McKENNA v The State of Western Australia
[2014] WASCA 201
•5 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McKENNA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 201
CORAM: McLURE P
MAZZA JA
HEARD: 20 OCTOBER 2014
DELIVERED : 5 NOVEMBER 2014
FILE NO/S: CACR 89 of 2014
BETWEEN: DENNIS JOHN McKENNA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SLEIGHT DCJ
File No :IND 1269 of 2012
Catchwords:
Criminal law - Leave to appeal against sentence - Extension of time - Totality - Unprecedented level of sexual offending against children
Legislation:
Nil
Result:
Extension of time refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms S Naumovski
Respondent: No appearance
Solicitors:
Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AIM v The State of Western Australia [2014] WASCA 155
Do v The State of Western Australia [2013] WASCA 218
Gulyas v The State of Western Australia [2007] WASCA 263
Hughes v The State of Western Australia [2014] WASCA 78
McLeod v The State of Western Australia [2009] WASCA 233
Pendleton v The Queen [2002] WASCA 4
Pendleton v The Queen [2013] WASCA 289
RFS v The State of Western Australia [2012] WASCA 58
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Prince [2011] WASCA 22
McLURE P: This is an application for an extension of time and leave to appeal against sentence.
On 25 January 2013 the appellant pleaded guilty to 34 counts of sexual offending against 17 victims who resided at St Andrews Hostel in Katanning, which provided a boarding facility for students attending Katanning Senior High School. At the time of the offending, which occurred over a 12‑year period between 1976 to 1988, the appellant was the warden in charge of St Andrews Hostel.
On 18 February 2013 Sleight DCJ sentenced the appellant to a total effective sentence of 9 years' imprisonment for the 34 offences. That sentence was ordered to be served cumulatively on a total sentence of 6 years 4 months' imprisonment imposed in 2011. That sentence commenced on 18 July 2011.
The sole ground of appeal is that the total effective sentence infringed the first and second limbs of the totality principle.
The appellant commenced this appeal on 13 May 2014, well over a year out of time. The delay is both gross and without good cause. As there has been a lengthy delay, exceptional circumstances must be demonstrated unless it can be established that a miscarriage of justice will eventuate unless an extension is granted: McLeod v The State of Western Australia [2009] WASCA 233.
There can be no miscarriage of justice if the ground of appeal does not have a reasonable prospect of succeeding.
The appellant's ground of appeal has no reasonable prospect of succeeding. Accordingly, an extension of time must be refused and the appeal dismissed.
The factual background
It is unnecessary to detail the facts of each offence. The ages of the 17 victims varied between 13 to 17 years, the majority being children between 13 and 14 years old. The offending involved four counts of unlawful and indecent dealing with a child under the age of 14; 19 counts of unlawful and indecent assault on a male person; four counts of unlawful carnal knowledge against the order of nature; three counts of permitting a person to have carnal knowledge of the appellant against the order of nature; and four counts of committing an act of gross indecency with a male person in private. The offences the subject of the counts were representative.
The sentencing judge captured the breadth and depth of the appellant's culpability as follows:
There are a number of aggravating features in your offending behaviour. Firstly, your offending was a gross breach of trust. The parents of boys and the boys themselves expected you to provide parental care.
A further aggravating feature is the manipulation that took place in order for you to achieve your sexual gratification goals. You took advantage of the control you had over the boys in the hostel. You had the ability to control their behaviour, to expel them and generally control their environment, such as to make life for them either pleasant or unpleasant.
You were also the football coach of many of the boys. You used these advantages to effectively emotionally blackmail your victims to comply with your requests. Frequently, the boys were taken to your quarters, shown sexual or pornographic movies, provided with drinks and lollies. You created an environment where you became the dominant personality in the hostel and ingratiated yourself to the boys so that they could easily be manipulated.
It is clear that over a lengthy period of time you abused your position as warden by treating the hostel as a sexual smorgasbord, giving you the opportunity to select boys to engage in sexual activities for your gratification. There were a variety of reasons why you were able to continue for so long with your offending behaviour.
Some of the boys feared they might be expelled, some believed they might not be believed and some believed, because of your popularity and influence, they simply had to endure the offending behaviour to remain in the inner circle.
It is staggering that you were able to get away with so much sexual abuse on so many young children over such a long period of time. The staggering proportions of it was one of the reasons why an inquiry was conducted.
The scale of seriousness of your offending is at the highest order, not because of any particular individual act, but because of the brazen and repetitive sexual abuse of so many boys over such a lengthy period of time. There was an arrogance and a confidence on your part that, because of your standing in the community, any complaint would not be believed.
…
I have read victim impact statements now from each of the victims. The impact of your offending has had substantial effect on the lives of your victims and caused great pain. The victim impact statements reveal the extent of the destructive effect.
