Citation: R v McKenzie [2021] NSWDC 652
Court: District Court of New South Wales
Date: 15 October 2021
Judge(s): Bourke SC DCJ
Background
The offender operated a body-piercing business in Port Macquarie, trading under the name "Jimmy Jam Piercer Man." Over a period from late 2017 into 2018, he used his studio and business relationships to groom and sexually offend against multiple young female clients, exploiting their trust and vulnerability.
The offender appeared for sentencing on eight offences: three counts of sexual intercourse without consent, three counts of indecent assault, and two counts of aggravated sexual intercourse with a child aged between 14 and 16 years. The aggravating circumstance for the latter two counts was that the offender took advantage of victims being under the influence of a drug. He also asked the court to take into account a further 12 offences listed across five Form 1 documents (a procedural mechanism by which an offender admits additional offences, allowing them to be considered in sentencing without separate prosecution).
The victims included a 17-year-old (KD), a 16-year-old (ID), and at least two other young women. Each victim had initially attended the studio for a piercing before the offender cultivated a personal relationship with them, progressively crossing boundaries. The offending ranged from indecent assault to non-consensual sexual intercourse, in some instances while the offender was intoxicated by methylamphetamine.
Legal Issues
- What individual sentences were appropriate for each of the eight counts, having regard to maximum penalties, standard non-parole periods, and the Form 1 matters?
- What discount, if any, was warranted for the pleas of guilty, given they were entered late and following abandoned trial proceedings?
- How should totality principles be applied to produce an aggregate sentence that reflects the full criminality of the conduct without being crushing?
- Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence.
Decision
Bourke SC DCJ granted a 5% discount for the utilitarian value of the guilty pleas. The pleas were entered after the original trial date had been vacated on 25 March 2021, with the formal pleas entered on 24 July 2021. The modest discount reflected the lateness of the pleas rather than any expression of genuine remorse.
The court sentenced the offender individually on each count, taking into account the Form 1 matters where relevant. For the most serious offending involving victim KD (count 1), the offender pinned her face-down over a couch, placed his weight on her neck and torso, and proceeded despite her repeated requests to stop. His hand was around her throat during the assault. The court treated this and related counts as among the most serious matters before it. Counts 7 and 8, involving victim MC, attracted individual sentences of 5 years 2 months (with a non-parole period of 3 years) and 4 years 9 months (with a non-parole period of 2 years 9 months) respectively, reflecting their gravity.
Where multiple counts arose from a single incident, the court ordered them to run largely concurrently, consistent with established sentencing principles. The court then applied totality principles under the Crimes (Sentencing Procedure) Act 1999 to arrive at an aggregate sentence that addressed the purposes of sentencing in section 3A of that Act while avoiding a result that would be disproportionately crushing.
Orders Made
- Total sentence of 10 years imprisonment, comprising a minimum (non-parole) term of 6 years and an additional term of 4 years.
- Sentence dated from 23 May 2019 (the date of arrest).
- Eligible for parole on 22 May 2025; head sentence expires 22 May 2029.
- Individual sentences imposed on each of the eight counts, with varying concurrent and partly cumulative arrangements.
- Recommendation that the offender's laptop and mobile phone be returned to his solicitor, subject to removal of any illegal material.
- One matter on the Form 1 (H-number ending 370, sequence 2) noted as withdrawn.
Key Takeaways
- A 5% utilitarian discount for guilty pleas is appropriate where pleas are entered only after an original trial date has been vacated, reflecting the limited practical benefit to the justice system at that late stage.
- Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 serve as important guideposts in sentencing for offences such as sexual intercourse without consent and aggravated sexual intercourse with a child, but do not operate as automatic minimums.
- Where multiple offences arise from a single incident, sentencing courts will ordinarily order those sentences to run largely concurrently, though not entirely so, to reflect the distinct nature of each offence.
- Totality principles require a sentencing court to step back from the aggregate of individual sentences and consider whether the total term properly reflects the overall criminality without producing a result that is crushing to the offender.
- The District Court found that grooming conduct, exploitation of a position of trust, offending against multiple victims over time, and the use of drugs as a situational factor all bore on the objective seriousness of the offences and informed the individual sentences imposed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 3A
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases:
- 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