R v Jon Stephen McKENZIE

Supreme Court of NSW|2011-11-04|Before: Schmidt J, Ms J

Judgment 1The offender, Jon Stephen McKenzie, stands for sentence for the murder of his wife, Rhonda Mary Anne McKenzie. He was arrested on 3 November 2010 at his home, where he was found with his wife's body. He admitted his offence and later pleaded guilty to the charge in the Grafton Local Court. 2The maximum penalty for the crime of murder is life imprisonment. Section 61 (1) of the Crimes (Sentencing Procedure) Act 1999 ('the Act') requires that a sentence of life imprisonment be imposed if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown did not seek the imposition of such a sentence in this case. 3The Parliament has also imposed a standard non-parole period of 20 years imprisonment under s 54A of the Act for an offence of murder falling in the middle of the range of objective seriousness of such offences. A non-parole period is the minimum period that an offender will serve in prison for the offence, before being released on parole for the balance of the sentence. Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, even in the case of a plea, in the way recently discussed in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154. 4Also to be taken into account is s 44(2) of the Act, which specifies that "[t]he balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more". If there is to be any adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628).

The Evidence 5The parties agreed on the facts. Also tendered were two documents handwritten by the offender; a report by Dr Stephen Allnut, a psychiatrist who had examined the offender; and the offender's criminal record. The offender did not give evidence, but his instructions to his counsel were that he believed that he deserved to have the maximum penalty for the offence, life imprisonment, imposed upon him. 6The evidence showed that the offender has no prior criminal history of any kind. The agreed facts included that:

The offender and his wife had three children, the youngest aged 16 years at the time of the offence. None of them were, however, living with their parents, at their property at Lawrence, where the offence was committed.
The offence was revealed soon after it was committed when the offender twice telephoned a family friend and asked him to come over, because he had "done something terrible".
The offender was found sitting in the garage, crying and rocking backwards and forwards, calling out that he had done something terrible. He had black cables tied around both of his wrists and was later found to have small abrasions on his arm and foot. He said things like: "I only wish I would do away with myself. I couldn't even do that. I'm worse than an animal. I killed my wife. What will the kids think of me." "I killed Rhonda. I'm an animal. I killed Rhonda. I couldn't even do away with myself. I didn't have the guts to do it. I killed the person I loved."
The offender was arrested by police soon afterwards. He told them that he had killed his wife using his hands. Mrs McKenzie's body was found on a bed. She had several areas of light blood staining over her arms and the front of the cardigan she was wearing.
In the study police found straps strapped around a bed and an open packet of black cable ties on the desk. The offender's DNA was found on the straps.
There was a handwritten suicide note found in the study, which had words crossed out at the end and the following words written: "It's happened differently now, how cursed I am. You can all curse me children I deserve it. I don't know what's wrong with my mind to do what I did. I hope your lives are happy, and remember your mother as the good lady she was."
A post mortem examination of Mrs McKenzie's body established that the cause of death was smothering. There were multiple abrasions and bruising around her cheeks, mouth and chin; multiple bruising to her head, neck and arms; several bruises on her torso, right leg and left foot; a bruise on her left hip; as well as an abrasion on her lower back. There were multiple internal abrasions in her mouth. Her injuries were consistent with attempts at restraint by another person and external pressure when her lips were forcibly pressed against her teeth. Mrs McKenzie had a blood alcohol reading.
The offender later gave an account of what had occurred to a friend, while crying. He showed a lot of remorse and appeared genuine.
Police enquiries of friends, neighbours and relatives elicited many comments that the offender seemed depressed and that his depression had worsened in the weeks leading up to the offence.
Police had received no prior reports of domestic violence between the offender and his wife. 7In his report, Dr Allnut recounted that he examined the offender, who had suffered from arthritis which had led to depression and ultimately retirement from work, four to five years before the offence. The offender and his wife had been married for 22 or 23 years, but had separated for six months some years before the offence, as the result of the effects of the depression he was then suffering. They later resumed their relationship, which was normal, and while there had been occasional arguments, there was no domestic violence or aggression. 8Over time the offender's arthritis deteriorated and he began receiving medication by intravenous injection. In the period leading up to the offence, the offender's arthritis worsened, as did the offender's mood. While he had never abused alcohol or taken drugs, he increased his alcohol consumption. Eventually, he developed suicidal thoughts and began contemplating ways of ending his life. Thoughts of feeling worthless became overwhelming, his grooming deteriorated, he began missing meals, had trouble socialising and his relationship with his wife also deteriorated, although there were no particular arguments or resentments. His wife urged the offender to return to the doctor about his arthritis, but he could not be bothered. 9The offender reached the point where he decided on a means of suicide. He wrote a suicide note to explain his decision to his wife and children and purchased materials to assist him in that suicide. 10The day of the offence was not out of the ordinary. The offender had reduced his alcohol consumption and drank only four beers that afternoon. He fixed a problem with the car and while his memory of the immediate lead up to the offence was patchy, he remembered having an argument with his wife, but not its cause. It was not violent. He recalled raised voices, taking four or five steps towards his wife in the kitchen, putting a hand up her back and over her nose and mouth for some time, her hitting him and then slumping to the ground. He knelt beside her and realised that she was dead. The offender could not recall what he was thinking or feeling at the time. It did not occur to him to do CPR. 11The offender recalled that he began to cry, he felt sorry for his wife and struggled to carry her to bed, where he covered her. He intended then to take his own life and went to the den, where he tried, but failed to commit suicide. He then called a friend, who came to him and called the police. 12Since his arrest the offender had received treatment, with the result that his mood had improved, although feelings of worthlessness persisted, as did problems with his arthritis. He felt remorse for what he had done to his wife and children. He was not interested in pursuing any mental illness defence, because he felt that he deserved to go to prison and did not wish any delay. 13Dr Allnut noted information obtained from a friend who had known the offender and his wife for over 20 years, who had noticed that the offender was depressed for some time and that this had worsened in the few months before the offence. Dr Allnut also noted information obtained from the offender's children. His daughter said that their parents had separated in 2002 or 2003, after their father developed arthritis, but they had got back together before his retirement in 2005. While everything was good for a while, things deteriorated and they saw a marriage counsellor. While the offender never used to drink, he began drinking in 2003 or 2004 and this got progressively worse. One of his sons said that his mother also increased her alcohol consumption. Their relationship deteriorated and he left home. The offender was depressed and spoke about suicide. His other son gave a similar account. Dr Allnut also referred to information obtained from a number of other sources, who corroborated these accounts. 14Dr Allnut's opinion was that:
The offender's history was consistent with an earlier depressive condition for which he was treated and from which he recovered. Increased interpersonal conflict with his wife and to some degree his children, later saw further depressive symptoms emerge. At the time of the offence those symptoms were consistent with the existence of a depressive disorder. There were reasonable grounds for thinking that the offender was then experiencing a disease of the mind, as well as an underlying condition causing an abnormality of the mind.
There was an absence of significant evidence of impulsive aggression to his wife or others, other than a degree of verbal abuse and no account of prior planning. At the time of the offence the offender described an argument and behaviours which caused his wife's death.
It was unlikely that the offender's depressive mood would have been of a nature or severity that would have significantly impaired his capacity to form intent.
His mental state was not of such a nature and severity that it would have impacted on his capacity to understand or know the nature and quality of his actions and he would have maintained the capacity to understand that his behaviour could have resulted in harm to his wife.
There was no evidence of any perceptual disturbance or delusional beliefs at the time of the offence.
The offender's depressive disorder would not have been of a nature and severity that it would have impacted to the extent that:
- he was unable to appreciate or realise the consequences of his actions;
- it would have impaired his capacity to know what was happening, or to be aware that he was harming his wife;
- he was incapable of reasoning with a moderate degree of sense and composure about whether the contact was wrong.
The offender's comments and behaviours immediately after the offence showed that he clearly understood what he was doing. He expressed emotions and thoughts consistent with an understanding that his behaviour was wrong. One could reasonably assume that his depressive symptoms immediately after the offence were similar to those present at the time of the offence.
The offender had no defence of mental illness, even though he suffered a disease of the mind. It did not cause a defect of reason and was not of a nature or severity to impair his capacity to understand the nature and quality of his acts or their wrongfulness, causing him not to be capable of reasoning with a moderate degree of sense and composure about whether his conduct was wrong, as perceived by reasonable people.
The offender's depressive disorder was not of a nature and severity that it impaired his capacity to understand or judge right from wrong. His comments immediately afterwards were consistent with a knowledge of wrongfulness.
It is not uncommon for individuals with depressive disorders to experience increased levels of irritability and, as a consequence, to be more vulnerable to reacting impulsively in an aggressive manner. There was a suggestion that on previous occasions when depressed, the quality of the offender's relationship with his wife had deteriorated. It was feasible to consider that immediately preceding the offence, the offender had engaged in some form of altercation with his wife and had reacted in response, with the depression contributing to an impulsive, aggressive response.
The offender was remorseful for his actions. 15The offender's handwritten documents, one a suicide note and the other written some time after the offence, support these opinions. The words written immediately after the offence, which I have quoted in part, reveal the offender's understanding at the time of the offence of what he had done, that it was wrong, and that he was remorseful. That is consistent with the evidence of the other steps which he soon took to reveal the offence and with what he then said to the friend who responded to his call for assistance. The later account which the offender wrote, explained his ongoing problems with arthritis, the pain he was suffering, the feelings of depression which resulted and their consequences for his day to day life and his relationship with his wife. 16The evidence shows that the offender does not seek to excuse his behaviour, which he finds impossible to explain, but it also reveals that he does have somewhat limited insight into the events which caused his wife's death. On the one hand he wrote in his later explanation that there was 'not a violent argument, raised voices but no violence'. He gave Dr Allnut a similar account. On the other hand he described a violent struggle, after approaching his wife from behind and then covering her nose and mouth with his hands. During their struggle Mrs McKenzie hit him four or five times on the shoulder, the side of the head, the forehead and the right ear and they then fell to the ground together, where he lay beside her crying with remorse, before he felt for her pulse. He believed that she was dead. He then carried her to bed, before attempting to end his own life. The offender said that he took this step because he was 'so shocked I was capable of what I did'. He then wrote an additional paragraph to the suicide note he had earlier prepared, which I have already quoted and unsuccessfully attempted to take his life, before calling for help.

