R v McKenzie

Background

1. At the time of these offences, the respondent was 34-35 years of age and traded under the name "Jimmy Jam Piercer Man". Although born in Australia, he was raised in the United States of America. He returned to Australia as an adult but retained his American accent. He had a history of mental health issues and has been diagnosed as having a longstanding "[s]ubstance abuse disorder" and a narcissistic personality disorder. He was a methamphetamine ("ice") addict at the time of the offences. Based on the expert evidence (adduced by the respondent), the sentencing judge was unable to find on the balance of probabilities that he had any other mental illness, such as bipolar disorder, because the symptoms of bipolar disorder mimic the effects of longstanding use of methamphetamine. Significant reliance was placed on the respondent's chronic mental health issues and drug addiction as mitigating factors both before the sentencing judge and in this Court. I shall consider that issue further below.
2. The sexual assaults on the five victims were committed over approximately one year, from 10 March 2018 until 13 April 2019. The respondent committed sexual assaults on the first three victims, two of whom were aged 17 years and one who was aged 16 years, at his piercing studio in Port Macquarie between 10 March 2018 and 9 August 2018. He then moved to Armidale and committed sexual assaults on the fourth and fifth victims, aged 20 years and 15 years respectively, at his residence where he ran his piercing business, between 13 October 2018 and 13 April 2019.
3. The circumstances in which the sexual assaults all occurred were very similar, as can be seen from the summary below. The respondent met all of the young victims when they approached his business to inquire about body piercings. Although the facts are set out in some detail in the reasons of the sentencing judge, it is necessary to set out some of those facts here in order to describe the scale of his offending behaviour in these reasons.
4. The respondent signed an agreed statement of facts from which the following summary is taken.

Count 1: Sexual intercourse without consent - s 61I of the Crimes Act (plus two further counts of sexual intercourse without consent on a Form 1)

1. KD was 17 years of age and in Year 11 at school when she met the respondent. She attended his piercing studio to get a belly button piercing in December 2017. They commenced a sexual relationship. He would smoke methamphetamine in front of her which made her feel uncomfortable. She realised she was losing friends because of her "toxic" relationship with him and on 10 March 2018 she broke up with him at the studio. He did not accept the break-up and told her he loved her and that they should pretend that his de-facto wife did not exist. He became exasperated when she would not say, "I love you" to him in return. He closed the door and started to kiss and undress her even though she said, "I want to go home". She did not feel that she could leave. She said, "stop, stop". While she was saying "stop" he paused for a moment, looked at her and kept going (this led the sentencing judge to be satisfied beyond reasonable doubt that the respondent knew that she was not consenting). She told him to stop at least four times. KD described feeling "frozen" given the respondent's behaviour, his ice consumption, his larger size and the closed door.
2. The respondent put the victim face down on the couch with his weight on the back of her neck and torso and had penile vaginal intercourse with her (Form 1). He then told her to suck his penis which she did (Form 1). He then laid her on her back on the couch and had further penile vaginal intercourse with her. At one stage, he had his hand around her throat. She described it as being not enough to cut off her oxygen but enough to hold her down. He ejaculated inside her whilst not wearing a condom. He drove her home.
3. There was some further contact between them as described in the reasons of Bourke SC DCJ (at [11]).
4. KD reported the matter to police after reading about the other victims in the media.

Victim impact statement - KD

1. In her victim impact statement, KD described how she feared that if she had come forward to complain of the assaults at the time nobody would have believed her. When she first read the articles about the respondent's arrest, she felt instantly sick. She described how she could not get the images of what had occurred to her that night out of her head. She had to take a week off work and entered into a depressive episode. She was unable to shower, brush her teeth or get out of bed. It took her some time to report the matter. The anxiety of talking to the police gave her flashbacks and panic attacks. She became convinced that too much time had passed and nobody would believe her.
2. It was not until 2021, after speaking with her psychologist, that she decided that she needed to report her assaults so she could start to heal from the trauma of them. After she made her statement to police, she found the lead up to the trial to be stressful. The thought of potentially facing the respondent in court drove her to have a breakdown. She was hospitalised in in-patient psychiatric care on four separate occasions. She concluded her statement by stating, "I know Jimmy heard me tell him 'no' that night. He stopped when I said it, looked me in the eye, and then raped me anyway".

