The State of Western Australia v McKenna - [2025] WASC 409

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MCKENNA [2025] WASC 409
CORAM:   QUINLAN CJ
HEARD:   26 SEPTEMBER 2025
DELIVERED          :   26 SEPTEMBER 2025
FILE NO/S:   SO 11 of 2025
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

DENNIS JOHN MCKENNA
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention should be made – Whether interim detention order would have practical effect – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made

Category: B

Representation:

Counsel:

Applicant	:	J Lloyd
Respondent	:	J Grinceri

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid (WA)

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

The State of Western Australia has applied for a restriction order in respect of the respondent, Dennis John McKenna, under the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of that application is before me today. In support of its application, the State relied upon an affidavit of Fleur Marie Allen, affirmed on 12 August 2025. Ms Allen's affidavit contains Mr McKenna’s criminal history, as well as several reports and assessments in relation to him. I have considered all of the affidavit evidence and need not set it out in detail.
Between 1976 and 1988, Mr McKenna sexually abused a large number of teenage boys who were boarders at St Andrews Hostel in Katanning. Mr McKenna was, at the time of that offending, the warden in charge of St Andrews Hostel. The scale of Mr McKenna's offending was of the highest order, committed for his own sexual gratification, brazenly and repetitively over a long period of time.
In total, Mr McKenna has been convicted of 65 offences of a sexual nature that were committed over that period. Nineteen of those convictions were recorded in 1991, at which time Mr McKenna was sentenced to a term of 6 years and 9 months imprisonment.
On three separate occasions from 2011 to 2015, Mr McKenna was convicted of a further 46 offences, also committed between 1976 and 1988. The total effective sentence for all of those convictions was 15 years and 6 months imprisonment.
Mr McKenna has been serving that total effective sentence of 15 years and 6 months imprisonment since 18 July 2011. He remains subject to that sentence of imprisonment. While Mr McKenna is eligible for release on parole, the Prisoners Review Board have declined to order Mr McKenna's release on parole. Unless the Prisoners Review Board reconsiders Mr McKenna's release on parole prior to that date, Mr McKenna must serve the balance of his sentence of imprisonment.
Mr McKenna's term of imprisonment will end on 17 November 2026. He will, by that time, be 81 years of age.
It is important to recognise that the release considerations that may be taken into account by the Prisoners Review Board, as with the sentencing considerations of the courts that sentenced Mr McKenna, are very wide. Those considerations include matters of punishment and retribution and the impact on the victims of Mr McKenna's crimes.
By contrast, as a matter of law, the only basis upon which this Court can make a restriction order under the Act (including a continuing detention order) is if the State proves, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Unless the Court can be satisfied that there is an unacceptable risk that a person will commit a serious offence in the future, the Court has no power to make a restriction order. As a matter of law, the Court cannot, and must not, make a restriction order under the Act based on matters of punishment or retribution. It would be unlawful for it to do so.

