Director of Public Prosecutions v McKenna (a pseudonym)
[2023] VCC 1133
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES MCKENNA (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Ballarat |
DATE OF HEARING: | |
DATE OF SENTENCE: | 30 June 2023 |
CASE MAY BE CITED AS: | DPP v McKenna (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1133 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | |
For the Accused | Mr P.A. Chadwick KC |
HIS HONOUR:
1Charles McKenna[1], you have pleaded guilty to six charges of sexual penetration of a step-child and two charges of sexual assault of a child under the age of 16.
[1] A pseudonym.
2Those crimes carry maximum penalties of 25 years and 10 years respectively. Each of those is a standard sentence crime. So far as the sexual penetration is concerned the standard sentence is 10 years and so far as the sexual assault is concerned the standard sentence is four years. The offending took place between roughly 2018 to 2020.
3Insofar as a sentencing regime is concerned I use the approach of Justice Champion in the case of Brown and I have taken the standard sentence into account as one of the factors to consider in my synthesis of all the relevant factors. My consideration of the standard sentence as one of those factors is reflected in the sentences I impose. The sentence I impose in respect of each of the charges on the indictment is lower than the standard sentence.
4Having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending and the matters available in mitigation, the sentences I will give at the end of these remarks are the sentences I have determined to be appropriate.
5You are 35 years of age and you have no prior convictions. You pleaded guilty at the earliest opportunity. You made admissions and indeed apologised in a pretext call after the matters were brought to light. You made fulsome admissions in your record of interview and you have pleaded guilty to the indictment.
6In this particular situation which, as I indicated during the course of the plea, in my experience is a very rare one indeed. I think you expressed remorse, genuine remorse and that is, as I say in my experience, unusual. I take that very, very much into account in this sentencing situation.
7You must also get the utilitarian benefit of that plea of guilty. Firstly, we have to operate on the decision of Worboyes which is known to all lawyers but also this is a situation where had you, in terms of the pretext, pretended you did not know what she was talking about and then denied in the record of interview and pleaded not guilty, the probabilities are that at a trial you would have been even money. That would have put your victim through the circumstances of having been called a liar because there is no other way around it and the damage to her would have been even greater than what has occurred. As I said again during the course of the plea this is a very, very unusual situation and I am taking it as best I can into account.
8It is also the circumstances where, in my view having heard many of these matters, that the simple plea of guilty and the admission, the acknowledgement of the offending and the seriousness of it are often of great assistance to the victim.
9Because of the nature of the offending you will be placed on the Sex Offenders Register. I advise you that the reporting period will be for life and that will be sent to you in the gaol.
10You are also subject to the provisions of the Serious Sex Offenders legislation which will apply to Charges 3 onwards. I am aware that community protection is the principal sentencing purpose. The sentences will be cumulative unless otherwise ordered and I will so otherwise order for reasons of totality. The Crown do not seek a disproportionate sentence.
11The situation here is as follows.
12The complainant was aged between 12 and 14 years of age at the time of the offences. She is now about 17. You were her step-father. She and her mother are from Thailand and you met them when you were working in Thailand when you were aged about 21. The family lived together out here and you had first digitally penetrated the complainant when she was about nine years old on holiday in Thailand. Clearly that is simply a matter of context in these circumstances and just shows that the offending had gone on for an extended period of time and could not be said in any way, shape or form, to be situational in the sense of just taking advantage of a given situation. It was persistent and I am well aware of that.
13At the time of the charged offending both you and the victim's mother were both working. The mother often worked on Saturdays. The complainant told no one about the offending when it occurred and that is perfectly normal and indeed the sequelae of all this indicates why they often do not tell anybody.
14But in any event, Charge 1. In 2018 she was 12 or 13 years of age and in Year 7. She went into your bedroom to ask you something. She was wearing a summer nightie. You were lying on the bed. You touched her legs and pulled her onto the bed. As she lay there you put your hands into her underwear, rubbed her vagina and put your fingers in her vagina. She then left the room.
15On an occasion in 2019 when she was in Year 8, this is Charge 2, she was at home on the couch with a blanket over her watching a movie. Her mother was not at home. You sat next to her. You got under the blanket, rubbed her legs up to her underwear and again inserted your fingers in her vagina. Her little sister, came into the room and you continued doing what you were doing.
