AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 29 November 2021

R v Mackenzie-Hunter

[2021] NSWDC 740

Sexual offences
CRIME SENTENCE

Citation: R v Mackenzie-Hunter [2021] NSWDC 740
Court: District Court of New South Wales
Date: 29 November 2021
Judge: Bourke SC DCJ

Background

The offender, a 45-year-old man living in Surry Hills and receiving a disability pension, used a classified advertising website and a Skype account to communicate with a person he believed to be a 14-year-old girl. The "girl" was in fact an undercover investigator from the Child Exploitation Internet Unit, operating under an assumed online identity. Contact began on 23 November 2020 and continued until 6 January 2021.

The offender had posted an advertisement seeking a young girlfriend, explicitly noting that "younger okay." Once contact was made and the assumed identity disclosed she was 14, the offender continued the relationship. Communications escalated from general conversation to explicit sexual content, including the offender sending an image of his erect penis, instructing the assumed identity to masturbate, and requesting she send nude images of herself. He repeatedly encouraged secrecy.

The offender was charged with one count of using a carriage service to transmit communications to a person he believed to be under 16, with the intention of making it easier to procure that person to engage in sexual activity with him. He pleaded guilty at the earliest opportunity.

  • What sentence was appropriate for this offence under s 474.27(1) of the Commonwealth Criminal Code 1995, given the offender's personal circumstances and early guilty plea?
  • What weight should be given to the utilitarian value of an early guilty plea in a Commonwealth offence where no statutory discount is prescribed?
  • What role did the offender's mental health, cognitive difficulties, and background play in the assessment of moral culpability and prospects for rehabilitation?

Decision

Bourke SC DCJ imposed a head sentence of two years and nine months imprisonment. The maximum penalty for the offence is 15 years, which the court acknowledged as an important sentencing guidepost. A 25% discount was applied for the utilitarian value of the early guilty plea, consistent with the approach taken in cases such as ZZ v R [2013] NSWCCA 83 and Hasan v R [2010] VSCA 352.

The court found the offence to be serious. The offender had initiated contact, created a Skype account specifically to pursue the relationship, and had persisted in sexual communications over a period of weeks. He had also sought to suppress discovery by urging the assumed identity not to tell anyone about him, acknowledging he "could get in trouble" because of her age.

The offender's personal circumstances, including significant mental health difficulties, cognitive impairment, a deprived background, and a lack of prior relevant offending, were taken into account. These factors moderated his moral culpability to some extent, though the court did not treat them as displacing the need for a meaningful period of custody.

The court ordered that the offender be released after serving 18 months on a recognisance release order, with the balance of the sentence to be served under supervision in the community, subject to conditions.

Orders Made

  • Head sentence of two years and nine months imprisonment
  • Release after serving 18 months (recognisance release order), with the offender eligible for release on 27 July 2022
  • Conditions of recognisance release order:
  • Be of good behaviour (including not using illicit drugs)
  • Be subject to supervision by a Community Corrections Officer
  • Obey all reasonable directions of Community Corrections
  • Not travel interstate or overseas without written permission from Community Corrections
  • Undertake treatment or rehabilitation programs as directed by Community Corrections
  • Security by recognisance set at $100
  • Forfeiture Order made pursuant to s 23ZD of the Crimes Act 1914

Key Takeaways

  • A 25% discount for the utilitarian value of an early guilty plea was applied to a Commonwealth offence under s 474.27(1) of the Criminal Code 1995, consistent with established appellate authority, even in the absence of a statutory discount provision.
  • The District Court treated the 15-year maximum penalty as a significant guidepost in calibrating the sentence, reflecting the legislature's assessment of the seriousness of child grooming offences conducted via carriage services.
  • Personal mitigating factors, including diagnosed mental health conditions and cognitive difficulties, can reduce an offender's moral culpability in this type of offence, though they will not necessarily displace the requirement for actual custody.
  • The offence was aggravated by its deliberate and calculated nature: the offender had posted the advertisement, created a new online account to facilitate contact, persisted over several weeks, and actively encouraged secrecy.
  • A recognisance release order allowed part of the sentence to be served in the community under supervision, with conditions requiring treatment programs and compliance with Community Corrections directions.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code 1995, s 474.27(1)
- Crimes Act 1914 (Cth), s 23ZD

Cases
- Hasan v R [2010] VSCA 352
- ZZ v R [2013] NSWCCA 83