The Queen v Waghorn, S.C

[1985] FCA 342

Re: THE QUEEN
And: SHANE CHARLES WAGHORN
No. ACT G335 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop J.
Neaves J.
Spender J.

CATCHWORDS

CRIMINAL LAW - sentence - abduction and indecent assault - plea of guilty - inadequacy - non-parole period - whether a single non-parole period should be fixed - whether judge may have regard to remissions and reductions under N.S.W. legislation -

Parole Ordinance 1976 (A.C.T.), s.7.

Crimes Act 1900 (N.S.W.) ss.76, 89

Probation and Parole Act 1983 (N.S.W.)

Parole Ordinance 1976 (A.C.T.)

HEARING

CANBERRA
#DATE 12:7:1985

ORDER

(1) that the Crown appeal be allowed;

(2) that the sentences and orders of Kelly J. be set aside and in lieu thereof the following sentences be imposed upon the prisoner;

(3) in respect of the offence of abducting the girl with intent to carnally know her, the prisoner be sentenced to 8 years' imprisonment;

(4) that in respect of the offence of indecent assault upon the same girl, the prisoner be sentenced to 3 years, 6 months' imprisonment;

(5) that in respect of the offence of indecent assault upon the woman, the prisoner be sentenced to 1 year's imprisonment;

(6) that this court fixes a period of 4 years during which the prisoner is not to be eligible to be released on parole;

(7) that all sentences be served concurrently and date from 28 September 1984 (the date when the sentences appealed from were imposed); and

(8) that the prisoner's cross-appeal be dismissed.

JUDGE1

This is a Crown appeal against sentences imposed by the Supreme Court of the Australian Capital Territory upon the prisoner on 28 September 1984. The prisoner has also cross-appealed against so much of the trial judge's sentences as relate to the non-parole periods fixed.

The prisoner was charged on indictment that on 21 January 1984 he abducted a young girl aged almost 9 years (she was born on 4 February 1975) with intent to carnally know her. He pleaded guilty to the charge, which was accepted by the Crown in full discharge of the indictment which contained another count of indecent assault upon the same girl.

The prisoner adhered to his pleas of guilty entered in the Court of Petty Sessions on 1 March 1984 to a charge of indecent assault upon the same child and to a further charge of indecent assault upon another female.

The maximum penalty for forceable abduction of a female of any age with intent carnally to know her contrary to s.89 of the Crimes Act, 1900 (NSW) in its application to the Australian Capital Territory, is imprisonment for 14 years. The maximum penalty for an offence of indecent assault upon a female contrary to s.76 of the said Act is imprisonment for 3 years or, if the female is under the age of 16 years, imprisonment for 5 years.

In respect of the offence of abduction, the sentencing judge imposed a head sentence of 5 1/2 years' imprisonment and fixed a non-parole period of 3 years. In respect of the offence of indecent assault upon the child, he imposed a sentence of 2 years' imprisonment and fixed a non-parole period of 1 year. In respect of the indecent assault on the woman, he sentenced the prisoner to 1 year's imprisonment and fixed a non-parole period of 6 months. He ordered that all three sentences be served concurrently and recommended such psychiatric assessment and treatment as may be available during the period of the prisoner's detention.

The Crown has appealed against the sentences imposed on the grounds that the sentencing judge failed to give due regard to the seriousness of the offences and the facts surrounding them; gave undue weight to the prisoner's personal circumstances, antecedents and rehabilitative needs; failed to incorporate adequate deterrent and retributive impact in the sentences imposed; failed to properly reflect the objects of ss.76 and 89 of the Crimes Act, 1900 (NSW); and the sentences imposed were manifestly inadequate.

The prisoner's cross-appeals are in respect of the non-parole periods fixed, on the grounds that the sentencing judge erred in law in having regard to remissions and reductions that the appellant may become entitled to under the Probation and Parole Act, 1983 (N.S.W.) and Regulations made pursuant thereto; and in fixing a non-parole period which seeks to counteract the reduction of the same to which the prisoner may become entitled by virtue of the said Act and Regulations.