The main purpose of today's preliminary hearing is for me to decide whether there are reasonable grounds to believe that the Court might find that Mr McKenna is a high risk serious offender within the meaning of the Act. That is not a high standard. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
Mr McKenna's counsel accepted that I could be satisfied that there are reasonable grounds to believe that the Court might find that Mr McKenna is a high risk serious offender. I agree with that concession.
For that reason I will order that Mr McKenna undergo examination by a psychiatrist and psychologist and that the State's application for a restriction order be heard on 29 July 2026.
While the State initially applied for an interim detention or interim supervision order, it is, in my view, premature to make such an order. Mr McKenna still has almost 14 months of his term of imprisonment left to run. The high likelihood is that the State's application for a restriction order will be finally determined before there is any prospect of Mr McKenna being released from prison. In the event that the Prisoners Review Board decides to release Mr McKenna on parole prior to that time, the State (as it accepted) can renew its application for a restriction order. For that reason, I will otherwise adjourn the State's application for an interim detention order, with the parties having liberty to apply.
I can briefly set out my reasons for the orders I propose to make.
As I have said, Mr McKenna has a significant history of sexual offending against boys between 1976 and 1988.
The offending for which Mr McKenna has been in prison since 18 July 2011 includes four counts of unlawful and indecent dealing with a child under the age of 14 years; 22 counts of unlawful and indecent assault on a male person; five counts of unlawful carnal knowledge against the order of nature; four counts of permitting a person to have carnal knowledge of the appellant against the order of nature; and 11 counts of committing an act of gross indecency with a male person in private. Those offences were representative of broader conduct of a similar nature.
It is not necessary for me to describe all of that offending for present purposes. It suffices to observe that it all involved serious child sexual abuse that was brazen, repetitive and a gross breach of trust.
Given the lapse of time, all of Mr McKenna's convictions are for offences in the Criminal Code that have since been repealed and replaced by different offences. Nevertheless, all of the acts that constituted those offences would constitute a serious offence specified in the Act, and in particular would a constitute offences under s 320, s 321 or s 322 of the Criminal Code. Mr McKenna is therefore a 'serious offender under custodial sentence' within the meaning of s 35 of the Act.
Notwithstanding the fact that Mr McKenna has been in prison for over 14 years for that offending, there is very little evidence in the material before me as to his current level of risk, particularly given his advanced age. There is, in particular, no expert report since his imprisonment that directly addresses his risk of reoffending. The three reports that are available from the last ten years are:
(a)A program completion report in relation to the Think First Cognitive Skills Program dated 29 October 2015;
(b)A program completion report in relation to the Sex Offender Intensive Treatment Program dated 22 July 2021; and
(c)A parole assessment report prepared by Adult Community Corrections dated 9 October 2024.
As I have said, none of these reports include a formal risk assessment, although they do draw upon earlier assessments. In that regard, formal risks assessments were carried out in relation to Mr McKenna in 2012 using risk assessment tools (such as the Static-99R and the Risk for Sexual Violence Protocol), by both Dr Mack Hall, consultant psychiatrist, and Ms Jane Sampson, clinical and forensic psychologist.
At that time, Dr Hall concluded that 'Mr McKenna's risk of reoffending, as informed by the formulation of his past offending and the application of the above risk assessment tools, is assessed as low.' In that regard, Dr Hall observed that based on Mr McKenna's previous offending, were Mr McKenna to reoffend:
The victims would be people whom he was able to groom, and would suffer long‑term psychological harm. In Mr McKenna's case, given his notoriety, he is unlikely to gain access to such individuals other than through his remaining friends or supporters. A change and/or escalation in Mr McKenna's offending is very unlikely but could see him offend against family members, females or prepubertal males, or engage in the use of adjunctive non‑sexual violence. In my opinion, Mr McKenna would be unlikely to offend in the near future. In addition, he is already nearly 70 years of age. However, a possible warning sign that risk might be increasing or imminent in the future would be that of access to children from a position of trust.
Ms Sampson, in her 2012 report, was more pessimistic as to Mr McKenna's prospects of reoffending. She said:
Both the actuarial tool and the interviewer's clinical judgement suggest that this offender is at high risk of similar offending in the future, although a number of external variables such as his health, notoriety and lack of opportunity may reduce this. The latest structural approach of RSVP raises a number of concerns in relation to this man. He demonstrated a past deviant sexual arousal pattern which has perhaps responded to treatment. He appears to have psychological and social adjustment issues, and his self-awareness is poor, although improving as a result of treatment with a Psychologist. He requires further sex offender specific treatment and is scheduled for this later in his current sentence. Ongoing anti-depressant medication may also be of assistance to him in relation to his chronic depression. Recommendation is also for a cognitive skills program in relation to this and his emotional management.