In 1991 the appellant was convicted, after a partly completed trial, of 19 offences involving five male residents at St Andrews Hostel. Four of the complainants were aged 14 years and the other was aged 17. A total effective sentence of 6 years 9 months was imposed for these offences.
In 2011, the appellant was sentenced on his pleas of guilty to 10 offences involving six residents at St Andrews Hostel. The majority of the complainants were aged 14 to 15, with one aged 13.
As the sentencing judge noted, the totality of the appellant's offending against residents in his care and control at St Andrews Hostel is 63 offences involving 28 complainants. The total sentence for all this offending is 22 years 1 month.
The appellant was aged 68 at the time of sentencing. The sentencing judge accepted that the appellant had not offended since 1988 although he noted that the absence of offending was somewhat tempered by the fact that the appellant was no longer working with children and did not have the opportunities presented to him at St Andrews Hostel. The sentencing judge accepted the opinion of a psychiatrist that the appellant's risk of reoffending was likely to be small. Further, the appellant pleaded guilty at the first reasonable opportunity.
In view of the appellant's non‑offending over an extended period, the sentencing judge accepted that personal deterrence played little part in his assessment of the appropriate sentence.
After identifying the scope and effect of both limbs of the totality principle, the sentencing judge continued:
It is relevant in arriving at a total sentence in this matter to take into account that, including the victims of the matters I am dealing with and the victims of previous matters dealt with, there has been 28 victims.
In this matter before me there are 17 victims. Each victim exponentially increases the seriousness of your offending. Each victim has their own special harm that has been inflicted by you.
When applying the totality principles I take into account not only the offending I am dealing with but also the offending and sentences imposed on you in proceedings before this court in 1991 and 2011.
…
[Y]ou have received a total sentence of 13 years and one month for matters of a similar nature to that I am dealing with. I need to structure the sentence that I impose which takes into account the overall sentence that should apply to all matters including the 1991 matters and the 2011 matters (ts 53 ‑ 54).
The sentencing judge noted that, because of the number of victims and the number of offences, this case was without precedent in this State.
Legal principles
The appellant must establish that the sentencing judge made an express or implied material error of fact or law in the sentencing process. The appellant's claim of a breach of the totality principle requires the court to infer error from the total length of the sentence.
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].
A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.
The primary focus in this application is on the first limb of the totality principle. Particular emphasis is placed on the sentencing judge's findings that there was no need for specific deterrence and that the appellant was assessed as a 'low risk' of reoffending.
It is pointless to separate out and focus on individual sentencing considerations. The question for this court is whether it is arguable that, having regard to all the relevant sentencing factors, the total sentence of 9 years cumulative on the appellant's existing sentence is more than what is fairly necessary to achieve all of the recognised sentencing objectives, including punishment, retribution and general deterrence. Having regard to the nature, extent and poisonous effect of the appellant's offending over an extended period, eloquently and accurately described by the sentencing judge, the answer is an unequivocal no.
The appellant accepts, as he must, the correctness of the sentencing judge's observation that the facts of this case are without precedent in this State, yet goes on to refer the court to a number of cases (Pendleton v The Queen [2002] WASCA 4, Pendleton v The Queen [2013] WASCA 289, Do v The State of Western Australia [2013] WASCA 218, The State of Western Australia v Prince [2011] WASCA 22 and RFS v The State of Western Australia [2012] WASCA 58). The cases are not relevantly comparable and do nothing to advance the appellant's claim.
The total sentence the subject of this appeal reflects a carefully calibrated and moderated exercise of the sentencing discretion. There is no merit in the appellant's claim that the total effective sentence infringes the first limb of the totality principle.
As the recent case of AIM v The State of Western Australia [2014] WASCA 155 demonstrates, the appellant's claim that the total effective sentence breaches the second limb of the totality principle is also unmeritorious. The appellant had no significant physical or mental health conditions at the time of sentencing. Reliance on Hughes v The State of Western Australia [2014] WASCA 78 is misconceived. In that case the offender was convicted after a trial in January 2013 of six counts of sexual offending against three complainants in the period September 1980 to December 1982. The total sentence was reduced from 8 to 5 years on appeal. The appellant was aged 73 when he was sentenced and had a significant history of ill‑health including in particular, degenerative mental and physical conditions (dementia and Parkinson's disease). That was an appropriate case for a merciful disposition. This case is not. None of the other cases relied on by the appellant advance his claim that the total sentence is crushing.
Moreover even if, contrary to my view, the total sentence could be characterised as crushing, the appellant's offending as a whole is of such seriousness in its nature, extent and effect that he must be regarded as having forfeited the right to an expectation of a useful life after release: Gulyas v The State of Western Australia [2007] WASCA 263 [54].
There is no merit in the appellant's claim that the total sentence offends the second limb of the totality principle.
Conclusion
The appellant's ground of appeal is without merit. An extension of time must be refused and the appeal dismissed.
MAZZA JA: I agree with McLure P.
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