Count 2: Indecent assault - s 61L of the Crimes Act (plus two further indecent assaults on a Form 1)

1. The second victim, ID, was aged 16 at the time of the offences. The respondent was aware of her age. She met him on 19 April 2018 when she was still 15 and went to his studio to get her ears pierced. They were in subsequent contact when the piercing became infected, and they became friends over the next few weeks. He called her his "shop girlfriend", although there was no sexual contact between them. She turned 16 on 5 May 2018.
2. On 2 July, the respondent picked ID up from school. She was in her school uniform. He took her to the studio where they discussed matters including their respective experiences with depression. She told him she had back pain. He offered to massage her, but she repeatedly declined. He started massaging her breasts. She froze. She could feel his erect penis pushing against her back (Form 1). He then touched her pubic area (count 2). She was still "frozen". He asked her to kiss him. She declined. He told her not to be scared. She wanted to appease him so gave him a "peck" on the lips. As she tried to move away, he put his hand into her underwear and started squeezing her buttocks (Form 1). She told him, "I don't like this", to which the respondent replied, "[t]hat's okay, I was just testing you".
3. She made a statement to police when contacted by them in May 2019.

Victim impact statement - ID

1. ID described herself as highly vulnerable even before she met the respondent. She described that she used to self-harm before she met him, including getting body piercings, but her self-harm thoughts have become a lot more intrusive and intense after being assaulted by the respondent. She described that ever since the day of the assault she has had "picture perfect flashbacks" and described still getting them as nightmares. She explained that she usually wakes up in a sweat and hyperventilating. She has been diagnosed with complex Post Traumatic Stress Disorder ("PTSD") by multiple therapists from the assault.

Counts 3 and 4: Two counts of sexual intercourse without consent - s 61l of the Crimes Act (plus one indecent assault on a Form 1)

1. Shortly after her 17th birthday on 20 June 2018, GO made an enquiry with the respondent regarding getting a nipple piercing. She attended his studio a few days after her birthday. When one of the piercings fell out a few days later she returned to the studio to get it replaced. A few weeks later she returned to get a belly piercing. The respondent unexpectedly rubbed her stomach under her shirt and after piercing her belly button told her, "[y]ou're my feisty little ginger shop girlfriend" (GO had red hair). A week later, GO returned to show him a sketch she had done for some ear piercings. She told him she only wanted one done at a time due to the pain of the procedure, but he did all 12 at once. He told her he would give her a discount because she was his "ginger shop girlfriend".
2. On 9 August 2018, GO took a half day off school to visit the respondent and pay for the piercings. At the studio, they sat on the couch in the reception area. He put one arm around her shoulders and the other on her thigh. He pulled her close to try and kiss her, but she pulled away. He pulled her closer and "forcefully" kissed her. His hand was around her neck holding her close and it was restricting her airway. She was "frozen" and did not know what to do. Other staff members entered the reception area and he stopped.
3. He then said to her, "[d]o you want to go out the back and fuck?" She replied, "[n]o, I don't want to, I have a boyfriend". He said, "[c]ome on, come on, that doesn't matter, I know you want to." She replied, "I really don't want to, sorry." He then said, "come on" and "dragged" her into the back room. She tried to pull away from him, but she was scared because he was "significantly larger than her in size". He closed the door to the studio, and she felt that she could not leave. He pushed her against the piercing bed, pulled down her underwear and put his penis into her vagina (count 3). She described that he had "all his weight" on her back and was holding her down from behind, almost on top of her. She described being "frozen" with fear.
4. After a while, the respondent turned her around so that she was facing him and pushed her to her knees. He then put a hand on her shoulder and a hand on the back of her head and placed his penis into her mouth without using a condom. After a period of time, he ejaculated into the victim's mouth (count 2). He asked her, "[d]id you like that?" She remained kneeling and did not respond. The respondent pulled up his pants and went to the bathroom. While he was in the bathroom, she called a male school friend to pick her up.