16Charge 3 of sexual penetration and Charge 4 of sexual assault, where on another weekend in 2019 when she was aged about 14 and her mother was not at home, you were in your bedroom wearing underwear but no shirt. You took off her clothes so that she was fully naked, kissed her neck and touched her breasts. You then kissed her breasts and sucked her nipples, rubbed her vagina and put your fingers inside of her.
17Charge 5 of sexual penetration. On a later occasion, still in Year 8, her mother again was not at home. She was wearing shorts and a T-shirt with a bra underneath. You picked her up, put her on a benchtop and started kissing her neck. Put your hand under her shirt and squeezed her breasts. Put your hand up her shorts squeezed her vagina and inserted your fingers into her vagina.
18This is a charge of sexual assault. On a later occasion when she was in Year 8 you effectively gave her what is known as a hickey on her neck.
19The next sexual penetration charge is when she was about 14 or 15 and near to, other than Charge 8, when the offending stopped. She was with you in the en suite area of your bedroom. You were seated on an ottoman or something similar and hugged her. Put your hands under her shirt, removed her bra and squeezed her breasts. Put your hand down her pants, rubbed her vagina, inserted your fingers into her vagina. In the course of the incident you had to lie down next to her and continued to penetrate her vagina with your fingers. It was physically painful to her so you suggested she put cream on. You tried to get her to get lubricant from a drawer but she said she did not want to use it, put her clothes back on and left.
20At around about the same time but on another occasion the two of you were again in the en suite area of your bedroom. You were sitting down with her on your lap and you again put your fingers into her vagina.
21In these circumstances it is put and accepted on your behalf that there were other occasions when you digitally penetrated and sexually touched her, including when saying goodnight to her in bed and when you were driving.
22Those matters are not charged acts. They simply go to the context of all this and show that none of this offending occurred in an isolated circumstance. It was all part and parcel of a pattern.
23In any event, a couple of years went passed and then in August 2022 when she was 17 years old she took an overdose of tablets and was hospitalised. She began seeing a psychologist and during that disclosed that you had sexually assaulted her and she, to the psychologist, expressed feelings of guilt and shame. That is exactly what this offending is all about and why it carries such significant sentences. The child almost inevitably feels that somehow or other it was their fault and that they were responsible for it.
24In any event, she told her mother about the offending. Her mother spoke to you about it and you moved out of the family home. That was in mid-September. Clearly the mother did nothing about it so far as the police were concerned. In early October she moved in to live with Ms Roberts[2], the mother of a friend. Ms Roberts contacted Ballarat SOCIT and it went from there. On 13 October she made a VARE.
[2] A pseudonym.
25On 17 October she spoke to you in two recorded conversations. As I have already indicated you made full admissions in that. Apologised, I accept apologised sincerely and expressed guilt and shame for your conduct. You were arrested on the 19th and displayed similar attitude when you did your record of interview. Again for about the fourth time, this is a very rare occurrence in my experience with this type of offending.
26They are the charges to which you plead guilty and the starting point from all of this is what His Honour Justice Marks said many years ago in the case of R v Sposito.
'A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate.'
27So Justice Hedigan in the matter or Justice Vincent was referring to this in the matter of Toomey.
'The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.'
28That has been repeated in many other cases since and is clearly the state of the law as it should be in this state.
29You have had read out on your behalf by counsel a letter of apology which was read out in court in which you said,
'When I initially apologised to you I felt sick to my stomach. That feeling hasn't gone away. I constantly think about the way I would have made you feel. I can only imagine you were scared, confused, in shock, not comfortable, angry, anxious and this would be heightened when you were in my presence. It's a shocking thought for me that I've done this to you. I'm a monster. I've ruined a part of your youth which is supposed to be a precious and joyful time in your life.'
30I would have grave doubts about all that if it was not what you have actually put throughout this in your pretext call and in your record of interview and I am prepared to accept that it is genuine.
31If one then looks at what occurred to Fiona[3], she has made a victim impact statement. I am not going to read it out in full. There are aspects of it which are extremely concerning but in any event she said and this is only in part. It has been tendered. It is all there.
'For the past 10 years I've kept a secret that made me suffer greatly until I no longer could take it. My mind was filled with darkness. There was nothing left within me but I knew I couldn't hurt the people I loved with something I thought was my own doing.'
[3] A pseudonym.
32Which again, I interpolate, is what happens every time in these matters.
'I decided to take my life.'
33She said,
'Thank the lord that I'm here before you today.'
