The Queen v MacKenzie - [2007] NZCA 72

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA298/06
[2007] NZCA 72
THE QUEEN
v
JOHN TE HUIA MACKENZIE
Hearing:6 March 2007

Court:Chambers, Gendall and Heath JJ
Counsel:G Boot for Appellant

P K Feltham for Crown

Judgment:16 March 2007 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentences imposed in the District Court are set aside and sentences of three years six months imprisonment are substituted on each charge, to be served concurrently.

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REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       Following a trial in the District Court before Judge Clark and a jury, Mr MacKenzie was found guilty on two charges of sexual violation by unlawful sexual connection. The charges arose out of events that occurred in June 2005 on a day when Mr MacKenzie was caring for young children.
[2]       The first sexual connection occurred while Mr MacKenzie was playing with an eight year old girl. He pulled down her pants and proceeded to lick her anus more than once. That incident was interrupted by a telephone call, during which time the victim began to put her clothes back on. When the call ended, Mr MacKenzie threatened her with a jug cord because he wanted to continue his activity. Similar behaviour to that exhibited before the interruption followed. During the course of that incident, penetration of the young girl’s anus was achieved by Mr MacKenzie’s tongue.
[3]       Not long after the events occurred, the girl’s mother returned home. The young girl complained to her mother. The incident was reported to the Police. As a result of the investigation that followed, Mr MacKenzie was charged.
The District Court sentencing
[4]       At sentencing, Mr Boot, for Mr MacKenzie, accepted that imprisonment was inevitable. The only issue was the length of the term of imprisonment to be imposed. Both charges carry a maximum penalty of 20 years imprisonment.
[5]       Judge Clark identified breach of trust, the vulnerability of the victim, the threat of violence and repetitive offending as aggravating features arising from the offending. The Judge acknowledged that, while two offences were committed, they occurred within a relatively short period of time and involved a single course of conduct, interrupted only by the telephone call. Personal aggravating factors arose from the past criminal history of Mr MacKenzie. However, none of that offending was of a sexual nature. The Judge referred to the victim impact statements, saying the experience was causing difficulty for the young girl in relating to adult males, including her father.
[6]       The only mitigating factor identified by the Judge was Mr MacKenzie’s comparative youth. At the time of sentencing he was 21 years old.
[7]       Judge Clark regarded the need for denunciation of conduct of this type against vulnerable victims as the primary sentencing goal. She chose a starting point of three and a half years imprisonment. That was increased to a period…

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 The Queen v MacKenzie

Details

AGLC: The Queen v MacKenzie [2007] NZCA 72
Case: [2007] NZCA 72
Decision Date: 16 March 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the sentences imposed by the District Court on John Te Huia MacKenzie. MacKenzie had been found guilty on two charges of sexual violation by unlawful sexual connection. The Court of Appeal considered the arguments from both parties regarding the severity of the sentences imposed. MacKenzie's counsel argued that the sentences were excessive and that the two incidents should be considered as part of a single course of conduct, while the Crown's counsel submitted that the sentences were within the range available to the sentencing Judge. The Court of Appeal found that the District Court had erred in its approach to determining the starting point for sentencing and that the sentences imposed were manifestly excessive. The Court of Appeal allowed the appeal and set aside the sentences imposed by the District Court. In their place, the Court of Appeal imposed sentences of three years six months imprisonment on each charge, to be served concurrently.

Orders