R v Waghorn

[1993] QCA 196

IN THE COURT OF APPEAL  [1993] QCA 196

SUPREME COURT OF QUEENSLAND

C.A. No. 259 of 1992

Brisbane

[R v. Waghorn]

THE QUEEN

- v -

SHANE CHARLES WAGHORN

Applicant

Mr Justice Pincus

Mr Justice McPherson

Justice White

Judgment delivered 2 June 1993

Judgment of the Court.

THAT IN ADDITION TO THE ORDERS MADE ON 9 NOVEMBER 1992, THE APPLICANT IS SENTENCED, IN LIEU OF THE SENTENCES IMPOSED FOR THOSE OFFENCES BY THE PRIMARY JUDGE, TO A SENTENCE OF 14 YEARS IN RESPECT OF EACH OF THE OFFENCES OF UNLAWFUL AND INDECENT ASSAULT AND 14 YEARS IN RESPECT OF THE OFFENCE OF ATTEMPTED RAPE.

RECOMMENDATION THAT ANY CONSIDERATION OF PAROLE TAKE INTO ACCOUNT BOTH THE REASONS GIVEN BY THE FULL COURT OF THE FEDERAL COURT ON APPEAL FROM KELLY J., REPORTED IN (1985) 16 A. CRIM. R. 422, AND THESE REASONS, COPIES OF WHICH TO BE SENT BY THE REGISTRAR FOR INCLUSION IN THE RECORDS OF THE QUEENSLAND COMMUNITY CORRECTIONS BOARD.

CATCHWORDS:                CRIMINAL LAW - UNLAWFUL AND INDECENT ASSAULT - ATTEMPTED RAPE - whether sentences inadequate.

Counsel:Mr S Herbert QC for the appellant

Mr M Byrne for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:  18 May 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 259 of 1992

Brisbane

Before Mr Justice Pincus

Mr Justice McPherson

Justice White

[R v. Waghorn]

THE QUEEN

- v -

SHANE CHARLES WAGHORN

Applicant

JUDGMENT OF THE COURT

Judgment delivered 2 June 1993

On 9 November 1992 the Court allowed an appeal against a declaration made under s.18(1) of the Criminal Law Amendment Act of 1945 that the applicant Waghorn is incapable of exercising proper control over his sexual instincts and set aside a direction that he be detained in an institution at Her Majesty's pleasure.  The hearing in this Court was adjourned by consent to a date to be fixed, to enable the parties to make submissions as to what further orders should be made.  The parties have since produced written submissions and the matter has also been the subject of further oral argument.

The applicant was, on 4 June 1992, convicted on four counts relating to his treatment of a young girl on 23 March 1992.  They were: unlawful deprivation of personal liberty, unlawful and indecent assault with circumstances of aggravation (two counts), and attempted rape.  The declaration and direction we set aside were based on these convictions.  The complainant was 10 years of age at the time she was attacked by the applicant.  She was seized and forced into the boot of the applicant's car as she was making her way home.  The applicant drove off but was pursued by a concerned citizen who was, however, eluded.  The child was taken to a lonely area in the bush, her hands tied behind her back and her shorts and underpants were taken off.  The applicant put a finger into her vagina and put his penis against her genital area but was unable to achieve penetration.  The police came and saved the child from further harm.

As will appear, the applicant has been guilty of mistreatment of young girls on previous occasions.  When the matter was heard in the District Court in August 1992, there was a difference of view between doctors who had been consulted as to the nature of the applicant's condition, causing him to attack young girls.  One view was that he is unable to control his impulses, which completely overcome him, whereas the opposing view was that the applicant consciously decides to do what he does.  Whichever view is correct, it is plain that his tendencies constitute a serious problem and a danger to young girls.  He was born in 1960.  In 1976 there was found proved against him in the Canberra Childrens Court an offence of indecent assault on a female; he came up behind the female while she was walking through a vacant allotment, reached between her legs and grabbed her in the area of her vagina.  A little later he indecently exposed himself on a number of occasions, to a girl aged 8½, in a playground, in June 1976 he indecently exposed himself to a 12 year old girl, and in the following year he did the same with respect to a young woman.  In 1981 he was sentenced to 12 months imprisonment for having had intercourse with a 14 year old girl in 1980, but that sentence was suspended on his entering into a recognisance.  In 1981 he sexually molested a 7 year old girl and was convicted of indecent assault and again given a suspended sentence.

In 1984 he committed another offence on a child.  She was (as in the present case) forcefully put into the boot of his car; the applicant subsequently sexually assaulted her.  When asked by the police: "Why did you put that girl in the boot of your car?" he answered, "At first I had the intention of taking her somewhere and raping her and then killing her".  On that occasion, in 1984, the girl suffered injury to her pudenda, from the applicant's fingers having been inserted in her vagina.

The applicant committed another, lesser, sexual assault on a woman in 1984 but it is unnecessary to go into the details of that.

For the 1984 offence of abducting a girl with intent carnally to know her, the applicant was sentenced in the Supreme Court of the Australian Capital Territory to five years hard labour, but on appeal to the Full Federal Court the sentence was increased to eight years and the Court fixed a non-parole period of four years. Other sentences imposed for related offences were also increased; the case is reported in (1985) 16 A. Crim. R. 423.

As we have mentioned, the judge below exercised his discretion against the applicant in the present case under the Criminal Law Amendment Act of 1945; his Honour also sentenced the applicant to imprisonment for seven years in respect of the offences of unlawful and indecent assault and attempted rape.  The declaration and direction made under the 1945 Act having been set aside, it appears to us to be appropriate to increase each of the seven-year sentences to the maximum, 14 years.

The applicant has shown himself to be a persistent and serious danger to young girls, and it may be difficult for anyone to reach a stage of satisfaction that the applicant is unlikely to repeat his past transgressions. It was common ground, and we accept, that the case is not one in which it is open to the Court to impose an indefinite sentence, under part 10 of the Penalties and Sentences Act 1992. We have given consideration to the terms of a recommendation with respect to parole.

It would be irresponsible, we think, to recommend that the applicant be eligible for release on parole after having served a specified number of years of the terms of imprisonment we have imposed.  It may be that it will never be reasonably safe to release the applicant at any time during the 14 years terms of imprisonment.  We think the better course is to recommend and we do recommend, that the applicant not be released on parole until there is sufficient evidence to show clearly that it is unlikely that he would after release commit further sexual offences against young girls.  We have said this, appreciating that if the recommendation is followed it may have the result that the applicant serves the full 14 years.

We recommend that any consideration of parole take into account both the reasons given by the Full Court of the Federal Court on appeal from Kelly J., reported in (1985) 16 A. Crim. R. 423, and these reasons, copies of which are to be sent by the Registrar for inclusion in the records of the Queensland Community Corrections Board.

The order of the Court is that in addition to the orders made on 9 November 1992, the applicant is sentenced, in lieu of the sentences imposed for those offences by the primary judge, to a sentence of 14 years in respect of each of the offences of unlawful and indecent assault and 14 years in respect of the offence of attempted rape.