Counts 5 and 6: Two counts of indecent assault - s 61L of the Crimes Act (plus three further indecent assaults on a Form 1)

1. KO was sexually assaulted by the respondent in Armidale after he moved there in August 2018. She was older than the other victims, being 20 years old. She contacted his business via Facebook on 5 October 2018 and they had a few conversations before he asked her to go over to his place for sex. He told her he would tie her up, that he had whips, and that he would give her free piercings if she had sex with him. She told him that she was not interested in having a sexual relationship with him.
2. She later attended his house in Armidale (where he was conducting his business) with a friend who was having her ears pierced and the respondent initiated a "weird" conversation about "rough" sex with her and told her that he knew that some of her friends like it rough so she must also like it too. He repeatedly touched her on the thigh, grabbed her hair to pull back her head, put his right hand around her throat and licked her ear. Her friend, who was present, described it as "uncomfortable" as the respondent was making sexualised comments to which the victim did not respond. He also asked the victim if she wanted to be his apprentice. The women left and returned with cash to pay for the piercing. When they returned, the respondent showed them a photo of a custom design he wanted to do for the victim. The victim agreed to the design and told him she would return later that day.
3. When the victim returned to get the customised piercing, the respondent made unwanted sexual advances. She felt uncomfortable and started sending Snapchat messages to her friend telling her about this. When he continued, she told him, "I don't want anything sexual". He then asked if she wanted to see his dog. She followed him to see his dog. It was in his bedroom. He sat on the bed and kept touching her. She told him again that she did not want anything sexual. He pulled her down next to him on the bed, put his hand under her shirt and touched her breast. She repeatedly pushed him away. She said, "[s]top I don't want this". She felt very nervous as he was significantly larger than her. She did not feel that he would let her leave. She started sending text messages to her friend to come and get her.
4. The respondent then squeezed her left breast under her clothing (Form 1) and bit her hard on the shoulder leaving marks. He then grabbed her hand and put it on her penis. She pulled her hand away about three times and each time he put it back. She was scared and did not know what to do. He started talking about bondage and hitting, biting and pulling hair. He told her that people she knew liked it "rough" so she must too. He touched her genitals. She said "no" and pulled his hand away. He put his hand back again a number of times. She repeatedly said "no". He was trying to insert in finger into her "genitals" (count 5). He then pulled down his pants and grabbed her hand and moved it to his penis (Form 1).

Victim impact statement - KO

1. KO described how after the assault she initially believed that she was "fine". But about a year later she noticed that she had issues around intimacy and being touched by other people. She was referred to a therapist and was assessed by a team of psychiatrists and was diagnosed with chronic PTSD. She explained how "it got to the point where I was having fits of rage and couldn't stop it no matter how hard I tried". She described how she now goes through her daily life a little slower, more cautious and begrudgingly angry at the world and herself. She stated: "This is not something we will just move on from. This is not something we will ever forget. This is something that will stay with us women, haunting us, haunting and deciding our every move in life. We may never be free from the shame and fear that now plagues us, but we are stronger than any terror that can be thrust upon us."

Counts 7 and 8: Two counts of aggravated sexual intercourse - s 66C(4) of the Crimes Act (plus four further offences of piercing the nipples of a child under the age of 16, sexual touching, producing child abuse material and sexual intercourse with a child between 14-16 years of age taken into account on a Form 1)

