R v McKenzie

[2021] NSWDC 82

District Court

New South Wales

Medium Neutral Citation:

R v McKenzie [2021] NSWDC 82

Hearing dates:

29 January 2021

Date of orders:

05 February 2021

Decision date:

05 February 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence imposed one of 12 years and 6 months imprisonment with a non-parole period of 8 years and 4 months.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child < 10

CRIME — Child sex offences — Indecent assault — Circumstances of aggravation — Child < 10

Legislation Cited:

Crimes Act 1900 (NSW) ss 66A (1), 61M (2)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(1)(l), 21A(1)(g), 21A 5

Category:

Sentence

Parties:

Director of Public Prosecution (Crown)
Paul Raymond McKenzie (Offender)

Representation:

Counsel:
Mr Sfinas (Crown)
Mr Ainsworth (Offender)

Solicitors:

File Number(s):

2018/347691

Publication restriction:

Statutory non-publication order re the complainant

SENTENCE

Introduction

1. After a trial before me, sitting without a jury, I found the offender guilty of the following three offences:

2. That between 22 May 2011 and 21 May 2013, at North Parramatta, the offender committed an indecent assault upon ES, a child then under the age of 16 years, namely six or seven years of age.

3. The second offence was in the same terms as in the first offence, although a different event was relied upon by the Crown. As at the time of the two indecent assault offences the maximum penalty for those two offences was ten years imprisonment and there was an applicable standard non-parole period of eight years imprisonment. The two offences were offences under s 61M (2) of the Crimes Act.

4. The third offence was an offence that between 22 May 2011 and 21 May 2013, at North Parramatta, the offender had sexual intercourse with ES, a child then under the age of ten years, namely six or seven years. As at the time of the sexual intercourse offence the maximum penalty for that offence was 25 years' imprisonment and there was an applicable standard non-parole period of 15 years. It is an offence under s 66A (1) of the Crimes Act.

5. I found the offender not guilty in relation to two further offences that were present on the indictment.

The Facts

6. Turning then to the facts. These are sentence proceedings after trial and I am required to find the facts to the extent that they are adverse to the offender upon which he is to be sentenced beyond reasonable doubt. Of course, the facts I found established in relation to each of the three counts that I found the offender guilty of in my verdict judgment were found beyond reasonable doubt.

7. The offender at the relevant time lived in the same apartment complex as the victim’s father. The offender’s date of birth is 18 October 1953, so as at the date of the three offences the offender was between 58 and 61 years of age. The victim’s date of birth was 22 May 2005, so as the time of the three offences the victim was between six and eight years of age. As at the time of the offences the victim’s mother and father lived separately. The victim would, however, on a regular basis stay with her father in his apartment. The offender was a friend of the victim’s father and lived in the same complex. Through the victim staying at her father’s apartment the offender became acquainted with the victim, and in particular when he would visit the victim’s father in his apartment.

8. In relation to the facts concerning count 1, as I indicated when I returned a verdict of guilty in relation to that count, I found that the offender on either the first, second or third time after the victim met the offender gave her a foot massage and asked her if he could touch her in what she described as “the privates” and that she let him do so not knowing at the time what to say. The victim was six or seven years of age when this offence occurred and the touching took place on the top of her underwear. This offence occurred on an occasion when the victim was visiting her father and the offender was visiting her father’s premises, and while the victim’s father was in the upstairs area of the apartment. The whole massage, including the foot massage, lasted for about 15 to 20 minutes.

9. In relation to the facts concerning counts 2 and 3, I find beyond reasonable doubt, consistent with my verdict judgment, these two offences were committed during the one incident. The offences occurred shortly before the victim’s seventh birthday. The offences again occurred on couch in the victim’s father’s apartment on an occasion when she was visiting her father and the offender had attended her father’s premises.

10. The second offence involved the offender initially massaging the victim on her vagina, but over the top of her underwear and the offender then proceeded to massage her on her vagina, but under her underwear. The victim’s father at one point came down the internal stairs to the apartment and the offender ceased the massage. The offender briefly spoke to the victim’s father before the father returned to his room on the upper level of the apartment. Once the father had returned to his room the offender pulled the victim’s underwear down and her dress up and pulled down his own underwear to expose his erect penis. The offender proceeded to have penile/vaginal intercourse with the victim which caused her some pain. This was the first occasion that the offender had engaged in penile/vaginal intercourse with the victim, and later that day when she showered the area around the victim’s vagina was extremely sore.

11. The Crown adduced in the trial, as context evidence, evidence of other uncharged acts alleged by the victim against the offender. As I said in my verdict judgment, in the main I found the victim’s evidence to be credible in relation to the allegations of other acts of sexual misconduct by the offender with the victim. I was unable to find beyond reasonable doubt, however, that certain specific conduct which was relied upon for counts 4 and 5 on the indictment was established beyond reasonable doubt for the reasons I then gave.

