months, the fact that the victim had confided in the offender about personal issues, and that she was referred to by him as his “shop girlfriend”. Having regard to these matters and to the nature of the assault itself, which involved skin on skin contact with the external area of the victim’s vagina, I assess the objective seriousness of the count 2 indecent assault offence as being within the mid-range.

OBJECTIVE SERIOUSNESS OF COUNTS 3 AND 4

  1. Firstly I am satisfied beyond reasonable doubt in relation to each of these offences that the offender had actual knowledge that the victim did not consent. This is indicated by her repeated refusals of his advances, the agreed fact that he effectively “dragged” her into the piercing room while she attempted to pull away and the marks to the victim’s neck from being held by the offender. There is also the significant age differential and size disparity which together with the fact that the offence took place in an isolated closed room, rendered the victim almost helpless. I assess the objective seriousness of the count 3 offence as just below the mid-range and the count 4 offence which involved ejaculation into the victim’s mouth as just into the mid-range.

OBJECTIVE SERIOUSNESS OF COUNTS 5 AND 6

  1. The indecent assault offences in counts 5 and 6 were committed in circumstances where the offender could have been in no doubt that his sexual advances were unwanted. This conclusion flows from the agreed facts that KO told the offender she was not interested in a sexual relationship, repeatedly said “no” to the offender’s touching, and repeatedly moved his hands when he touched her sexually. There was also a considerable age disparity between them and also a considerable size disparity given the offender’s height and weight. Also, and similarly to most of the other offences before the Court, the offending took place in an isolated location, namely the offender’s bedroom, to which the offender had effectively lured the victim by an invitation to see his dog. I assess the objective seriousness of count 5 which involved touching the victim on her genitals as being within the mid-range. In assessing the objective seriousness of this offence I have not taken into account the reference in the facts to an attempt to insert a finger into the victim’s genitals as this may amount to a more serious offence of attempted sexual intercourse.

  2. As to the objective seriousness of the count 6 offence involving the victim’s hand being placed on the offender’s penis I assess this offence as being just below the mid-range. Furthermore, although not relevant to objective seriousness of these offences, they are aggravated by the fact that at the time of their commission the offender was subject to conditional liberty by reason of a Conditional Release Order imposed by the Local Court on 26 September 2018.

OBJECTIVE SERIOUSNESS OF COUNTS 7 AND 8

  1. I turn then to the objective seriousness of counts 7 and 8 which relate to MC. The objective seriousness of these two counts is considerable given that they involve taking advantage of the victim’s intoxication to commit the offences, and given also of course that they relate to a child. Their seriousness is confirmed by the maximum penalty and the standard non-parole period that is specified. Furthermore the offending involved the abuse of a position of authority in that the victim was at the relevant time working as a type of apprentice of the offender. There was also a considerable size and age disparity between the victim and the offender, although the weight that I attach to the age aspect is reduced given that the youth of the victim is an element of the offence.

  2. The Crown also submitted that the objective seriousness of these two offences is increased because of the absence of consent and pointed to the agreed facts, para 125, in which the victim said when asked if the sex was consensual “Yes and no” and “I did it because I felt I had to ‘cause I was scared so I did say yes but I didn’t want to”. In my view it is somewhat artificial to speak about a lack of consent in a case where the victim is a child and therefore incapable of giving informed consent. In R v Nelson [2016] NSWCCA 130 Basten JA said at para 23 that in such a case:

“The use of threats or force in overcoming resistance would be an aggravating factor, however mere lack of opposition is otherwise irrelevant.”

  1. Given the somewhat equivocal assertions by the victim as noted in para 125 of the Statement of Facts I am not satisfied beyond reasonable doubt that the victim was coerced by use of force or threats, and so I am not satisfied that this potentially aggravating feature is made out. But neither am I satisfied that the offending is mitigated by any so-called “consent” because, as I have already noted, the victim was not of an age where she could fully appreciate the nature and consequences of such activity and she could not therefore provide effective consent. Leaving aside this irrelevant issue of consent and having regard to the various other matters I have noted, I assess the objective seriousness of count 7 as being just below the mid-range and count 8 as being just into the mid-range. Again, however, although not relevant to objective seriousness, the offending in relation to this victim is aggravated because the offender was subject at the time to conditional liberty resulting from the conditional release order of 26 September 2018.

VICTIM IMPACT STATEMENTS

  1. Victim impact statements have been provided to the Court from KD, ID, KO and MC. It has not been submitted by the Crown that I should treat the contents of those reports as aggravating any of the offences and I do not do so. However, there is no doubt, as the courts of this country have recognised for some time, that the effects on victims of sexual offences, especially young victims, are often severe and long lasting. In many cases the offending leads to significant psychological issues including anxiety, difficulty trusting others, a fractured sense of self-worth, and self-blame. The victim impact statements in this matter speak clearly of these sorts of consequences and of the shame experienced as a result of the offender’s actions. Hopefully in time the victims will be able to accept that the only person who should feel shame is the offender.