It was not suggested on the hearing of the appeals that the sentencing judge had in any way misapprehended the facts in relation to each offence. The following recitation of the facts is taken from the trial judge's remarks on sentencing the prisoner, with minor adaptations.

On 21 January 1984 the child whom the prisoner abducted went to some shops with a 6 year old friend. They bought some lollies and after a time began to walk home. The two noticed the prisoner's car parked on the roadway at the end of a walkway on the incorrect side of the road. The prisoner smiled at the two children, approached the elder and picked her up in his arms and put her in the boot of his car which was open. The abducted child screamed but the prisoner drove off. Her companion ran to the abducted child's home to report what had happened to that child's mother. The abducted child screamed several times. Eventually the car stopped and the prisoner released the girl from the boot. At that stage he had travelled about 5 kilometres.

The prisoner was subsequently interviewed by detectives and gave them a version of what had happened which the trial judge was unable to accept. He was, however, satisfied that in some fashion the prisoner managed to get the child to sit in the front passenger seat of the car. The prisoner then drove to the Kambah Pool where he indecently assaulted her by inserting one of his fingers in her vagina causing her some moderate physical injury. The prisoner, in his interview with the police, attempted to give the impression that the child encouraged and assisted him in his dealings with her, but giving evidence on oath before the trial judge, he displayed some measure of sense and denied any encouragement or assistance on her part.

The prisoner drove the child back to her own neighbourhood after the assault where she was able to make her way home. She called out, "The man kidnapped me Mum" and then said, "You can't tell the police, Mum, he said if the police found him they'd shoot him". The prisoner admitted having smoked marijuana on the day. He was asked by a police officer, "Can you tell me how you put the girl in the boot?" He replied, "Just picked her up like you pick your wife up when you are first married, in my arms." He was next asked, "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." Subsequently he said that he and the child "started talking and she asked me why I kidnapped her. I said to her that I was planning on raping her but I said I wasn't going to do it."

The child suffered both physical and psychiatric injury. When examined at 4.45 p.m. on the day of the two offences by a medical practitioner, it was found that her eyes were reddened with signs of tears, she had typical post-crying sniffles. There was was dirt on both shoulders and a minor abrasion on the tip of the left shoulder. There was a minor abrasion over the right knee cap. There was dry blood high up on the inner surface of both thighs and vulva. The hymen was mostly intact but had a tear on the right side and the posterior frenulum of the labia minora was torn and this appeared to be the cause of the previous bleeding.

There was also evidence, to which the trial judge did not refer, that for some months up to the date of sentence the parents of the child had had trouble getting her to sleep unless the door of the bedroom was left open and lights left on. In shopping centres she was reluctant to leave her parents' side or to stray very far from them. They had to escort her to and from school and make sure she was not unaccompanied at any time. Detective Senior Constable Peters, in giving evidence, said he understood that these problems had since become less severe.

On 17 January 1984, i.e. four days before the commission of the above offences, a young woman was walking with her dog as she was wont to do. She first noticed the prisoner when he was standing some distance away from her at an intersection at which she had stopped. She continued down the street but before reaching the middle of the next block was passed by the prisoner who at the next intersection walked a few paces into a cross-street as if trying to find a particular house. The young woman stopped at the second intersection and continued down the street but noticed that the prisoner was following her at a distance of about 10-15 feet. She speeded up, not liking his following her, and turned right into another street. Glancing over her shoulder she saw the prisoner also turn right. She had gone a short distance into the street when she felt a hand grab her on the right breast and another hand on her left waist. She felt the prisoner's body very close to her and turned round and shouted at him. He ran away.

The prisoner's antecedents, which were recited by the sentencing judge and on the hearing before this court accepted as correct, are as follows.

He was born on 16 September 1960. His father died in 1972. He has one brother now 21 years of age. He is said to have left high school when aged 16 years at the end of third form without gaining any educational certificates. He apparently left school because he could not get on with his school mates and wanted to contribute to family finances. He has been unemployed for much of his life since he left school. He has worked for only about a quarter, or perhaps a little more, of the time since he left school. He has marked failings and inadequacies, particularly in respect of young women.