12. The evidence of the uncharged acts, together with the evidence, which I accept, from the victim that the offender would on occasions give her gifts, I consider demonstrates that the offender effectively groomed the victim in relation to the offending. The offender started his offending with less serious conduct, such as massaging the victim’s feet and massaging her vagina over on top of the underwear before proceeding to escalate his conduct to include massaging or rubbing of the vagina under the underwear to engaging in penile/vaginal intercourse. The offender was able to convince the young victim not to reveal the offending through providing her with gifts and telling her not to tell anyone, because it was “their secret”.

13. The offences I am to sentence the offender for occurred over an approximate two year period, although I am satisfied that sexual misconduct occurred towards the victim until she began to menstruate.

14. A powerful and moving Victim Impact Statement was read to the Court by the victim at the sentencing hearing last week. Clearly, as is to be expected, the offender’s crimes have had a significant effect upon the young victim. It is well known by this Court that sexual offending against young children can have adverse effects upon them which last a lifetime.

Objective seriousness

15. I turn then to my assessment of the objective seriousness of each of the offences. There are a number of common factors relevant to my assessment of the objective seriousness of each of the offences. The offender had engaged in the grooming of the victim, as I mentioned, when finding the facts upon which the offender is to be sentenced. The evidence suggests the offender was particularly careful, but somewhat brazen in committing the offences in the victim’s father’s home, but in a manner designed to restrict the likelihood of detection. The victim was very young in relation to each of the offences. In count 1 she was between six and seven years of age, and in relation to counts 2 and 3 she was a little under seven years of age. The offender was a man in his late middle-age, and the age difference between the two of them was obviously very considerable. The age of the victim at the relevant time in relation to all the offences was well below the statutory maximum age for the offences, being 16 years.

16. The offender is not entitled to be sentenced on the basis that the three offences of which he has been found guilty were isolated instances of sexual misconduct against the victim, in light of my acceptance of the evidence of other sexual misconduct by the offender towards the victim.

17. In relation to count 1 the touching of the victim’s vagina was over the top of her underwear. It lasted for a number of minutes, noting that it was preceded by a foot massage. I consider that the objective seriousness of this particular offence is below a notional mid-range level of objective seriousness for such offences. Although I do not consider, given the age of the victim and the age of the offender, that the offence is at the bottom of the range of objective seriousness.

18. Count 2 involved the offender massaging on her actual vagina involving skin on skin touching. I consider that the objective seriousness of that offence is within the mid-range of objective seriousness.

19. In relation to the third offence, while there is no hierarchy of sexual intercourse so far as the law is concerned, it is generally accepted that penile/vaginal intercourse is more serious than digital penetration or cunnilingus. I note that the intercourse was unprotected intercourse that occurred when the victim was not of sufficient age to become pregnant. I also note that the victim’s vagina was extremely sore later on in the day that the intercourse occurred. I assess the objective seriousness of the third offence as being in the upper level of the mid-range of objective seriousness.

20. The Crown, in written submissions, submitted that there are a number of aggravating factors under s 21A (1) of the Crimes (Sentencing Procedure) Act established here. The Crown submitted that the aggravating factor in s 21A (1) (g) was established being that the injury and emotional harm caused by the offences was substantial. In that regard the Crown relied upon the contents of the Victim Impact Statement, which I referred to earlier.

21. The Victim Impact Statement, as I indicated earlier, is a moving and powerful document. It states that years after these offences the victim is still having memories and flashbacks in relation to the offences and sexual misconduct which the victim experienced at the hands of the offender. It must be remember though that an aggravating factor under s 21A has to be established beyond reasonable doubt before it can be taken into account when sentencing an offender. This particular aggravating factor can only be taken into account where the physical or emotional injury suffered by the victim is more than would be expected from an offence of the kind that has been committed. In every case of child sexual offending the Court understands, regrettably, that there will be significant emotional harm caused to the victim of such a sexual offence, in particular one involving penile/vaginal intercourse. The Victim Impact Statement is powerful. It is a powerful and moving document. However, I am not satisfied beyond reasonable doubt that the emotional trauma and harm that the victim here has suffered is more than would be expected to be suffered by a young child who is a victim of such offences. For those reasons this particular aggravating factor is not established beyond reasonable doubt.

22. I have, of course, had regard to what I have termed the significant emotional injury caused to the victim of the offences in my assessment of the objective seriousness of each of them.