SUBJECTIVE MATTERS

  1. I turn then to subjective matters relating to Mr McKenzie. The offender’s subjective case has been placed before the Court by written materials as well as evidence on oath from the offender and from his father. The offender is nearly 38 years old and was about 34 to 35 years old at the time of offending. He has a minimal criminal history and no history of sexual or violent offences. His background has been described in his father’s very frank affidavit which provides a “warts and all” account of the problems the offender has had since a young age, which has no doubt had a significant impact on his family. He has been a drug user from his early teens and was first diagnosed with mental health issues when he was about 16. He has a history of difficulties fitting in with others, partly due to being somewhat immature for his age. There has been a history of disorganised behaviour with numerus hospital admissions and instances of self-harm. There have also been many attempts at rehabilitation, however these have largely been unsuccessful, with the offender arranging to be discharged early and have usually been followed by relapses to drug use and mental health problems.

  2. The report of psychiatrist Dr Martin diagnoses the offender as having a substance use disorder and says that while it is plausible that he also has bipolar disorder, such a diagnosis is problematic because the effects of methylamphetamine use would have mimicked such a condition. Dr Martin notes that sustained methylamphetamine use like that in this case is likely to distort a person’s judgment making them impulsive, reckless and disinhibited. While this perhaps provides some context for the offences before the Court it is not a matter that mitigates them and does not reduce their objective seriousness or the offender’s moral culpability in any way. Dr Martin also concludes, consistently with comments by the offender’s father, that he has narcissistic personality traits. He also says that the offending, which occurred over a protracted period and while maintaining a business, cannot, in his view, be directly linked to a major mental illness.

  3. Significantly, the offender told Dr Martin that he last used illicit drugs about 20 months ago while in custody and the offender gave similar evidence before me. He was corroborated in this regard by his father who said that, ironically, the offender is currently in the best condition physically and mentally that he has been for many years. This is supported by my own observation of the offender when he gave evidence in these proceedings, in that he appeared to be rational and coherent and appeared to have achieved a good level of insight into the adverse effects that drugs have had on him.

REMORSE

  1. Turning to the issue of remorse. The offender expressed remorse in his evidence before me and made similar comments to Dr Martin and to his father. While the offender’s history of narcissistic behaviour makes me cautious about this evidence, on balance I am satisfied that there is some evidence of genuine remorse in this case. I also accept that his pleas of guilty, albeit late ones, are some further evidence of remorse given that the offences if defended would largely have involved a word against word contest.

REHABILITATION

  1. Turning to prospects of rehabilitation. The evidence of remorse and the fact that the offender now takes responsibility for his actions are positive matters in relation to his rehabilitation and his future risk. I agree with the view of Dr Martin that the risk of reoffending is very much dependent on whether the offender can maintain his abstinence from drugs and engage fully and consistently with appropriate treatment and counselling. Having regard to all of the evidence I agree with the concession made by the offender’s counsel, that his prospects of rehabilitation are guarded.

EXTRA-CURIAL PUNISHMENT

  1. It was also argued on the offender’s behalf that he has suffered extra curial punishment as a result of his offences. In other words, that he has suffered a loss or detriment that has been imposed on him by persons other than the sentencing court. In this regard the offender points to evidence that, after he was charged with offences, his house was broken into, his car was stolen and damaged, his dogs were let loose, his children were called names and that he was subjected to a lot of publicity, although most of it in 2019 in local news outlets and on social media. I have had regard to all of these matters and I accept that they amount to some level of extra-judicial punishment, but in my opinion they are not matters which can reduce the appropriate sentence to any great extent.

DELAY

  1. There has been some delay in this matter coming to trial and to sentence which cannot be attributed to the offender and I take this into account although the delay is not to such an extent that I give it great weight.

