Beech-Jones CJ at CL at [1]; Hamill J at [2]; N Adams J at [21].
Decision:
(1) Crown appeal allowed.
(2) The aggregate sentence imposed by Judge Bourke SC on 15 October 2021 is quashed; in lieu thereof, the respondent is sentenced to an aggregate sentence of 12 years’ imprisonment to commence on 23 May 2019 and expire 22 May 2031 with an aggregate non-parole period of 8 years to expire on 22 May 2027.
Catchwords:
CRIME – appeals – appeal against sentence – Crown appeal on sole ground of manifest inadequacy – eight serious sexual offences committed on five victims aged between 15 and 20 years over a period of one year – 12 similar offences on five Form 1s – pattern of offending where victims approached offender’s piercing business as customers – relationship of trust or victims in vulnerable position – offender with chronic drug abuse and mental health problems – application of principle of totality – appeal allowed – aggregate sentence and non-parole period increased – special circumstances
[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.
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AGLC
R v McKenzie [2022] NSWCCA 119
Case
[2022] NSWCCA 119
Decision Date
CaseChat Overview and Summary
The appellant, McKenzie, was convicted of a series of serious sexual offences against five victims aged between 15 and 20 years over a one-year period. McKenzie had previously been convicted of 12 similar offences on five Form 1s. The court heard that McKenzie's offending pattern involved approaching victims who were already in a vulnerable position or in a relationship of trust with the offender. McKenzie had significant issues with chronic drug abuse and mental health problems. The Crown appealed against the sentence, arguing it was manifestly inadequate. The appeal was heard in the Court of Appeal. The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the principle of totality was appropriately applied in the sentencing process.
The court considered the nature and severity of the offences, the pattern of offending, and the vulnerabilities of the victims. The court also took into account McKenzie's chronic drug abuse and mental health problems. The court found that the sentence was manifestly inadequate and did not reflect the seriousness of the offending. The principle of totality was not appropriately applied in the sentencing process. The court found that an aggregate sentence and non-parole period were appropriate given the pattern of offending and the vulnerability of the victims. The court increased the sentence and non-parole period, allowing the appeal.
The final orders of the court were that the appeal was allowed, and the sentence and non-parole period were increased. The court noted that the special circumstances of the case, including the pattern of offending and the vulnerability of the victims, warranted a more severe sentence. The court also noted that the principle of totality was appropriately applied in the re-sentencing process. The increased sentence and non-parole period reflected the seriousness of the offending and the need to protect the community.