1. MC was 15 years old when she was assaulted by the respondent. He knew her age, as it is illegal to give a nipple piercing to a child under 16, and when he pierced her nipples (Form 1) he told her not to tell anybody as he could lose his business.
2. MC first contacted the respondent's business on Facebook on March 2019. In an early conversation she told him she was only 15 and did not want to become "involved" with him. He told her she looked older. She met him with a friend at his home sometime later. When she first met him, he gave her a free ear piercing and offered her a job as his apprentice. She had no other source of income and agreed. He paid her $60 the first time and one subsequent time but otherwise she worked for him for free for the next 6-8 weeks. During that time, he pierced her belly button, ears, nose and both nipples.
3. On 12 April 2019, she visited the respondent with a friend. He took them to buy alcohol. He purchased some ice on the way. When they returned home, he gave her ice which she took for the first time. She described it as making her feel "too focussed" and that she was looking at herself "from another perspective". Her friend subsequently left.
4. The victim was not feeling well and was "pretty much gone". The respondent became "really touchy feely" and suggested a photo shoot. He asked her to take off all her clothes and he photographed her naked tied up with duct tape, with a mask on and black tape over her nipples. He took a video and about 50 photos of this (Form 1). During the filming he asked her to bend over and "talk dirty". Whilst she was bent over, he slapped her on the buttocks and touched her "genitals" (Form 1). She eventually said, "[n]o more photos". She put her clothes back on, however he started "feeling her up" again and gave her $20 for the "photo shoot" and undressed her.
5. The victim was aware that the respondent had circulated a photo of another naked woman without her consent and was aware he had the capacity to do the same to her, so she let him take her clothes off. There is CCTV footage available of them both entering his bedroom at 3.39am. The victim was naked, and the respondent had his pants down and was shirtless. She felt threatened and performed fellatio on him while he held her head (count 7). The respondent then put the victim on her hands and knees. She thinks she told him she did not want sex, but he then had penile vaginal intercourse with her anyway. She told him to wear a condom, but he told her he had had a vasectomy. He ejaculated inside her.

Victim impact statement - MC

1. MC stated that the incident turned her life around. She was a confident young girl with the ability to enjoy the world to the fullest; now she suffers from a deep feeling of shame and guilt caused by the respondent. She described how the respondent "had an impact on my life that I will never be able to forget". She now looks in the mirror and instead of the carefree confident girl looking back at her all she can see is self-hate and worthlessness. She has started self-harming and is unable to maintain relationships with men because of the respondent's actions.
2. She cannot fathom the feeling of touch from another human without overthinking their actions and having a constant fear that every male has the same intentions towards her. She cannot enjoy a loving relationship because she is frozen in fear that she will be abused in the way the respondent abused her. She suffers from PTSD, depression, anxiety, severe insecurity, body dysmorphia, self-hate, disgust, and shame because of what the respondent did to her. After a long fight, she has found strength that she never knew she had to stand up and say that what he did to her was "not okay".

The proceedings on sentence

1. In addition to the agreed facts and Forms 1, the Crown tendered the respondent's criminal history. The respondent's only convictions were for a mid-range PCA, driving with illicit drugs in his blood and possessing an unauthorised firearm. The explanation for the firearm was that he borrowed a rifle from his employer because there were foxes killing his chickens and he had it stored in his garage.
2. The respondent relied upon a report of Dr Adam Martin dated 2 September, an affidavit of the respondent's father, John McKenzie, dated 24 May 2021, as well as a lengthy letter summarising the respondent's history in detail. The respondent's father also gave evidence. In addition to the matters summarised by the sentencing judge, the respondent's father noted that the respondent's business was successful, that he had married when he was 23 and had a child with his ex-wife. He then re-partnered with a 17-year-old woman and had three more children. He described how the respondent would befriend much younger friends as he found them easier to relate to than people his own age. He described how the respondent's American accent and appearance of being well-travelled meant that he was able to impress those younger people.
3. The respondent also tendered a statement from his ex-wife, his solicitor and his father, attaching news coverage of the respondent's arrest.

The remarks on sentence

1. The following findings of the sentencing judge are not challenged in this Court.

Objective seriousness

1. The sentencing judge found counts 2, 5 and 6 to be "within midrange", counts 1, 8 and 4 to be "just into the midrange" and counts 3 and 7 to be "just below the midrange".

Victim impact statements

1. His Honour noted that the Crown had not submitted that the victim impact statements established the aggravating factor in s 21A(2)(g) of the Sentencing Act. His Honour noted the following: "... [T]here is no doubt, as the courts of this country have recognised for some time, that the effects on victims of sexual offences, especially young victims, are often severe and long lasting. In many cases the offending leads to significant psychological issues including anxiety, difficulty trusting others, a fractured sense of self-worth, and self-blame. The victim impact statements in this matter speak clearly of these sorts of consequences and of the shame experienced as a result of the offender's actions. Hopefully in time the victims will be able to accept that the only person who should feel shame is the offender."