CUSTODIAL CONDITIONS

  1. Turning to the topic of protective custody. Evidence was given by the offender that he has been held in protective custody throughout his incarceration due to the nature of his offences and that he has been subjected to threats from other inmates and assaulted about four times. He gave evidence that he has very limited association with others and is being kept locked in for many hours for much of his time in gaol. In my view this evidence demonstrates that the conditions in this offender’s particular case have been, and are likely in future to be, somewhat more onerous than that of the general prison population. It is not possible and it is not appropriate for me to place any mathematical value on the impact of this aspect (see R v Chishimba [2011] NSWCCA 212), however I have taken this into account as one of the relevant matters in the sentencing exercise. I have also taken into account a number of recent decisions about the relevance of Covid-19 in sentencing including Moody v R [2020] NSWCCA 160, Doudar v R [2021] NSWCCA 37 and Mbele v R [2021] NSWCCA 182. Those decisions indicate that the impact of the pandemic ought in appropriate cases be taken into account on sentencing but that that impact should not be overstated nor should it be assumed that all people will be impacted equally. There is no evidence that the offender has any heightened physical susceptibility to the disease, however I accept that the recent outbreak in some prisons is likely to have added to the stress of his incarceration, although I note that the offender has been fully vaccinated since August 2021. I also accept that the current pandemic and the recent outbreak of the Delta strain in some prisons has had a practical negative impact by reason of continuing restrictions in contact with family, limitations in accessing medical and counselling services, restrictions in accessing work and education, and possible additional lockdowns in prison. Some of these adverse consequences, such as restricted access to family, have already materialised as confirmed in evidence from the offender’s father who described the very limited access which at times he has had with his son. I have therefore taken into account that the offender’s imprisonment for some time in the past and for some time into the future is likely to be more difficult than it would have been prior to the pandemic and before the recent outbreak of the Delta strain in some New South Wales prison.

MENTAL HEALTH

  1. I turn then specifically to the offender’s mental health issues. In DPP (Cth) v De La Rosa [2010] NSWCCA 194 it was said that an offender’s mental health may be relevant in sentencing in a number of ways. Firstly where there is a causal connection between the offending and the mental health, this may reduce the offender’s moral culpability. Secondly that the presence of mental health issues may make the offender an inappropriate candidate for general deterrence. Thirdly that it may make custody more onerous, and fourthly that it may decrease or in some cases increase the need for specific deterrence. However, as Justice Simpson, as her Honour then was, said in Aslan v Queen [2014] NSWCCA 114, none of these principles are expressed in absolute terms, and there is no presumption. Rather it is a matter for the sentencing Judge to consider whether on the specific facts of the case any of these principles are applicable.

  2. In this matter Dr Martin says that overall the offending as described cannot be directly associated with psychosis or being out of touch with reality and that the offending as described appeared to occur over a protracted period apparently while maintaining his business and in his view cannot be directly linked to major mental illness.

  3. Dr Martin however does consider that a diagnosis of substance use disorder can be made “first and foremost” and explains that sustained methamphetamine use would certainly distort a person’s judgment adversely, making them more likely to be impulsive, reckless and disinhibited.

  4. In my view this a fairly accurate assessment of the contribution of the offender’s mental health problems to his offending.

  5. The offender has a history of emotional dysregulation, but as Dr Martin said in his report “first and foremost he can be diagnosed with substance abuse disorder”. And while Dr Martin refers to multiple other diagnoses having been documented, it seems that he was not able to reach with any confidence a diagnosis other than substance use disorder. Dr Martin says in relation to any connection between the offender’s mental health issues and the offending that “a person who uses methamphetamine regularly will be prone to poor judgment, impulsivity and disregard for the consequences of their actions”. He also says that “overall the offending... cannot be directly associated with psychosis or being out of touch with reality as seen in schizophrenic states”. He also says, as I earlier noted, “the offending...appeared to occur over a protracted period, apparently while maintaining his business and in my view cannot be directly linked to major mental illness”.

  6. It was argued on the offender’s behalf that his self-induced intoxication was effectively linked to his mental health problems and therefore could be taken into account as some sort of mitigation or explanation for his offending. However this case is not in my opinion comparable to cases like SS v R [2009] NSWCCA 114 or Brown v R [2014] NSWCCA 335 where the offender became addicted to drugs at such a young age that it could not be classed as a personal choice. While I accept that the offender’s long standing psychological problems have likely contributed to his misuse of illicit substances, and perhaps ultimately to his substance use disorder, his self-induced intoxication which likely fuelled his offending behaviour is not a matter that mitigates his moral culpability, which I regard as fairly high in relation to all offences. Nor is it a matter that reduces the objective seriousness of any of his offences. Nor do I accept that his mental condition is one that makes him an inappropriate candidate for general deterrence. Given the nature of his self-induced intoxication and its link to the offences I consider that personal and general deterrence both remain an important part of the sentencing equation, although as to personal deterrence, I am of the view that his incarceration to date has already had a salutary effect on him such that he is less likely to re-offend, provided of course that he stays away from drugs.

  1. I do accept that his background of immaturity, narcissistic tendencies and difficulty fitting in with others is likely to make his time in custody more difficult than for some inmates and I have taken this into account also.