34She said,
'Today I came out about my childhood abuse to the people I called family. It was the most terrifying yet relieving day of my life. I thought it was going to be okay because I had those who loved me unconditionally by my side yet I was wrong. Little did I know back then that I had to choose between coming forward or having a relationship with the ones I love more than anything else in this world. Before coming out to SOCIT I experienced emotional blackmail which almost prevented me from coming forward. From the second I walked into the SOCIT office to the moment I left I was still questioning if I'd made the right choice in revealing this secret. I was reassured that I'd made the right choice even though I didn't fully believe it at the time.'
35She said,
'I had difficulties talking about this disgusting offending with complete strangers.'
36And she said that the day she reported this crime,
'I lost the most valuable thing in my life and that was my family. After coming forward I could no longer live at my home.'
37And she goes on to describe the pain about not having a family. That things were flipped upside down. Payments for her school were stopped. She went from being a student who did well at school and obviously from her victim impact statement is a very, very intelligent young woman, getting good results to somebody who just passed.
38She had to move several times. This is a 16/17 year old. She had to contact Centrelink. She had to become financially independent. She had to explain to a stranger over the phone at Centrelink why she was to get Youth Allowance due to the circumstances that the crime had placed her in and she began getting counselling as well from all over the place.
39She said,
'All this was so overwhelming. All I wanted was a simple home from those I loved most and for them to say, "It's okay". Instead I felt as though I should have stayed quiet.'
40She said later on,
'The crime has made me face a lot of hurdles but through it all has shown me how strong I am. I had to learn to love myself again. I now know that I'm not defined by what has happened to me but still question why. Why did this have to happen to me? Why was I hurt by this person I called Dad? The person I loved more than my own biological father. The person who I thought loved me as his own daughter. Why couldn't I say "Stop"? Why did my family have that reaction? Why did my family make me feel ashamed and not him? But why do I still love the people that hurt me the most?'
41She said, going on to further to quote.
'This crime will continue to impact my life. I will never be able to fully express in words the psychological, emotional and physical damage I have suffered and continue to suffer. I hope that as time goes on it will become less and less. I'll never forget about what has happened and never get rid of my flashbacks but I'll learn to control it. The whole journey will become my past. I'll look back and be proud of myself for speaking the truth.'
42And so you should be, Fiona.
43That is why incest is such a dreadful crime. Children feel guilt. One of the sequelae of it is that families become totally dislocated. If what she is saying there in terms of the family is true then it is a dreadful state of affairs. It seems there almost a sense of she is a bit of an ingrate for not thanking people for what has happened. Should have kept her mouth shut. If that is true it is a disgrace and people should hang their head in shame.
44I make it clear to you, Mr McKenna, that I in no way shape or form attribute any of that to you. It is clear that when this came out you told your family about it. You told them all what you had done and you have totally owned up about it. This is not coming from you and I do not sentence you for it. I just simply make that as a comment as to how the effects of this can be so long term and you know, it is a perfect example of why kids are not game enough to make these complaints. This is one of the fears that they have.
45As I said, the offending is serious. The only potential result is a custodial sentence.
46I do take into account these factors though as your very experienced counsel put on your behalf.
47There was no violence involved. There were no threats involved. There was no penile or oral penetration. Whilst we do not distinguish between penetrations that means that there was no risk of pregnancy. There was no risk, in our view, of disease. Those matters which often aggravate the circumstances are not in existence.
48However, it remains a significant breach, well gross, really, breach of trust over a significant period of time. You indicated in your apology that you really wanted to do the best for her and I suspect that deep down that is what you did but what you ultimately ended up doing to her cannot be condoned. It has to be significantly punished.
49Very helpful submissions were put on your behalf as to your background. In these circumstances unfortunately it does not help a lot. In any event, I will do that in summary form.
50Your father is a New Zealander. You were born in New Zealand. Your family moved to Melbourne when you were an infant. Your parents separated when you were aged four and it seems to have had a significant impact upon you.
51In 1994 your father returned to New Zealand and you went over there to spend holidays with him. Your mother remarried but that did not work out and your mother and brother moved to Tooma and ultimately to Marysville.
52At the age of 15 you went to live with your father and step-mother in New Zealand. After that you returned to Australia to live with your mother and her then partner.
53Your schooling was uneventful in a sense. You went to a number of schools. After leaving secondary school you moved to Melbourne to reside with your grandparents. You have done personal care post-secondary education. That was not completed and you have spent your time in automotive sales. I do not have to go through all of that but you have clearly been a very loyal and very valuable worker to a number of firms over a decade or so.