He has an unenviable record for sexual offences. The convictions and facts giving rise to them were not disputed and were referred to by the sentencing judge. The following recitation is taken from the sentencing judge's remarks.

The prisoner has a long history of sexual offences. On 31 May 1976 he assaulted a female indecently while she was walking through a vacant allotment by coming up behind her, reaching between her legs and grabbing her in the area of her vagina. He was dealt with in the Canberra Children's Court on 27 September 1976. The offence of indecent assault on a female was found proved. Without proceeding to a finding of guilt, the Court released the prisoner upon his entering into a recognizance self in the sum of $100 conditioned that he be of good behaviour for 12 months, accept and obey direction of a welfare officer and continue consultation with the Australian Capital Territory Psychiatric Services as long as was deemed necessary.

On 25 June 1976 he indecently exposed himself to a girl aged 8 1/2 years, then in a playground, on a number of occasions. He was dealt with for that offence in the Children's Court also on 27 September 1976 and was fined $40. Again on 27 September 1976 he was dealt with for another offence of indecent exposure which had occurred on 21 June 1976 when he exposed himself to a 12 year old girl riding her bicycle along a path. He made no attempt to stop or speak to the girl and when spoken to by police stated that he did it because he wanted the girl to stop and talk.

On 6 March 1977 the prisoner followed a young woman to a block of flats in Canberra. When she climbed the stairs to her flat she heard a knocking on the letterbox at the bottom of the stairs. She turned around and saw the prisoner standing with his trousers and underpants down and his person exposed. When spoken to by police he stated that his actions happened automatically when he saw the young woman and he had done them intentionally. Asked why, he said, "All that week I tried to talk to plenty of girls and they took no notice of me. They tell me to take off." He was dealt with by the Canberra Children's Court, on 7 June 1978. He was committed to an institution in New South Wales generally. The committal was suspended on his entering into a recognizance self in the sum of $200 with one surety in that amount conditioned that he be of good behaviour for three years and that he accept welfare supervision as directed by the Director of Welfare. On the same day he was dealt with in respect of his breach of the recognizance entered into on 27 September 1976 by being committed to an institution in New South Wales generally. The committal was again suspended upon his entering into a recognizance self in the sum of $200 with one surety in that amount to be of good behaviour for three years.

On 23 December 1980 the prisoner had sexual intercourse with a girl of 14 years. He was dealt with in the Canberra Court of Petty Sessions on 12 November 1981 and sentenced to 12 months imprisonment. That sentence was suspended upon his entering into a recognizance self in the sum of $500 to be of good behaviour for two years. No action was taken on the breach of the recognizance entered into following the proceedings on 7 June 1978.

On 10 November 1981 the prisoner spoke to two children, a girl aged 7 and a boy aged 5, at a construction site in Canberra. Eventually the little girl followed him to her house by herself. He kissed her and pulled down her panties and exposed himself to her after touching her on the vagina several times. Afterwards he got her to sit on a car seat in the garage of the house, kissed her again and then sat her on a coffee table removing her panties. He got her to lay on her back and placed his penis against her vagina and rubbed his erect penis against her vagina several times. It seems that no evidence was offered on a charge of assaulting the girl with intent to know her and he was convicted of indecent assault in the Canberra Court of Petty Sessions on 23 December 1981. He was sentenced to imprisonment with hard labour for 12 months but the sentence was suspended upon his entering into a recognizance self in the sum of $500 to be of good behaviour for two years and to pay to the Commonwealth a penalty of $500.

The primary submission of the Crown was that at least in relation to the sentences of 5 1/2 years with a non-parole period of 3 years for abduction with intent to carnally know, and 2 years' imprisonment with a non-parole period of 1 year for indecent assault upon the 9 year old girl, the sentences were demonstrably wrong as being so inadequate as to manifest error. The Crown referred to the following passage in R. v. Tait and Bartley (1979) 24 ALR 473 at 476:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. R. (1913) 16 CLR 336 at 339-40; R. v. Withers (1925) 25 SR(NSW) 382 at 394; Whittaker v. R. (1928) 41 CLR 230 at 249; Griffiths v. R. (1977) 15 ALR 1 at 15-17)."