The parties' cases 17The only issue lying between the parties was whether the evidence established that the offence fell at the lowest end of the range of such offences, that being the case advanced for the offender, or only towards the bottom of that range, that being the Crown's case.

The Court's sentencing task 18The Parliament requires that the sentence imposed on the offender be determined having in mind the purposes of sentencing set out in s 3A of the Act. Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 19The sentence imposed must reflect the gravity of this offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). The offender's guilty plea must be taken into account (s 22). Section 21A also requires that in determining that sentence, consideration be given to specified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of the offence. The sentence must also ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the crime committed (see R v Scott [2005] NSWCCA 152 at [15]). Consideration must also be given to general and specific deterrence in the sentence imposed.

The seriousness of the offence 20The offender smothered his wife using his hands, while she struggled with him for her life. That this was a violent offence cannot be doubted. On the case advanced on his behalf, notwithstanding the offender's instructions that the maximum penalty should be imposed upon him, such a sentence could not be imposed, given the Court's obligation to assess the objective seriousness of the offence on the evidence, as well as taking into account what the evidence revealed about the offender's subjective circumstances. The Crown's submission was also that this was not a case where the maximum penalty could be imposed. I am satisfied that those submissions must be accepted. The task imposed upon the Court by the Parliament does not leave open the conclusion that the sentence which the offender sought, could be imposed upon him. 21The maximum sentence is reserved for extreme offences of the kind described in s 61, to which I have already referred. As discussed in R v Lewis [2001] NSWCCA 448 at [60]: "Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4, Harris at 423." 22Given the evidence as to the objective and subjective matters which must be taken into account in sentencing this offender, I am satisfied that it cannot be concluded that this is such a case. 23I am not, however, able to accept that objectively, this offence falls at the very bottom of the range of such offences, given the evidence that Mrs McKenzie's death followed a struggle with the offender in which she vigorously defended herself from his violent attack. While the struggle may have been of a relatively short duration, even in his own handwritten documents the offender described it as one in which Mrs McKenzie repeatedly hit him, as she fought for her life, as he was suffocating her with his hands placed over her mouth and nose, while standing behind her. Given the evidence as to the injuries which Mrs McKenzie sustained in that struggle, it is apparent that this was not an easy or painless death, but one which she fought against valiantly, albeit unsuccessfully, while the offender used considerable force to achieve his aim. 24The evidence did establish that this was not a mid-range offence. It was not premeditated. The offender had previously determined to end his own life. He was suffering from depression, a mental illness which was the result of an ongoing, painful and debilitating physical condition. Both illnesses worsened in the period immediately before the offence. On the evidence while his mental condition did not deprive the offender of the ability to understand the consequences of his actions, it did leave him vulnerable to reacting impulsively and aggressively. The Crown properly accepted that this abnormality of mind reduced the offender's moral culpability for his offence (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346). The evidence does not leave open to doubt, however, that the offender acted with an intent to kill Mrs McKenzie, rather than with an intent only to cause her grievous bodily harm, or that he acted with merely reckless indifference to human life. This must be taken into account in assessing the seriousness of the offence. 25As the Crown accepted, while the evidence suggests that the offender's intention to kill was one which existed only for a short period of time and was immediately regretted once achieved, it nevertheless persisted for a sufficiently long period to enable the offender to succeed in achieving his end, despite Mrs McKenzie's struggle for her life. There is no suggestion that Mrs McKenzie provoked his attack. Despite being affected by alcohol, her various injuries showed how she tried unsuccessfully to defend herself, as the Crown submitted, from a senseless, prolonged and merciless assault. The result was that the offender deprived his wife, the woman he says he loved, of her life and their children of their mother. That is relevant to note, because, as discussed in R v Lewis: "67 ... in my opinion the degree of harm which the offender knows will be caused by the offence is highly relevant to the culpability of the offender. In this case, quite plainly the applicant knew that the death of Ms. Pang would deprive five children of their mother, and prima facie that is serious harm, in addition to the death of Ms. Pang, which the applicant knew would be caused by his offence. This is not to say that the crime is more serious because Ms. Pang was in some way more worthy than other possible victims, merely to recognise the harm caused to children by the loss of their mother; and to recognise that where the offender knows that this harm will be caused, that can be relevant to the offender's culpability. In my opinion, the sentencing judge made no error in this respect." 26That this was a most serious offence, cannot be doubted.

Aggravating factors 27The various aggravating factors specified in s 21A do not arise for separate consideration in this case.

Mitigating factors 28On the evidence, the parties' agreement that the following mitigating matters specified in s 21A are relevant to take into account must be accepted. They are: "(b) the offence was not part of a planned or organised criminal activity, ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" 29The evidence does not leave any doubt that the offender has accepted responsibility for his unpremeditated actions. He has repeatedly expressed his distress and remorse at what he has done to his wife and children. This awful offence was entirely inconsistent with his prior good character. Regrettably it was his first offence, committed when aged 64 years. That he has good prospects of rehabilitation and is unlikely to re-offend, is also apparent. He has responded to the treatment he has received for his mental condition, the result of the effects of a debilitating physical illness. That condition played an obvious contributing role in this offence.

Age 30It was also common ground that some account must be taken of the offender's age, a matter not separately specified in s 21A. Such a consideration arises particularly where the circumstances are such that an offender may spend the whole of his remaining life in custody. In R v Holyoak (1995) 82 A Crim R 502 it was observed, for example, at 507-08: "I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free. ... " 31Accordingly, I accept the offender's age and its consequences are factors to be taken into account in determining sentence.

Discount on Sentence 32It was also common ground that it is within my discretion to grant the offender a discount of 25%, for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 33I also accept those submissions. T he offender immediately confessed his guilt when he summoned help; he entered his plea in the Local Court and adhered to his plea in this Court. The purpose of such a utilitarian discount is, as explained by the Chief Justice, namely, that it reflects the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses, especially victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. These benefits must be identified by a trial judge when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] - [123]). 34In this case I am satisfied that given the offender's early plea, he must have a discount of 25% on this account.