23. The Crown, in written submissions, further submitted that the aggravating factor in s 21A (1) (l) of the Crimes (Sentencing Procedure) Act, being that the victim was vulnerable, was made out here beyond reasonable doubt. The evidence adduced in the trial established that the victim at the relevant time suffered from Attention Deficit Hyperactivity Disorder and autism. Answers in the offender’s police record of interview suggests that as at the time of the offences the offender was aware that the victim suffered a condition like ADHD and was medicated for that condition. See in that regard the answers he gave at pages 6 and 23 of the record of interview, which was in evidence in the trial.    Given the evidence about her psychological condition and the knowledge that the offender had of it implicit in the answers he gave in his record of interview, I am satisfied that the aggravating factor of victim vulnerability is made out here beyond reasonable doubt. I have, however, in my approach to this factor not had regard to the victim’s age as that is inherent in the offences for which I am to sentence the offender. I have also exercised care to ensure that I do not breach the well-known De Simoni principles in my approach to this particular aggravating factor which the Crown relies upon.

The offender’s subjective case

24. I turn then to the offender’s subjective case. As I observed earlier, the offender’s date of birth is 18 October 1953 so he is currently 67 years of age. He has entered custody and will serve this sentence at a considerably advanced age, although that is not, in relation to offenders who commit child sexual offences, all that unusual. It is frequently the case, as here, that such offences do not come to light for several years after the events when a victim feels able to come forward and complain about the conduct.

25. In terms of the offender’s criminal history, the Crown, in its oral submissions said that it was open to sentence the offender on the basis that he has no relevant criminal history. The Crown, in oral submissions, abandoned its written submission that the offender could not claim on sentence to be of good character and also abandoned any reliance upon s 21A (5) of the Crimes (Sentencing Procedure) Act.

26. There are testimonials before me indicating that the offender has in the past been a person of some general good character. I, therefore, sentence the offender on the basis that he is a person of prior good character; this entitles him to some leniency on the sentence.

Sentence Assessment Report and psych reports –

27. In terms of the written material that is before me concerning the offender I have the following: There is a Sentencing Assessment Report, dated 20 January 2021. A psychological report, dated 14 January 2021 by Bradley Jones, a forensic psychologist. Letters from a Dr Sonja Borski and of Peter Duffy, and testimonials from relatives and friends.

Family background

28. In terms of the offender’s background, a Sentencing Assessment Report records that the offender maintains the support of his mother and sister. He has had two long term relationships in the past, although is currently single. He has two adult children from his first marriage, and he told the author of that report that he has regular contact with them. Further information concerning the offender’s family background is contained in the psychologist’s report. The offender was one of six children, having five sisters. He remains in a very good relationship with his sisters, who remain supportive of him. His mother is currently 89 years of age and he has maintained a good relationship with her. His father abandoned the family when the offender was only eight years of age. The offender told the psychologist that he had had “an adventurous” childhood.

Education and employment history

29. In terms of his education and employment history, the Sentencing Assessment Report records that the offender has been in receipt of a Disability Support Pension since the mid-1990s, following an incident that resulted in a significant back injury. The Sentencing Assessment Report further records that the offender indicated that as a result of his accident he is prescribed medication to manage his pain. That report states that the offender was on medication for a period of 15 years, and two years prior to his entering custody he reduced his intake of medication and is no longer using pain medication.

30. The offender told the psychologist that he had initially been an above average student, but when age approximately 16 he began to associate with delinquent peers and his academic results were negatively affected. He worked in a variety of labouring type employment and suffered significant physical injuries when he was 23 years of age in a motor vehicle accident. He fractured his vertebrae when he was 39, requiring surgery.

Substance use

31. In terms of any substance abuse issues, the Sentencing Assessment Report records that he has had some periods of problematic alcohol consumption in the past.

Psychological/psychiatric history

32. The psychological report records that he has never been diagnosed with a mental health condition or received mental health treatment and denied that he has experienced suicidal ideation. He claims to the psychologist that he was experiencing erectile dysfunction since he suffered a back injury and started taking medication in the late 1990s. Given the evidence from the victim I think that statement is not correct. The offender told the psychologist that between the ages of eight and 12 he had been sexually abused at the local zoo.

33. The psychologist found that the offender was oriented as to time, place and purpose and had a logical thought pattern. No adverse sensory perceptual or significant pragmatic impairment was detected by the psychologist.

Response to supervision if relevant

34. Since being in custody the offender has not incurred any institutional misconduct charges.

Attitude to the offence

35. In terms of his attitude to the offences the offender is recorded in the Sentencing Assessment Report as continuing to deny the offending, which, of course, is his right and stated that he has lodged an appeal against his conviction. In these circumstances there is no evidence of remorse.