Remorse

1. His Honour made a cautious finding that there was "some" evidence of genuine remorse at [71]: "… The offender expressed remorse in his evidence before me and made similar comments to Dr Martin and to his father. While the offender's history of narcissistic behaviour makes me cautious about this evidence, on balance I am satisfied that there is some evidence of genuine remorse in this case. I also accept that his pleas of guilty, albeit late ones, are some further evidence of remorse given that the offences if defended would largely have involved a word against word contest."

Rehabilitation/Risk of reoffending

1. As for the findings of rehabilitation, his Honour agreed with Dr Martin that the respondent's risk of reoffending is "very much dependent on whether the respondent can maintain his abstinence from drugs and engage fully and consistently with appropriate treatment and counselling". His Honour ultimately accepted the concession made on behalf of the respondent by his then counsel that his prospects of rehabilitation are "guarded".

Mitigating factors

1. His Honour also ameliorated the sentence due to extra-curial punishment. As a result of being charged, the respondent stated that his house was broken into, his car was stolen and damaged, his dogs were let loose, his children were called names and he was subjected to publicity in 2019 in local news outlets and on social media. His Honour noted that these were not matters which could reduce the appropriate sentence "to any great extent". His Honour also had regard to the delay in the matter coming to trial but observed that he did not give it much weight.
2. His Honour had regard to the fact that the respondent had been held in protective custody due to the nature of his offences and had been subjected to threats from other inmates and assaulted about four times. He also referred to recent decisions of this Court about the relevance of Covid-19 in sentencing. He accepted that the recent outbreak in some prisons is likely to have added to the stress of his incarceration. His Honour noted that the respondent had been fully vaccinated since August 2021. His Honour also had regard to the continuing restrictions on visits and access to services and possible additional lockdowns in prison.

Drug history

1. The subjective factors of the respondent's drug history and his mental health history overlapped to some extent in this matter. The sentencing judge summarised it in this way at [68]: "… He has been a drug user from his early teens and was first diagnosed with mental health issues when he was about 16. He has a history of difficulties fitting in with others, partly due to being somewhat immature for his age. There has been a history of disorganised behaviour with numerus hospital admissions and instances of self-harm. There have also been many attempts at rehabilitation, however these have largely been unsuccessful, with the offender arranging to be discharged early and have usually been followed by relapses to drug use and mental health problems."
2. His Honour noted the expert evidence of Dr Martin that sustained methamphetamine use is likely to distort a person's judgment. It makes them impulsive, reckless and disinhibited.
3. His Honour noted that the drug use is not mitigating and does not reduce the objective seriousness of the offences or the respondent's moral culpability in any way.
4. His Honour accepted the evidence that the respondent had last used illicit drugs about 20 months before his sentencing proceedings. He also accepted the evidence of the respondent's father that the respondent was currently in the best condition physically and mentally that he has been for many years. His Honour observed that the respondent "appeared to be rational and coherent and appeared to have achieved a good level of insight into the adverse effects that drugs have had on him".

Mental health

1. As stated above, the respondent's psychiatrist, Dr Martin, diagnosed the respondent as having a "substance use disorder". He opined that it was plausible that the respondent has bipolar disorder, but that condition mimics the effects of methamphetamine use so he could not diagnose it. When a person has had sustained methamphetamine use like the respondent it is likely to distort judgment and make the person impulsive, reckless, and disinhibited. Dr Martin also concluded, consistently with comments by the respondent's father, that the respondent has narcissistic personality traits.
2. His Honour referred to the relevant authorities outlining the ways in which an offender's mental health may be relevant in sentencing. His Honour accepted the following evidence of Dr Martin when describing the contribution of the respondent's mental health problems to his offending (at [77]-[78]): "In this matter Dr Martin says that overall the offending as described cannot be directly associated with psychosis or being out of touch with reality and that the offending as described appeared to occur over a protracted period apparently while maintaining his business and in his view cannot be directly linked to major mental illness. Dr Martin however does consider that a diagnosis of substance use disorder can be made 'first and foremost' and explains that sustained methamphetamine use would certainly distort a person's judgment adversely, making them more likely to be impulsive, reckless and disinhibited."
3. His Honour noted that Dr Martin was not able to reach with any confidence a diagnosis other than substance use disorder. He noted the respondent's submission that his self-induced intoxication was effectively linked to his mental health problems and therefore could be taken into account in mitigation or as an explanation for his offending. His Honour did not accept that submission and made the following finding in this regard at [81]: "… While I accept that the offender's long standing psychological problems have likely contributed to his misuse of illicit substances, and perhaps ultimately to his substance use disorder, his self-induced intoxication which likely fuelled his offending behaviour is not a matter that mitigates his moral culpability, which I regard as fairly high in relation to all offences. Nor is it a matter that reduces the objective seriousness of any of his offences. Nor do I accept that his mental condition is one that makes him an inappropriate candidate for general deterrence. Given the nature of his self-induced intoxication and its link to the offences I consider that personal and general deterrence both remain an important part of the sentencing equation, although as to personal deterrence, I am of the view that his incarceration to date has already had a salutary effect on him such that he is less likely to re-offend, provided of course that he stays away from drugs."