The Crown referred to the prisoner's long history of sexual offences and to the sentencing judge's finding on the material before him that at the time of the abduction the prisoner's intention was to rape the child. It submitted that the sentencing judge was correct in taking into account the quality of the intent in fixing the appropriate punishment. The Crown referred also to the prisoner's severe personality disturbance as found by the sentencing judge on the evidence. In this respect the judge found the prisoner's history to be one of severe impairment of inter-personal relationships throughout adolescence and early adult life. He found that the prisoner has suffered from chronic low-grade depression throughout his adolescence and still suffers from that depression due to his perceived rejection by others and particularly by young women.

His Honour dealt with the substantial medical evidence before him in the form of medical reports and oral testimony. He concluded, however, that the community is increasingly at risk from the prisoner being able to remain at large and that the possibility of psychiatric treatment ought not to be taken into account. He referred to the remarks of Brennan J. in Channon v. R. (1978) 20 ALR 1 at 10.

It was submitted by the Crown that on all that material and the facts of the offences themselves, the sentences for the offences in relation to the 9 year old girl should have approximated more closely to the maximum sentences provided for the offences. It referred particularly to the fact that the offences were initiated in a public park in relation to a young child whom the prisoner put in the boot of his car with intent to rape; and further, that the child was in captivity in the boot of the car whilst the car travelled some 5 kilometres.

I have not attempted to set out all the arguments of counsel for the Crown. The offences against the 9 year old girl are beyond doubt of a very serious nature, particularly having regard to the prisoner's previous convictions for sexual offences. The period of imprisonment which the legislature has fixed for the offence of abduction with intent to carnally know is indicative of the gravity of such offences. The offences were committed on a young child who could not really protect herself.

The prisoner's expressions of contrition in his evidence before the Supreme Court were urged upon the sentencing judge in submissions made on the prisoner's behalf before sentence was passed. He gave the following evidence before the trial judge:

"Can you tell his Honour how you feel about what you did to her that day? - - - I feel very sick in the stomach. It has really drawn me apart. I have not slept since. I cry quite often. It has just really upset me, plus I am just scared that I probably could go for another - I am scared of the same thing happening again.
What is it that upsets you about the offence? - - - I emotionally and physically hurt her.

On being referred to that evidence his Honour said in argument that he would take the evidence into account, or words to that effect. His Honour also took into account that the prisoner had been in custody from 21 January 1984 until 28 September 1984 when he was sentenced.

In R. v. Tait and Bartley, supra, a Full Court of this court said that a maximum penalty is reserved for the worst type of case falling within the relevant prohibition. The observance of this principle provides the flexibility in sentencing which secures proportion and comparability among sentences imposed. The prescribing of a maximum penalty in respect of an offence not only marks the limits of the court's discretionary power as to sentence, it also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence. In Reynolds v. Wilkinson (1948) 51 WALR 17 at 18 Dwyer C.J. said:

"It may be said that it is the policy of the law that the maxima are intended for the worst cases of the sort and that first offenders should, in the absence of special malignancy, be treated with greater leniency than others. But how far the punishment should recede from the maximum in any particular case is a matter for the discretion of the tribunal at trial and a wide discretion is left to that tribunal. Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves."

To my mind the Crown has established that the circumstances of the offences against the young girl and the antecedents of the prisoner warrant sentences approximating more closely to the maximum sentences provided for the offences. The facts of the offences against the 9 year old girl are grave indeed and the prisoner has prior convictions for offences of similar character, although less severe.

The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems at the the same time to accord with the general moral sense of the community in relation to such a crime committed in such circumstances. The prisoner's prior record is also a strong factor in the sentencing process: R. v. Geddes 36 SR(NSW) 554; R. v. Cain (1974) VR 759 and R. v. Williscroft and Others (1975) VR 292.