Standard non-parole period and comparable cases 35As I have observed, the standard non-parole period of 20 years for a mid-range offence is one of the factors which must be taken into consideration in determining the sentence to be imposed, in accordance with the approach discussed by the High Court in R v Muldrock . For reasons which I have explained, the standard non-parole period is not the appropriate sentence for this offence. The parties referred to a range of cases in submissions. I found most of them to be of relatively limited assistance, given the very significantly different factual circumstances involved in those cases. 36The parties were agreed, however, that some assistance might be found in the judgment given in R v Kiseljev [2004] NSWSC 1030, where the offender was sentenced to a term of imprisonment of 16 years, with a non-parole period of 11 years after a plea of guilty. That offence was committed by a 64 year old man, who had murdered his 22 year old wife, in an unpremeditated violent attack, which resulted in the victim sustaining multiple, extensive injuries. The cause of death was asphyxia and blunt trauma to the head and trunk, the result of an angry response to the actions of the deceased, which were found to have involved a degree of provocative conduct. The accused had no prior criminal history and was found to be suffering from depression and a moderate to severe adjustment disorder, due mainly to the fact that he was facing the charge. He was otherwise a person of good character, who had shown remorse and entered a plea, for which he received a 20% discount. 37It must be accepted that this offence bore some similarities to that dealt with in R v Kiseljev , but equally, there were various significant differences. For example, there was here pre-existing illness, no explanation for the offender's attack, and no suggestion of any provocation, but there were also less serious injuries done to Mrs McKenzie, prior to her death. It follows that while this judgment was of some assistance, in the end result the sentence imposed in this case must be determined in the light of its own facts.

Special circumstances 38In this case, I am also of the view that there should be a finding of special circumstances warranting a small reduction in the proportion of the sentence to be represented by the non-parole period. This reflects that this is the first offence which this now 65 year old man has committed; that he is serving his first time in custody; and that he is unlikely to offend again, given the contribution played by his depressive illness, for which he is being successfully treated. In the result I am satisfied that this reduction in the usual statutory ratio will ensure an appropriate period of supervision of the offender on parole, after release and that the period of imprisonment imposed will still sufficiently reflect necessary considerations of deterrence and retribution in the sentence imposed.

Victim Impact Statement 39From what I have said about the facts, it will readily be apparent that the circumstances of this offence are of a most tragic kind. A victim impact statement was received from the offender's daughter, Alicia McKenzie. There she spoke eloquently of her mother and her life and the ongoing painful impact which her untimely, awful death has had on her and her two younger brothers. It is not possible for me to convey the depths of the feelings and emotions which Ms McKenzie described. These proceedings cannot make good the senseless loss of a devoted mother, or what Mrs McKenzie's children have each suffered as a result. Nevertheless, the Court can extend its deepest sympathy to them and express its hope that when these proceedings are over, they may be given some peace of mind by an understanding of what the evidence has revealed about how that loss came about and how our society has dealt with their mother's death and their father's offence. 40In making these comments, I note that the law as to the receipt of victim impact statements is well settled and that I have adhered to that approach in receiving the statement provided in this case. In R v Tzanis [2005] NSWCCA 274, five members of the Court of Criminal Appeal considered the approach established in R v Previtera (1997) 94 A Crim R 76, which has since been followed. They concluded that approach must be adhered to. That means that an unsworn, untested victim impact statement may not be taken into account in sentencing the offender, for reasons which were explained at length by Hunt CJ at CL in 1997 and which I will not deal with further, in this case .

Conviction and sentence 41Having considered all of the matters I have mentioned, I have concluded that but for the utilitarian value of the offender's plea, I would have imposed a head sentence of imprisonment of 19 years. With discount, the sentence is 14 years, 3 months. I will fix a non-parole period of 10 years. 42Account must also be taken of the fact that the offender has been in continuous custody since 3 November 2010. In this case it is appropriate to commence the sentence imposed on the offender from that date. 43Jon Stephen McKenzie I convict you of the murder of Rhonda Mary Anne McKenzie . 44You are sentenced to a term of imprisonment with a non-parole period of 10 years, commencing on 3 November 2010 and expiring on 2 November 2020. I set a balance of term of 4 years, 3 months, which is to commence on 3 November 2020 and to expire on 2 February 2025. You will be eligible for release on parole on 2 November 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2011

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