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HMA v Kyle McKenzie


May 13, 2022

At the High Court at Edinburgh Lord Boyd imposed a 16 years extended sentence on Kyle McKenzie, comprising of a custodial part of 11 years and a 5 years extension period, after the accused pled guilty to rape and assault to injury

On sentencing Lord Boyd made the following statement in court:

"In the early hours of the morning of 25 June 2020 you broke into a house in Glenrothes. It was occupied by an 84 year old woman. She was a widow who lived alone. She is registered disabled. She is partially deaf and has respiratory and mobility problems.

Its clear to me that this was planned. You were dressed in black. You wore a balaclava and you were armed with a garden tool. You got entry through the bedroom window which had been left partially open.

This was not your first break in that night. Not long beforehand you had broken into the house of an elderly couple and stolen a decanter.

You entered the 84 year old woman’s house through the bedroom window, the complainer was asleep in bed.  She was woken up by you pulling the bedclothes off her. You then subjected this woman to a sustained, violent and degrading sexual assault in the course of which you raped her orally and vaginally and attempted to rape her anally. It is difficult to put into words the revulsion that all right thinking people will have for your conduct that night.

The complainer fought back. Because she would not comply with your instructions you hit and punched her round the head and body. You caused her breathing problems by penetrating her orally and pressing down on her chest.

Through all of this she had the presence of mind to ask you to move her back onto the bed where she was able to reach across and activate the community alarm. The alarm sounded in the house and you made off. Not unnaturally she wonders what might have happened had she not activated the alarm.

The complainer has provided two victim statements. In the course of my duties as a judge I read many such statements but these were particularly difficult to read. The complainer describes the searing pain that she experienced as a result of the penetration – a physical pain that lasted for a long time. But of course it is the long term psychological damage that is the most pervasive. She describes being petrified during your attack and the nightmares and flash backs she still experiences.

But there is another side to this remarkable woman. She told me of the kindness she has received from those that cared for her, whether it was the medical staff in hospital or the police who were investigating the crime. And then she speaks of the hardest part – the effect of that these events have had on her family and her concern for their wellbeing.

She is a remarkably brave and inspiring lady.

All of this stands in marked contrast to your brutality and your cowardice.

I have been reminded that you pled guilty and it is true that you plead guilty on the morning of the trial. When you spoke to the social worker and to Dr Baird you told them that you took full responsibility for your actions albeit that you claim to have little memory of the events of that night. Nevertheless going forward your acceptance of guilt may help in your rehabilitation.

The fact is however that this plea came late in the day. You initially instructed your lawyers that the complainer consented to sex and a special defence to that effect was lodged with the court. As a result the complainer had to appear before a commission to take evidence and was cross examined by your solicitor advocate on the basis that she had consented to everything that you had done. That must have been quite some ordeal. For that reason there is no question of my affording you any discount for your plea.

As you know I commissioned Dr Baird to provide a Risk Assessment Report. I explained to you that it is a first step to determining whether, if you were at liberty, you would seriously endanger the lives or physical and psychological wellbeing of members of the public at large. If you did then the only appropriate disposal would be an order for lifelong restriction.

Dr Baird concludes that you pose, at best, a medium risk. That is not conclusive – the mater remains one for me to determine. However having regard to the whole terms of the report and to the fact that you have no previous history of offending I am satisfied that the risk criteria for an order for lifelong restriction is not met. That does not mean that you do not pose a threat to the public. I believe you do. The offence itself shows that you had a propensity to commit a serious violent sexual offence. For that reason I will impose an extended sentence.

In selecting the appropriate sentence I have to have regard not only to the protection of the public but to the need to punish you and mark society’s disapproval. In doing so I have to assess the harm that you caused. In this case it is considerable. I also have to consider your culpability.

On the one hand it is clear to me that you went prepared at least for breaking and entering a house. The fact that you wore a balaclava and gloves suggests to me that you expected to encounter a householder. Whether you were looking for an elderly woman to rape only you can tell.

You are now 23 years of age. You were 21, nearly 22 when you committed these offences. Because you are under 25 years I have to apply the guidelines for the sentencing of young persons. That means that I have to consider your maturity at the time of the offence and also the scope for rehabilitation. Dr Baird comments on your lack of maturity and does give some ground for optimism for the future.  I accept that there is scope for rehabilitation.

I accept that you are somebody who has had some adverse childhood experiences. These are detailed in both Dr Baird’s report and the criminal justice social work report. Your mother committed suicide when you were 17 years old; your stepfather a year later. I take all of this into account.

Nevertheless, you are an intelligent young man. And while you have difficulties in the past and metal health issues there are no personality or other disorders. You know perfectly well what you were doing was wicked in the extreme.

As a result of your conviction and the sentence I am about to impose you are subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 for an indefinite period.

The clerk of court will serve upon you a notice confirming those requirements with which you must comply.

Had you been over 25 years of age the starting point for consideration of the custodial part of the sentence would have 14 years and may have been considerably longer.

I have listened carefully to everything that has been said on your behalf. It appears to me that you do have the capacity to change. For these reasons and given your age at the time of the offence, your lack of maturity, your lack of previous convictions, the positive attitudes you now apparently express for rehabilitation I can limit the sentences that I might otherwise have imposed. On charge 2, I shall sentence you to 9 months imprisonment. On charge 3, I shall impose an extended sentence of 16 years of which the custodial part shall be 11 years and 5 years extended. The sentences shall run concurrently and be backdated to 8 July 2020.