  2. I am satisfied in relation to each of the offences for which Mr McKenzie must be sentenced that the only appropriate penalty is one of full time imprisonment. In coming to that view and setting the sentence I have taken into account the purpose of the sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999.

  3. In relation to two of the offences those being counts 7 and 8 relating to MC, I am obliged - Mr McKenzie to give you the following warning. I am obliged to tell you of the existence of a piece of legislation called the Crimes (High Risk Offenders) Act 2006 which applies to “serious offences”, including the offences relating to Ms MC which are counts 7 and 8.

  4. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers that you would be a “High Risk Offender” who poses an unacceptable risk of committing a serious offence. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

DETERMINATION

  1. I intend to impose an aggregate head sentence and non-parole period. In setting the non-parole period, I make a finding of special circumstances, based on this being the offenders first time in custody, his mental health issues and the need for him to be monitored for a lengthy period in the community on his release. Having made a finding of special circumstances, I therefore intend to adjust the ordinary ratio between non-parole period and head sentence.

  2. As I have said, I intend to impose an aggregate sentence. In those circumstances I am required to nominate the indicative sentences that I would have imposed had I not been imposing an aggregate sentence.

  3. These are the indicative sentences which are applicable having taken into account the matters on the Form 1 documents which I accept should increase the relevant penalty by reason of the need to reflect the community’s entitlement to retribution and to some extent in this case also the need for personal deterrence. It should be understood that the sentences I am about to announce are not the final sentences that will be imposed. These are, as I have said, indicative sentences in relation to each of the eight counts before the Court and the final sentence I will announce after I have stated the indicative sentences. The indicative sentences are as follows:

  4. For count 1 involving Ms KD and taking into account the matters on the Form 1 document, a head sentence of 5 years 8 months with a non parole period of 3 years 4 months.

  5. In relation to count 2 involving ID and taking into account matters on the Form 1, a sentence of 1 year 10 months. In relation to count 3 involving GO, and taking into account matters on the Form 1, a sentence of 4 years 9 months with a non-parole period of 2 years 9 months. In relation to count 4 which also relates to GO, a sentence of 5 years with a non-parole period of 2 years 10 months. I note in relation to counts 3 and 4 that had I been imposing sentences separately for those matters they would largely have been ordered to be concurrent although not entirely so given that they do arise from the one single incident.

  6. In relation to count 5 relating to KO and taking into account matters on the Form 1, a sentence of 2 years 1 month imprisonment. In relation to count 6 which also relates to KO a sentence of 1 year 8 months imprisonment. I also note in relation to those two offences that I would largely have made them concurrent although not entirely so given that they arise out of a single incident.

  7. In relation to count 7 concerning MC and taking into account the matters on the Form 1, a sentence of 5 years 2 months with a non-parole period of 3 years. In relation to count 8 which also relates to MC, a sentence of 4 years 9 months with a non-parole period of 2 years 9 months. Again, given that those two offences, counts 7 and 8, arise from a single incident they would ordinarily have been ordered to be largely concurrent although not entirely so.

TOTALITY

  1. In determining the ultimate aggregate sentence I have applied totality principles and endeavoured to impose a sentence that addresses the important purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 but which is not such that it might be described as crushing.

  2. I impose a minimum term of 6 years imprisonment and an additional term of 4 years. The total sentence therefore is one of 10 years imprisonment and will date from 23 May 2019 when the offender was arrested. The offender will be eligible for release on parole on 22 May 2025 and the head sentence will expire on 22 May 2029.

  3. EVERS: I’m sorry, your Honour, I was on mute, there’s a matter I seek to raise, my apologies. Your Honour, at the time of Mr McKenzie’s arrest his laptop and phone was seized and they contain many of his personal photographs and contacts and other materials, he’s asking for an order for them to be returned.

  4. HIS HONOUR: I make a recommendation that the police return the offender’s laptop and mobile phone subject of course to removing any material that is of an illegal nature.

  5. PROWSE: Your Honour, I think it was also done on the last occasion but there was a matter on the 166 that was withdrawn, it was the H number ending 370 sequence 2 but I think we withdrew on the last occasion.

  6. HIS HONOUR: All right, well I note that that matter has been withdrawn. And when I say I recommend that the laptop and phone be returned it should be returned to the offender’s solicitor.

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Decision last updated: 03 December 2021

Most Recent Citation
Cases Citing This Decision

1

R v McKenzie [2022] NSWCCA 119
Cases Cited

12

Statutory Material Cited

2

Aslan v R [2014] NSWCCA 114
Leigh Brown v The Queen [2014] NSWCCA 335
Cowling v R [2015] NSWCCA 213