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Supreme Court 30 November 2011

R v Jon Stephen McKENZIE

[2011] NSWSC 1460

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER OF WIFE PLEA OF GUILTY NO PRIOR CRIMINAL RECORD FIRST OFFENCE

Citation: R v McKenzie [2011] NSWSC 1460
Court: Supreme Court of New South Wales
Date: 30 November 2011
Judge(s): Schmidt J

Background

The offender pleaded guilty to the murder of his wife at their rural property in Lawrence, NSW. He was arrested on 3 November 2010 after telephoning a family friend and telling him he had "done something terrible." Police found him in the garage in a distressed state, having unsuccessfully attempted suicide. His wife's body was found on a bed; the cause of death was smothering.

The offender had no prior criminal history. Psychiatric evidence established he had suffered from severe depression linked to chronic arthritis, and that his mental state had deteriorated markedly in the weeks before the offence. There was no history of domestic violence between the couple, who had been married for over two decades.

The offender declined to pursue a mental illness defence, expressing a belief that he deserved imprisonment. He cooperated with police, admitted the offence early, and demonstrated consistent remorse throughout the proceedings.

  • What was the appropriate head sentence for the murder, having regard to the standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999 and the High Court's guidance in Muldrock v The Queen?
  • What utilitarian discount applied to the sentence in recognition of the early guilty plea?
  • Were there special circumstances justifying a non-parole period that resulted in a balance of term exceeding one-third of that period?
  • What weight, if any, could be given to the victim impact statement in sentencing?

Decision

Schmidt J assessed the objective seriousness of the offence and the full range of subjective factors before arriving at a head sentence. The mitigating factors included the offender's lack of any prior criminal record, his genuine and early remorse, his cooperation with police, his significant depressive illness at the time of the offence, and his early guilty plea. Aggravating factors were also weighed as part of the overall assessment.

Her Honour determined that, absent the utilitarian value of the guilty plea, a head sentence of 19 years would have been appropriate. A 25% discount was applied in recognition of the plea, producing a head sentence of 14 years and 3 months. This discount reflected the principles established in R v Thomson; R v Houlton and applied consistently with the Muldrock framework.

A non-parole period of 10 years was fixed. The balance of term of 4 years and 3 months exceeded the standard one-third proportion, reflecting a finding of special circumstances. The offender's age, the need for extended supervision on release given his mental health history, and other personal factors supported that finding. The court noted that any adjustment to the balance of term could not reduce the non-parole period below the minimum that justice required.

Regarding the victim impact statement, Schmidt J received the statement from the offender's daughter but confirmed that, consistent with R v Tzanis and the approach established in R v Previtera, an unsworn and untested victim impact statement could not be taken into account in fixing the sentence. The court nonetheless acknowledged the profound grief expressed in the statement and extended its sympathy to the family.

Orders Made

  • The offender was convicted of the murder of his wife.
  • Sentenced to imprisonment with a non-parole period of 10 years, commencing 3 November 2010 and expiring 2 November 2020.
  • Balance of term of 4 years and 3 months, commencing 3 November 2020 and expiring 2 February 2025.
  • Eligible for release on parole on 2 November 2020.

Key Takeaways

  • The Supreme Court applied the Muldrock v The Queen framework, treating the 20-year standard non-parole period as a guidepost to be considered alongside the maximum penalty, rather than as a starting point to be mechanically adjusted.
  • A 25% utilitarian discount applied to an early guilty plea in a murder case, consistent with the principles in R v Thomson; R v Houlton, reduced a pre-discount head sentence of 19 years to 14 years and 3 months.
  • Where special circumstances exist, a sentencing court may fix a balance of term exceeding one-third of the non-parole period, provided this does not reduce the non-parole period below the minimum that justice requires.
  • Under settled NSW authority confirmed in R v Tzanis, an unsworn and untested victim impact statement cannot be taken into account when fixing sentence, even where it is received by the court.
  • Severe depression and chronic illness, while not founding a mental illness defence, remained relevant subjective factors going to the circumstances of the offence and the offender's personal history.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54A, 61(1)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Tzanis [2005] NSWCCA 274
- R v Previtera (1997) 94 A Crim R 76
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Dodd (1991) 57 A Crim R 349
- R v Holyoak (1995) 82 A Crim R 502
- R v Kiseljev [2004] NSWSC 1030
- R v Lewis [2001] NSWCCA 448
- R v Scott [2005] NSWCCA 152