In my view, the head sentence imposed in relation to the offence of abducting the child with intent carnally to know her does not accord with the general moral sense of the community and this Court should increase the head sentence to 8 years' imprisonment. For the same reasons, I am of the opinion that the head sentence of 2 years' imprisonment for the offence of indecent assault upon the girl is also too lenient. The maximum penalty for that offence is 5 years' imprisonment and I would propose a head sentence of 3 years, 6 months. I would not interfere with the sentence of imprisonment for one year in respect of the indecent assault on the woman.

I turn to consider the fixing of the appropriate non-parole period. In passing sentence upon the prisoner for each of the three offences, the sentencing judge fixed a head sentence and specified a non-parole period in relation to each sentence. In my view, having decided that the case was an appropriate one in which to specify a non-parole period, the sentencing judge should have fixed only one non-parole period pursuant to s.7(1) of the Parole Ordinance 1976.

Section 7 is in the following terms:

"7.(1) Subject to sub-section (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Ordinance."
(2) Sub-section (1) does not apply -

(a) in the case of a person sentenced to one term of imprisonment - if that sentence is suspended;

(b) in the case of a person sentenced to 2 or more terms of imprisonment - if both or all of those sentences are suspended;

(c) if the court, having regard to the nature of the offence or offences and the antecedents of the person convicted, considers that the fixing of a non-parole period would be inappropriate; or

(d) if the person is sentenced to imprisonment for life.

(3) Sub-section (1) applies whether the offence in respect of which a sentence is imposed was committed before or after the commencement of this Ordinance and whether the person was convicted before or after that commencement.

(4) Where a court sentences a person to imprisonment but fails to fix, or fails properly to fix, a non-parole period, the Court may, upon application by the Attorney-General, the informant or the person sentenced, fix a non-parole period."

In fixing the non-parole periods the sentencing judge referred to the views he had expressed in Rasic v. The Queen (unreported, 11 November 1983) to the effect that he had taken account of statutory and other remissions including remissions on the non-parole period and said that he adhered to the views he had expressed in that case. There is now clear authority in the High Court that the New South Wales Probation and Parole Act 1983 has no operation in relation to Territorial offenders. Such offenders are subject to the Parole Ordinance 1976 (A.C.T.) and remain so subject, even while serving sentences in New South Wales (The Queen v. Paivinen (unreported decision of the High Court delivered 18 June 1985)). It is wrong for a sentencing judge or magistrate in the Australian Capital Territory to increase a non-parole period specified pursuant to s.7 of the Parole Ordinance 1976 (A.C.T.) for the purposes of counteracting the effect of s.25 of the New South Wales Probation and Parole Act 1983 and the Regulations made thereunder.

Accordingly this Court should now fix a non-parole period within the limits of a reasonable exercise of discretion such as will formulate a duly proportioned and properly balanced sentence appropriate to meet all the circumstances of the case (Anderson v. R. (1977) 19 ALR 212). The court should specify as the non-parole period the minimum period of imprisonment to be served because this court considers that the crimes committed call for such detention (Power v. The Queen (1973) 131 CLR 623 at p.628). I would fix a non-parole period of 4 years.

The orders I propose are:

(1) that the Crown appeal be allowed;

(2) that the sentences and orders of Kelly J. be set aside and in lieu thereof the following sentences be imposed upon the prisoner;

(3) in respect of the offence of abducting the girl with intent to carnally know her, the prisoner be sentenced to 8 years' imprisonment;

(4) that in respect of the offence of indecent assault upon the same girl, the prisoner be sentenced to 3 years, 6 months' imprisonment;

(5) that in respect of the offence of indecent assault upon the woman, the prisoner be sentenced to 1 year's imprisonment;

(6) that this Court fixes a period of 4 years during which the prisoner is not to be eligible to be released on parole;

(7) that all sentences be served concurrently and date from 28 September 1984 (the date when the sentences appealed from were imposed); and

(8) that the prisoner's cross-appeal be dismissed.

JUDGE2

I have had the advantage of reading the reasons for judgment prepared by Gallop J. The relevant facts and circumstances are there set out and I have no need to repeat or supplement them. For the reasons given by his Honour I concur in the orders he proposes.