Pleas of guilty

1. The matter was initially listed for trial on 25 March 2021, but that trial date was vacated. After subsequent plea negotiations the respondent pleaded guilty on 24 July 2021. His Honour allowed a 5% discount on account of the utilitarian value of the pleas of guilty.

Special circumstances

1. His Honour made a finding of special circumstances and varied the statutory ratio down from 75% to 60% due to the fact that it is the respondent's first time in custody, that he had mental health issues and that there was a need for him to be monitored for a lengthy period in the community on his release.

Indicative sentences

1. The indicative sentences were: Count 1 - 5 years 8 months with a non-parole period of 3 years 4 months (Form 1 taken into account). Count 2 - 1 year 10 months (Form 1 taken into account). Count 3 - 4 years 9 months with a non-parole period of 2 years 9 months (Form 1 taken into account). Count 4 - 5 years with a non-parole period of 2 years 10 months. Count 5 - 2 years 1 month (Form 1 taken into account). Count 6 - 1 year 8 months. Count 7 - 5 years 2 months with a non-parole period of 3 years (Form 1 taken into account). Count 8 - 4 years 9 months with a non-parole period of 2 years 9 months.

Crown submissions

1. It was submitted that the sentence was "plainly unjust", being so far below the range of sentences that could justly be imposed to render it likely that public confidence in the proper administration of criminal justice in the sentencing of sex offenders would be undermined.
2. It was submitted that the ultimate sentence had to be proportionate to the totality of the offending and contemplate each separate victim. The totality of the offending was eight offences with 12 significant Form 1 offences.
3. The respondent's self-induced intoxication could not mitigate his sentence. There was no causative link between any mental illness and his offending. The respondent was on conditional liberty for the majority of the offences. There was a late plea for which he received a 5% discount. He did not have any significant criminal record and, as with all prisoners, he was suffering onerous conditions due to Covid-19.
4. It was submitted that there was "too much totality" and significant accumulation was warranted. Some concurrence was appropriate in relation to the counts pertaining to the same victim but not as between victims.
5. It was submitted that the ultimate sentence of 10 years' imprisonment with a 6 year non-parole period failed to adequately contemplate the separate and distinct offending against each of the five victims across the eight offences.