In relation to the more recent reports I referred to above, the following matters may be gleaned as to Mr McKenna's future risk.
The Sex Offender Intensive Treatment Program report from 2021 described some treatment gains by Mr McKenna, including him having developed a basic awareness into deviant sexual interest and the need to implement appropriate boundaries. The report nevertheless reported that Mr McKenna reflected limited insight into how his sexual preoccupation supported 'cognitive distortions that enabled offending'. The authors said that Mr McKenna had developed a basic risk management plan that evidenced his current awareness of his risk factors, though he appeared to lack internal skills to manage those risks. The authors therefore said that Mr McKenna would benefit from a structured release to facilitate stability.
The October 2024 parole assessment report, referring to Ms Sampson's report from 2012 said that:
Despite Mr McKenna's lack of insight into the impact of his offending and limited gains during programmatic intervention, his risk of reoffending in a sexual manner appears to have reduced due [to] a number of external factors which include age, lack of access to victims, time since offending and notoriety.
The report, however, also noted that Mr McKenna was unable to demonstrate appropriate strategies to reduce his risk of reoffending in a sexual manner, 'with his primary plan being to avoid children'.
The report concluded:
Mr McKenna has completed programmatic intervention for sexual offending whilst in custody and has access to further sexual offending treatment in the community, which he has indicated he would be willing to participate in.
Mr McKenna has the practical transitional support … to assist him with maintaining his accommodation, linking him into services in the community and building a social support network.
Mr McKenna would benefit from a structured release whilst transitioning back to the community. Additionally, a period of a supervision would allow Adult Community Corrections to monitor Mr McKenna for any escalation of risk. He has previous completed Parole successfully and reports motivation to engage in further intervention.
Mr McKenna's proposed release plans has interventions to reduce his reoffending and he is unlikely to get an opportunity to engage in any further programmatic intervention in prison. Therefore, Mr McKenna's release to parole with strict conditions and electronic monitoring is cautiously supported.
The Prisoners Review Board, of course, took a different view and denied Mr McKenna parole.
On the basis of the reports in the evidence before me, it would be very difficult to make any clear assessment of Mr McKenna's risk of reoffending in future.
Nevertheless, what all of the recent reports indicate is that Mr McKenna continues to lack insight, appropriate strategies and internal skills to manage his risk of reoffending unsupervised. All of the reports have recommended that Mr McKenna be supervised and have external structure if released into the community.
This is, in my assessment, clearly relevant to whether there are reasonable grounds to believe that a Court might find that Mr McKenna poses an unacceptable risk that he will commit a serious offence if not subject to a restriction order under the Act. Given that Mr McKenna has been denied parole, as matters currently stand, when Mr McKenna completes his sentence, he will be released into the community wholly unsupervised. There is, of course, the possibility that he may be made subject to a post-sentence supervision order, but there is no evidence as to whether that will occur and, significantly, whether such an order would provide the level of supervision and structure contemplated by the recent reports.
Given the prospect that Mr McKenna might otherwise be released without adequate supervision, the persistent and serious nature of his past offending and the limited strategies he has for managing his risk alone, I am satisfied that there are reasonable grounds to believe that the Court might find that Mr McKenna is a high risk serious offender.
I will therefore make orders for the hearing of the restriction order application, and for the preparation of reports for that hearing.
In the meantime, the State initially submitted that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act.
To make a detention order, I must be positively satisfied that such an order is appropriate. I cannot be so satisfied for the simple reason that Mr McKenna is already in prison and still has almost 14 months of his term of imprisonment left to run. In all likelihood the State's application for a restriction order will be finally determined before there is any prospect of Mr McKenna being released from prison.
An interim detention order would, in those circumstances have no practical effect whatsoever and would be little more that symbolic.
In the event that the Prisoners Review Board decides to release Mr McKenna on parole prior to that time, the State can renew its application for an interim restriction order. For that reason, I will otherwise adjourn the State's application for an interim detention order, with the State having liberty to apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MPS
Associate to the Hon Chief Justice Quinlan
26 SEPTEMBER 2025