AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 8 June 2022

R v McKenzie

[2022] NSWCCA 119

Sexual offences
CRIME A PPEALS APPEAL AGAINST SENTENCE 12 SIMILAR OFFENCES ON FIVE FORM 1S APPLICATION OF PRINCIPLE OF TOTALITY APPEAL ALLOWED

Citation: R v McKenzie [2022] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 8 June 2022
Judges: Beech-Jones CJ at CL, Hamill J, N Adams J

Background

The respondent, a man in his mid-thirties who operated a piercing business, pleaded guilty to eight serious sexual offences committed against five victims aged between 15 and 20 years over approximately one year. A further 12 similar offences involving five additional victims were placed on Form 1 (taken into account at sentencing without separate conviction). The offending followed a pattern: victims approached the business as customers and were then sexually abused, exploiting a position of trust or a vulnerability in the victims.

In October 2021, Judge Bourke SC in the District Court sentenced the respondent to an aggregate term of imprisonment, applying special circumstances to reduce the statutory non-parole period ratio. The sentencing judge considered significant mitigating factors, including the respondent's chronic mental health issues, a history of drug dependence, limited prior criminal history, some evidence of genuine remorse, a late plea of guilty, difficult conditions in custody during a lengthy remand period, and a degree of extracurial punishment through public shaming.

The Crown appealed on the single ground that the sentence was manifestly inadequate. No specific error of law was identified; the sole question was whether the total sentence fell outside the range reasonably open to the sentencing judge.

  • Whether the aggregate sentence imposed in the District Court was manifestly inadequate, having regard to the gravity of the offending across five separate victims.
  • Whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion to decline to intervene (for instance, because re-sentencing would be particularly harsh on the respondent).
  • What the appropriate aggregate sentence and non-parole period should be on re-sentencing, including whether the special circumstances finding and the departure from the statutory ratio should be maintained.

Decision

The Court of Criminal Appeal allowed the appeal, though Hamill J expressed hesitation given the careful reasoning of the sentencing judge and persuasive submissions from the respondent's counsel. The majority (N Adams J, with Beech-Jones CJ at CL agreeing) concluded that an examination of the individual indicative sentences revealed only a modest increment when arriving at the aggregate, which failed adequately to reflect the principle of notional accumulation across five separate victims. Because this was not a case of a single act producing multiple victims, the aggregate sentence needed to vindicate the individual dignity of each victim and be proportionate to the totality of the criminality involved.

All three judges agreed that the residual discretion should not be exercised to decline intervention, notwithstanding fresh evidence tendered by the respondent on appeal, and that re-sentencing was required. All three agreed the aggregate head sentence should be increased to 12 years.

The judges diverged on the non-parole period. The majority increased the non-parole period by two years to 8 years, resulting in a ratio of approximately two-thirds of the head sentence. Hamill J, in dissent on this point, would have maintained the 60% ratio settled by the sentencing judge, producing a non-parole period of 7 years and 2 months. His Honour reasoned that the weight given to mitigating circumstances bearing on the non-parole period differs from those relevant to the head sentence, and that the 60% ratio had been reached through flawless reasoning by Judge Bourke SC.

The majority prevailed. The indicative individual sentences nominated by the District Court were kept the same, with the increase achieved through greater notional accumulation.

Orders Made

  • Crown appeal allowed.
  • The aggregate sentence imposed by Judge Bourke SC on 15 October 2021 is quashed.
  • In lieu thereof, the respondent is sentenced to an aggregate sentence of 12 years' imprisonment, commencing 23 May 2019 and expiring 22 May 2031, with an aggregate non-parole period of 8 years expiring 22 May 2027.

Key Takeaways

  • Where multiple victims are each separately targeted and abused over a sustained period, the principle of totality requires the aggregate sentence to reflect a proper degree of notional accumulation; a modest increment on the individual indicative sentences will not suffice.
  • The Court of Criminal Appeal confirmed that the need to vindicate the individual dignity of each victim is not satisfied merely by pronouncing individual indicative sentences for each offence; it must also be reflected in the aggregate term.
  • A sentencing court's reasoning may be careful and technically sound without the resulting sentence thereby falling within the legitimate discretionary range; the absence of an identifiable legal error does not preclude a successful Crown appeal on manifest inadequacy.
  • Mitigating circumstances, including chronic mental health issues, difficult custodial conditions, limited prior offending, and some evidence of remorse, carried significant weight at first instance and were preserved in the indicative sentences on re-sentencing, but did not prevent an increase in the aggregate penalty.
  • In re-sentencing after a successful Crown appeal, the appellate court exercises its sentencing discretion afresh; the majority and minority differed on the appropriate non-parole period, illustrating that the weight accorded to mitigating factors in fixing the non-parole period is a distinct exercise from fixing the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 32, 44, 53A, 54A(2)(b), Pt 3 Div 2
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- AB v R [2022] NSWCCA 62
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Burgess v R [2019] NSWCCA 13
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Cahyadi v Regina [2007] NSWCCA 1
- CMB v The Attorney-General for New South Wales [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Fisher v R; R v Fisher [2021] NSWCCA 91
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2020] NSWCCA 244
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Noonan v R [2021] NSWCCA 35
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v McKenzie [2021] NSWDC 652 (decision under appeal)