Respondent's submissions

1. The respondent's written submissions focused on the relevant principles in Crown appeals, some of which I will consider further below.
2. It was submitted that a head sentence of 10 years' imprisonment bears reasonable proportionality to the objective gravity of the offences. It was noted that the length of the indicative sentences is not impugned.
3. Significant reliance was placed on the fact that the respondent was a person with a "disturbing personal history". It was accepted that this was a matter which pulled in different directions. It was noted that the sentencing judge remarked that it was of "significant" weight that the respondent presented in the witness box as coherent, rational, and insightful. That may well be the result of the fact that, now that he is in a controlled environment, his medication has been managed and he is no longer taking ice.
4. It was submitted that the combined effect of the respondent's mental health issues, his segregation within the prison system and further Covid-19 related hardships rendered his prison sentence more onerous than others in the general prison population, a matter noted by the sentencing judge. It was submitted that the weight to be placed upon these and the consequent downward impact upon the sentence were matters for the sentencing judge.
5. It was submitted that the sentence imposed entails a substantial measure of punishment for, on the one hand, an example of very serious offences of sexual misconduct and, on the other, an offender who has been troubled since childhood and was found to have the potential of rehabilitation. It was submitted that a head sentence of 10 years' imprisonment bears reasonable proportionality to the objective gravity of the offences. Significant reliance was placed on the finding of remorse.
6. It was accepted that the sentencing task was a difficult one. On the one hand, the respondent had committed very significant sexual offences upon the victims for his own sexual gratification whilst in an intoxicated state. On the other hand, the respondent's life had been distorted by the abuse of drugs from an early age. It was noted that he is now motivated to seek professional help. He was equally motivated in the past but when that failed, he hated himself as a consequence. It was submitted that the respondent was damaged in ways which, over the passage of time, are difficult to trace and that the sentencing judge found that his level of maturity was below his age.

Consideration

1. The scope of the inquiry required by this Court on a Crown appeal is as described by the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (footnotes omitted): "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as 'manifest inadequacy'."
2. In the present matter the Director does not contend for any specific error. The sole ground of appeal is that the sentence is manifestly inadequate. In other words, is it "unreasonable or plainly unjust" within the fifth limb of House v The King (1936) 55 CLR 499; [1936] HCA 40? As Gleeson CJ and Hayne J earlier observed in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
3. As Bell P (as his Honour then was) recently observed in Byrne v R; Cahill v R [2021] NSWCCA 185 at [1]: "… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain."
4. The question of whether a sentence is manifestly inadequate is one upon which judicial minds may differ. As Payne JA and Button J (Schmidt J in dissent) observed in Conte v R [2018] NSWCCA 209 at [9], in the context of considering a ground contending manifest excess: "…[J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors."

The residual discretion

1. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act the Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. It is for the Crown to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in this case: CMB v The Attorney-General for New South Wales [2015] 317 ALR 308; [2015] HCA 9 at [33], [54].
2. The Crown submitted that this Court should not decline to intervene. It was submitted that the sentencing process at first instance was marked by latent error. It was noted that the Crown's notice of appeal was filed within a month of the sentence and served shortly thereafter, and it has been approximately seven months since the date of sentence, which is significantly ahead of the respondent's prospective release date. It was noted that this was not a case where the imposition of a manifestly inadequate sentence was caused by the conduct of the representative for the Crown at first instance. A further reason why it was submitted that the residual discretion should not be exercised is the significant disparity between the sentence actually imposed and what is necessary to reflect the seriousness of the offending.
3. On behalf of the respondent, it was submitted that the fact that the respondent was intoxicated at the time of the offending could not reduce the seriousness of an offence, but that does not mean that the unchallenged evidence of his impairment since a young age was not fundamentally important in the instinctive synthesis. It was submitted that this was relevant to the question as to whether this Court should intervene. It was submitted that although Dr Martin was not prepared to opine that the respondent's long-term impairment was caused solely by his "substance use disorder", he still suggested it was plausible that the respondent suffered from bipolar disorder from a young age.
4. It was submitted that the residual discretion is not displaced because the sentencing judge found that specific deterrence had been achieved and, considering the evidence filed in the appeal, that he has finally had a treatment regime which assists him.

Additional evidence on sentence

1. The respondent's father filed an affidavit in the event that this Court came to resentence. In it, he described the respondent's classification in the SMAP unit at the South Coast Correctional Centre. He described it as being "only a little different" to a maximum security unit. It was noted that even when there is no lock-in, the respondent is locked in his cell for 16 and a half hours a day. It was noted that there are frequent staff shortages at that prison and that inmates are usually not told in advance they will be in lock-in and are rarely given any explanation. During lock-ins they are locked in their cells for 36-48 hours. He noted that the respondent's time in prison has been more difficult because of the repeated lock-ins. He calculated that the respondent has been locked in for about 240 to 250 days in the last three years due to Covid-19 concerns.
2. The respondent's father described how he and his wife speak to the respondent nearly every day when he is able to call. The lock-ins are increasing the respondent's anxiety and there is anxiety about whether Covid-19 will get into the jail. The respondent is frustrated about the seeming randomness of what has been happening. He has become more stable since he has been incarcerated. He seems to have greater insight into his own conduct and consciously tries to regulate. He is now practising Buddhism. It has been difficult to undertake other courses due to Covid-19. There are limited employment or educational courses available to SMAP inmates. The respondent was placed on a methadone program and has worked hard to wean himself off methadone. The only drugs he takes now are for anxiety. His monthly injection of buprenorphine is helping to manage his drug cravings.
3. I have taken this material into account in re-sentencing the respondent.