54I have no doubt that you have been a very good provider as such in terms of worldly aspects and you have also been a very good employee. You and Fiona’s mother have married and bought a family home in Ballarat where your daughter, Abbi[4], was born in 2014.
[4] A pseudonym.
55I accept also, though this is a double edged sword the way some of this material has been put before me, that over the years you and Fiona’s mother have spent money on the extended family to a very large extent and that is clearly very much to your credit.
56You have no history of drug use and no mental health history. That assists in terms of whether you should reoffend or not.
57As I have indicated, you have no prior offending and since you went into custody on this, as I understand it, you have never made a bail application. To use the vernacular, you have copped it from the day it became known and that is to your credit despite the seriousness and the repulsiveness of the offending.
58Your counsel submitted the various things that I have made about pleading guilty, genuine remorse and all those matters, the apology and I agree that they all go very much in your favour.
59There were a number of references tendered on your behalf which support the proposition that you have been a good provider and that you have done your best. That you have a very good work record. That you have had a stable existence and otherwise apart from this offending remained offence free.
60As best I can I take those factors into account. Unfortunately in offending such as this it is quite often the case that what I am left with is a situation where I think the risk, in one sense, is situational. The risk of you re-offending in this way, I think, is very low. It will be a matter for the parole board, not me and the prospect of you rehabilitating, bearing in mind your acceptance of what has occurred and you acknowledge that you need significant psychological help, should be good. Unfortunately for you they are going to be matters which are taken by the parole board in a significant period of time.
61Offending such as this clearly is serious as I have just read out from Justice Marks. Of course the application of general deterrence and in your case specific deterrence I think have been met, very much call for denunciation and an appropriate punishment.
62I am well aware of the many number of decisions in regard to offending or effectively incest which is literally what this is. I have taken into account all the references that have been tendered on your behalf and I do not take issue with the fact that they speak highly of you. So it comes down to the appropriate sentences for each.
63It is a situation where, again this is where the 6AAA, which will not mean anything to you, is just such a ridiculous proposition but I will be mentioning some figures in a moment.
64In any event, as best I can in all these circumstances on a crime that carries 25 years with a standard sentence of 10 and one that carries 10 years with a standard sentence of four I sentence you to these.
65Charge 1, five years. Charge 2, five years. Charge 3, five years. Charge 4, six months concurrent. Charge 5, five years. Charge 6, one month concurrent. Charge 7, five years. Charge 8, five years.
66I direct that six months of the sentence imposed on Charge 2, 12 months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 7 and six months of the sentence imposed on Charge 8 be served cumulatively upon each other and upon the sentence imposed on Charge 1.
67That gives a total effective sentence of eight years.
68In the circumstances, as was pointed out by again the very helpful submissions of your counsel, this is a situation where because of your cooperation and your determination to reform I am giving you the lowest minimum term I am able to as a matter of law.
69Accordingly you become eligible for parole after serving a period of four years and 10 months.
70The PSD, gents? Sorry, I have lost that, 252, wasn't it?
71MR MOORE: Yes, Your Honour.
72HIS HONOUR: Yes.
73MR CHADWICK: I think so, Your Honour.
74HIS HONOUR: Yes. Thanks, Mr Chadwick. I agree to 252 days be reckoned as having been served under this sentence.
75In this situation it is impossible for there to have been a trial. You owned up from the outset. So to say what you would have got if you had pleaded not guilty is ridiculous as a direct statement but also there is this.
76This is very serious offending indeed. Had you denied it in that pretext call. Had you gone into a police station and denied it. Had you pleaded not guilty and run a trial and you may have had a chance of being convicted by a jury, I would have given you something in the order of 14 years for it.
77Which just shows what you would have got if you had not effectively accepted responsibility in a way that virtually no one else in her life seems to have. I will simply leave it at that.
78No other orders?
79MR MOORE: That completes the matter.
80HIS HONOUR: No other orders, Mr Chadwick?
81MR CHADWICK: No, Your Honour.
82HIS HONOUR: Thanks for your assistance, Mr Chadwick. It's very helpful, as always.
83MR CHADWICK: As Your Honour pleases.
84HIS HONOUR: All right. Thanks for that. Do you need to talk to your client, Mr Chadwick?
85MR CHADWICK: Yes please, Your Honour.
86HIS HONOUR: Yes. If you could organise that, Johnny. Thank you.
- - -
0
0
0