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District Court 5 February 2021

R v McKenzie

[2021] NSWDC 82

Sexual offences

Citation: R v McKenzie [2021] NSWDC 82
Court: District Court of New South Wales
Date: 5 February 2021
Judge: Buscombe DCJ

Background

The offender, a man born in 1953, was acquainted with the victim through her father, with whom he lived in the same apartment complex in North Parramatta. The victim, born in May 2005, regularly stayed with her father and came into contact with the offender during his visits to the father's apartment. The offending occurred between May 2011 and May 2013, when the victim was between six and eight years of age and the offender was in his late fifties.

Following a judge-alone trial, Buscombe DCJ found the offender guilty of three offences: two counts of indecent assault upon a child under 16 years (the victim being six or seven at the time), and one count of sexual intercourse with a child under 10 years. The court acquitted the offender of two further offences that had been included on the indictment.

The proceedings reported here are the sentencing judgment that followed the verdict. The court was required to determine the appropriate penalties for each of the three offences and to impose an aggregate sentence.

  • What was the objective seriousness of each of the three offences, having regard to the nature of the conduct, the victim's age, and the broader pattern of offending?
  • What weight should be given to evidence of uncharged acts of sexual misconduct in assessing the facts for sentencing purposes?
  • How should indicative sentences for each count be structured and combined into an appropriate aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

The court found the facts for sentencing beyond reasonable doubt, consistent with the findings made at verdict. The first offence involved the offender touching the victim's vagina over her underwear, following a foot massage, while the victim's father was elsewhere in the apartment. The court assessed this offence as below the notional mid-range of objective seriousness for such offending, though not at the bottom of the range given the ages of both the victim and the offender.

The second offence involved skin-on-skin touching of the victim's vagina under her underwear, and was assessed as within the mid-range of objective seriousness. The third offence, penile-vaginal intercourse with the victim shortly before her seventh birthday, was the most serious. The court noted that penile-vaginal intercourse is generally accepted as more serious than other forms of penetration, and that the victim experienced significant pain as a result.

The court accepted evidence of uncharged acts of sexual misconduct as context evidence and found that the offender had groomed the victim over time, using gifts and secrecy to maintain the offending and prevent disclosure. The court held that the offender was not entitled to be sentenced on the basis that the three counts represented isolated incidents. A Victim Impact Statement was also read at the hearing, and the court acknowledged the lasting harm caused by offending of this nature.

Applying the relevant sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW), the court imposed indicative sentences for each count before arriving at a structured aggregate sentence that reflected the totality of the offending without simply accumulating the individual terms.

Orders Made

  • The offender was convicted of the three offences for which he was found guilty.
  • An aggregate sentence of 12 years and 6 months imprisonment was imposed, with a non-parole period of 8 years and 4 months.
  • The sentence commenced on 12 November 2018 and expires on 11 May 2031.
  • The non-parole period expires on 11 March 2027, being the earliest date the offender is eligible for release to parole.
  • Indicative sentences: Count 1, 3 years (non-parole period 2 years); Count 2, 4 years (non-parole period 2 years and 8 months); Count 3, 10 years (non-parole period 6 years and 6 months).

Key Takeaways

  • The District Court treated evidence of uncharged acts of sexual misconduct, accepted as credible at trial, as relevant to sentencing, finding that it demonstrated a pattern of grooming and escalating offending rather than isolated incidents.
  • Grooming conduct, including the use of gifts and instructions to maintain secrecy, was treated as an aggravating feature that informed the court's assessment of the objective seriousness of each offence.
  • Where an offender is convicted of multiple child sexual offences arising from related but distinct incidents, the aggregate sentencing regime under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to set indicative sentences for each count before arriving at a total that reflects the overall criminality without simply adding the individual terms.
  • Under s 66A(1) of the Crimes Act 1900 (NSW), sexual intercourse with a child under 10 years attracted a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years; the court imposed an indicative sentence of 10 years for that count, reflecting the victim's very young age, the nature of the act, and the physical harm caused.
  • A victim's age being well below the statutory threshold for an offence is a factor that bears on objective seriousness, even where the offence already requires the victim to be under a specified age.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1) (sexual intercourse with a child under 10 years), 61M(2) (indecent assault in circumstances of aggravation, child under 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(1)(g), 21A(1)(l), 21A(5) (sentencing purposes, aggravating factors, and aggregate sentencing)

Cases: No cases were cited in the portions of the judgment provided.