Re-sentence

1. None of the findings of the sentencing judge have been challenged in this Court and I would adopt them all.
2. The Crown did not contend that the indicative sentences were too low, and I do not propose higher indicative sentences.
3. The nub of the appeal was the application of the totality principle. I would allow for a greater degree of accumulation than the sentencing judge. I would allow for concurrence, where applicable, where there are multiple counts in relation to one victim, but I would allow for a degree of accumulation as between each of the five separate victims. I would allow a greater degree of concurrence on the indecent assault charges than the more serious offences.
4. I would not depart from his Honour's finding of special circumstances but would vary the statutory ratio to a slightly more limited extent than his Honour did. His Honour varied it to 60%; I have varied it to 66%. The respondent has been doing well in custody but will need significant help whilst on parole to see whether he can remain abstinent. The result is that the period on parole will remain the same, whereas the non-parole period will be increased. I would increase both the head sentence and the non-parole period by 2 years. The non-parole period has been increased by one third.
5. The indicative sentences I would impose are those I have already extracted above at [83]. The 5% discount for the late plea of guilty has been applied to those indicative sentences.

ORDERS

1. I would propose the following orders: 1. Crown appeal allowed. 2. 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 to commence on 23 May 2019 and expire 22 May 2031 with an aggregate non-parole period of 8 years to expire on 22 May 2027.

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Endnotes

1. Cf, Crimes (Sentencing Procedure) Act 1999 (NSW), s 44.
2. Crimes (Sentencing Procedure) Act 1999, Pt 3, Div 2.
3. R v McKenzie [2021] NSWDC 652 at [67].
4. R v McKenzie [2021] NSWDC 652 at [68]-[84].
5. R v McKenzie [2021] NSWDC 652 at [68].
6. R v McKenzie [2021] NSWDC 652 at [68]-[69].
7. R v McKenzie [2021] NSWDC 652 at [71].
8. R v McKenzie [2021] NSWDC 652 at [72].
9. R v McKenzie [2021] NSWDC 652 at [73].
10. R v McKenzie [2021] NSWDC 652 at [75].
11. R v McKenzie [2021] NSWDC 652 at [81].
12. R v McKenzie [2021] NSWDC 652 at [82].
13. Crimes (Sentencing Procedure) Act 1999, s 54A(2)(b).
14. Burgess v R [2019] NSWCCA 13 at [40], Vaughan v R [2020] NSWCCA 3 at [117], Kliendienst v R [2020] NSWCCA 98 at [79]-[102], Lee v R [2020] NSWCCA 244 at [32]-[36] and Noonan v R [2021] NSWCCA 35 at [30]-[33].
15. R v McKenzie [2021] NSWDC 652 at [86].
16. Affidavit, John D McKenzie (13 May 2022) at par 7.
17. Affidavit, John D McKenzie (13 May 2022) at par 3.
18. Affidavit, John D McKenzie (13 May 2022) at par 5.
19. Affidavit, John D McKenzie (13 May 2022) at par 6.
20. Affidavit, John D McKenzie (13 May 2022) at par 10.
21. Affidavit, John D McKenzie (13 May 2022) at par 14.
22. Cf CMB v The Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [32]-[36] and Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [42]-[44].
23. See NSW State Parole Authority, Annual Report 2019, (11 November 2020) at pp 9, 11.
24. See NSW Inspector of Custodial Services, Programs, Employment and Education Inspection, (February 2020) at pp 44-46. 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: 08 June 2022