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R v McKenzie

R v McKenzie

Case [2021] NSWDC 652 15 October 2021

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Aggravated Sexual Intercourse

Pleas of Guilty

Non-Parole Period (NPP)

Criminal Law

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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

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

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 [2021] NSWDC 652
Case: [2021] NSWDC 652
Decision Date: 15 October 2021

CaseChat Overview and Summary

In the case of R v McKenzie, the defendant was convicted on eight counts of indecent assault involving a child between the ages of 14 and 16, with additional aggravating factors such as the defendant's use of a drug to facilitate the assaults. The case was heard in the Supreme Court of New South Wales, where the defendant faced a comprehensive sentencing hearing following his guilty pleas to all charges.

The primary legal issues before the court were the determination of an appropriate aggregate sentence for the defendant’s crimes, the consideration of any special circumstances, and the application of a discount for the defendant’s pleas of guilty. The court also had to decide on the appropriate non-parole periods (NPP) for each count, taking into account the aggravating factors and the cumulative impact of the offences.

The court found that special circumstances were present due to the vulnerable nature of the victims and the defendant’s use of a drug to facilitate the assaults. The judge allowed a 5% discount for the pleas of guilty, resulting in an aggregate term of imprisonment of 10 years with a non-parole period of 6 years. The court meticulously assessed each count, considering factors such as the severity of the crimes, the defendant's history, and the need for deterrence and rehabilitation. The indicative sentences for each count were calculated with consideration of Form 1, which was taken into account in several instances.

The final orders included the recommendation that the offender’s laptop and mobile phone be returned by the Police to the offender’s solicitor, along with the specified sentences and non-parole periods for each count. The court’s decision emphasised the importance of addressing the vulnerability of the victims and the gravity of the crimes committed.

Orders

Orders of the court

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.

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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Citations

AGLC Citation

R v McKenzie [2021] NSWDC 652

Most Recent Citation

R v McKenzie [2022] NSWCCA 119

Cases citing this decision · 1 of 1 shown

R v McKenzie
[2022] NSWCCA 119 Para 5

…Like N Adams J, I assume the reader is familiar with Judge Bourke’s sentencing judgment: R v McKenzie [2021] NSWDC 652. I adopt the balanced summary of facts provided by Judge Bourke at [6]-[47]. The course of sexual misconduct, engaged in for over a year, involved offences on five separate victims. At least four o…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Mbele v R
[2021] NSWCCA 182 Para 75

…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 n…
Doudar v R
[2021] NSWCCA 37 Para 75

…so 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 sentenci…
Moodie v R
[2020] NSWCCA 160 Para 75

…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…
R v Nelson
[2016] NSWCCA 130 Para 65

…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:…
Cowling v R
[2015] NSWCCA 213 Para 55

…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:…
Leigh Brown v The Queen
[2014] NSWCCA 335 Para 81

…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 l…
Aslan v R
[2014] NSWCCA 114 Para 76

…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…
R v Tyrone Chishimba, Tyrone Chishimba v R, Likumbo Makasa v R, R v Likumbo Makasa, Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga
[2011] NSWCCA 212 Para 75

…son 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…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 76

…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 offe…
Ss v R; JC v R
[2009] NSWCCA 114 Para 81

…en 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…
Suleman v R
[2009] NSWCCA 70 Para 54

…r 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,…
R v MAK
[2005] NSWCCA 369 Para 56

…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 .…

Legislation cited in this decision · 2

Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 78)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 77)

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