JUDGE3

This is an appeal by the Crown against sentences imposed on Shane Charles Waghorn ("Waghorn") on 28 September 1984 by a Judge of the Supreme Court of the Australian Capital Territory, in respect of one charge of abduction and two charges of indecent assault. There is a cross-appeal by Waghorn in respect of the non-parole period imposed by the learned sentencing judge. The appeal raises in quite an acute form the difficulty in the sentencing process generated by the combination of an offence, the facts of which are objectively very grave, and an offender, the subjective circumstances of whom are unfortunate.

The abduction charge alleged a breach of s.89 of the Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory, in that on 21 January 1984, Waghorn abducted a young girl (who was born on 4 February 1975 and thus almost nine years old) with intent carnally to know her. The maximum penalty for that charge is fourteen years. The second charge alleged a breach of s.76 of that Act in that he assaulted that young girl and at such time committed an act of indecency upon her, she being then under the age of sixteen years, to wit, almost nine years old. The maximum penalty for that offence is five years. The third also alleged a breach of s.76 of that Act in that on 17 January 1984, he assaulted a young woman, who was aged about twenty years, and did at the time of such assault commit an act of indecency upon that young woman. The maximum penalty for that offence is three years.

The learned sentencing judge, on the abduction charge, imposed a period of imprisonment of five and a half years and fixed a non-parole period of three years. On the charge of indecent assault of the girl who had been abducted, he imposed a period of imprisonment of two years and fixed a non-parole period of one year, and on the charge of indecent assault of the young woman imposed a term of imprisonment of one year with a non-parole period of six months. He ordered all three sentences to be served concurrently and recommended such psychiatric assessment and treatment as may be available to be made available to Waghorn during the period of his detention.

Waghorn is a single man born on 16 September 1960, and thus aged twenty-four years at the date of sentence. He had been in custody since 21 January 1984. On 1 March 1984, he had pleaded guilty to both of the indecent assault charges, and to the charge of abduction. However, when he came before the Supreme Court of the Australian Capital Territory on 17 April 1984, for sentence in relation to the charge of abduction, he resiled from the plea of guilty. The matter was remitted to the Court of Petty Sessions to be dealt with in accordance with s.90A(7) of the Court of Petty Sessions Ordinance 1930 (A.C.T.). On 8 June 1984, he was committed for trial. The matter was relisted for trial on 24 September 1984, but on 21 September he advised that he wished to change his plea on the abduction charge to one of guilty. All three charges were, with Waghorn's consent, then dealt with together on 25 September 1984.

The period in custody between arrest and sentence was approximately eight months, some measure of that time being attributable to what the learned sentencing judge described as the "backing and filling" of Waghorn.

The Crown has appealed against the sentences imposed on the ground that those sentences were manifestly inadequate. Particulars of that failure are that the learned sentencing judge:-

(a) failed to give due regard to the seriousness of the offences and the facts surrounding the offences;
(b) gave undue weight to the respondent's personal circumstances, antecedents, and rehabilitative needs;
(c) failed to have proper regard to the deterrent and retributive aspects of sentence; and
(d) failed properly to reflect the objects of ss.76 and 89 of the Crimes Act 1900, (N.S.W.).

The cross-appeal is directed to the non-parole period imposed in respect of each of the sentences. The grounds of the cross-appeal are that the learned sentencing judge erred in law in having regard to remissions and reductions that the appellant may become entitled to under the Probation and Parole Act 1983 (N.S.W.) and regulations enacted pursuant thereto, and that his Honour erred in fixing a non-parole period which sought to counteract the reduction in the non-parole period to which the appellant may become entitled by virtue of the said Act and regulations.

The facts referred to by the learned sentencing judge in imposing sentence were not the subject of argument on appeal. I therefore substantially adopt his Honour's statement of them.

On 21 January 1984, the young child whom Waghorn abducted went to some shops with a six year old friend. They bought some lollies and after a time began to walk home. Waghorn had parked his car on the incorrect side of the road at the end of a walkway. He smiled at the two children and approached the elder. He picked her up and put her into the open boot of his car. The abducted child screamed before Waghorn drove off. Her companion ran to the abducted child's home and reported to that child's mother what had happened.