The future and risk of re-offending

36. The Sentencing Assessment Report records that the offender has a medium risk of reoffending, but in relation to sexual reoffending he was assessed as being in the below average risk range by a psychologist for Corrective Services, based upon the Static-99R assessment tool, which does not involve a face to face interview with the offender. The psychologist considered that the offender posed a moderate risk for committing general offences.

Imposition of sentence

37. I referred earlier to the fact that the Sentencing Assessment Report and the psychological report contains information about injuries that the offender has suffered to his back. The material from the two doctors that I referred to earlier indicate that he had a significant back injury in the early 1990s and it is clear that that will make his time in custody more difficult than if he did not have such an injury. There is nothing before me, however, to indicate that he will not receive appropriate treatment while in custody.

38. While the offender refuses to acknowledge his guilt in relation to the offences the evidence in the Sentencing Assessment Report, the psychological report and the fact that he is otherwise a person of good character suggests he has reasonable to good prospects for rehabilitation.

39. He will be serving a significant sentence, which is his first custodial sentence as a person in his late sixties and seventies. His back injury will mean that his time in custody is likely to more arduous than it is for other inmates. He is also being sentenced during the COVID-19 era. For those reasons I propose to make a finding of special circumstances when fixing the non-parole period.

40. The offender has been in custody since the date of his arrest, being 12 November 2018. I will backdate his sentence to commence that day in order to take account of the pre-sentence custody.

37. I am to sentence the offender for three offences. The first offence occurred during an entirely separate incident to the other two offences, both of which occurred during the one incident. In relation to the issue of accumulation and concurrency, in my opinion there should be a significant level of accumulation between the sentence that I impose in relation to the first offence and the sentence I impose for offences 2 and 3. Given that the conduct relied upon for offence 2, in effect, led to the sexual intercourse, which grounds the third offence, I am of the view that there should be a significant concurrency in relation to the sentences for those two counts. I will utilise the aggregate sentencing provisions, bearing in mind the approach to accumulation and concurrency which I have just recorded.

38. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community and rehabilitation of the offender.

39. Sexual offending to young children is abhorrent to all right thinking members of our community. Regrettably, this Court is very aware of how frequent such offending is in our community. Young children have the right to enjoy their childhood and grow into adolescence and adulthood without being preyed upon by sexual predators like this offender. This Court condemns in the strongest possible terms the wicked conduct that this offender perpetrated upon the victim of these three offences. Those who commit sexual offences upon young children must receive significant sentences in order to deter both themselves and others in the community who might be minded to commit such offences.

40. The maximum penalties and the standard non-parole periods provided by the parliament reflect the serious nature of the offending. The maximum penalties and standard non-parole periods have been taken into account as a legislative guidepost. It will be seen that I have departed from the standard non-parole period provided for each of the offences. In relation to the first offence I have done so, because of my assessment of the objective seriousness of the offence and my finding of special circumstances. In relation to the second and third offence I have departed from the standard non-parole period principally because of the offender’s age and my findings of special circumstances.

41. The offender, Mr McKenzie, is convicted of the three offences of which he was found guilty by me. I will firstly record the indicative sentences, including the indicative non-parole periods. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

42. The sentences Mr McKenzie will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence and the non‑parole period he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell him the date it starts from, the date it ends and the date when he is first eligible for parole.

43. On the offence contained in count 1 of the indictment there is an indicative sentence of three years imprisonment and an indicative non-parole period of two years.

44. For the offence contained in count 2 of the indictment there is an indicative sentence of four years imprisonment with an indicative non-parole period of two years and eight months imprisonment.

45. For the offence contained in count 3 of the indictment there is an indicative sentence of ten years imprisonment with an indicative non-parole period of six and a half years.

46. I impose an aggregate sentence of 12 and a half years imprisonment with an aggregate non-parole period of eight years and four months. The sentence commences on 12 November 2018 and expires on 11 May 2031. The non‑parole period expires on 11 March 2027.

47. The earliest date Mr McKenzie is eligible to be released to parole is the date of the expiry of the non-parole period which is 11 March 2027. Whether he is, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of his behaviour in prison in determining whether he should be released then or on another date.

48. So on count 1 there is an indicative sentence of three years with an indicative non-parole period of two. On count 2 there is an indicative sentence of four years with an indicative non-parole period of two years and eight months. Count 3 an indicative sentence of ten years with an indicative non‑parole period of six and a half years. There is an aggregate sentence of 12 and a half years with a non-parole period of eight years and four months.

Orders

1. The offender is convicted of the three offences for which he was found guilty.

2. Impose an aggregate sentence of 12 years and 6 months imprisonment with a non-parole period of 8 years and 4 months. The sentence commences on 12 November 2018 and expires on 11 May 2031. The non-parole period expires on 11 Mach 2027.

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Decision last updated: 07 April 2021