Waghorn drove the girl some five kilometres while she was in the boot. She screamed several times during that journey. Eventually the car stopped and Waghorn released the girl from the boot. Subsequently, he persuaded her to sit in the front passenger's seat in the car. He then drove to the Kambah pool where he indecently assaulted her by inserting one of his fingers into her vagina causing her moderate physical injury. He then drove the girl back to her own neighbourhood where she was able to make her way home. The girl called out "The man kidnapped me, Mum", and said "you can't tell the police, Mum, he said if the police found him they would shoot him".

Waghorn said he had smoked marijuana that day. When asked by a police officer why he had put the girl in the boot of the car, he answered "At first I had the intention of taking her somewhere and raping her and then killing her". Subsequently he said that he and the child "started talking and she asked me why I kidnapped her. I said to her that I was planning on raping her but I said I wasn't going to do it."

A medical practitioner examined the young girl on the afternoon of 21 January 1984. Apart from abrasions there was dried blood high up on the inner surface of both thighs and the vulva. The hymen was mostly intact but had a tear on the right side. The posterior frenulum of the labia minora was also torn and this appeared to be the cause of the previous bleeding. There was also some evidence of emotional difficulties experienced by the young girl, which difficulties seemed to be easing.

Four days earlier on 17 January 1984, the young lady whom Waghorn assaulted was walking her dog. Waghorn followed her for some distance. She noticed this, speeded up and turned right into another street. He continued to follow her. She had only walked a short distance up that street when she felt a hand grab her on the right breast, another on her left waist. She felt Waghorn's body close to hers. When she turned and shouted at him, he ran away.

The antecedents and criminal record of Waghorn were referred to by the learned sentencing judge and were similarly not the subject of challenge on the appeal.

Waghorn was born on 16 September 1960. His father died in 1972. He has one brother now aged twenty-one. He is said to have left high school at the end of third form and when aged sixteen years, without gaining any educational certificates. He apparently left school because he could not get on with his schoolmates and wanted to contribute to the family finances. He has been unemployed for most of the period since leaving school. He seems to have worked for only about a quarter or perhaps a little more of that time. He has marked failings and inadequacies, particularly in respect of young women and the learned sentencing judge accepted that he sustained particular damage when a young woman with whom he was friendly was raped.

Waghorn told police that he had smoked cannabis since he was twelve and that from about 1978 he has used other drugs such as cocaine, lysergic acid (L.S.D.) and heroin on a casual basis. He said that he had not formed any dependence on those drugs but used whatever was available.

Waghorn's criminal record is very disturbing. On 31 May 1976, he indecently assaulted a female while she was walking through a vacant allotment by coming up behind her, reaching between her legs and grabbing her in the area of her vagina. In respect of that offence, he was dealt with in the Canberra Children's Court on 27 September 1976. The offence of indecent assault on a female was found proved. Without proceeding to a finding of guilt, he was released by the Court upon his entering into a recognizance self in the sum of $100 conditioned that he be of good behaviour for 12 months, accept and obey direction of a welfare officer and continue consultation with the Australian Capital Territory Psychiatric Services as long as was deemed necessary.

On 25 June 1976, he indecently exposed himself on a number of occasions to an eight year old girl in a playground. He was dealt with for that offence on 27 September 1976 in the Children's Court and was fined $40. That same day, he was similarly dealt with for another offence of indecent exposure which had occurred on 21 June 1976 when he exposed himself to a twelve year old girl riding her bicycle along a path. He made no attempt to stop or speak to the girl and when spoken to by police stated that he did it because he wanted the girl to stop and talk.

On 6 March 1977, Waghorn followed a young woman to a block of flats in Canberra. Climbing the stairs to her flat, she heard a knocking on the letterbox at the bottom of the stairs. She turned and saw Waghorn standing with his trousers and underpants down and his person exposed. When spoken to by police, he stated that his actions had happened automatically when he saw the young woman and that he had done them intentionally. Asked why, he said, "All that week I tried to talk to plenty of girls and they took no notice of me. They tell me to take off."

He was dealt with in respect of this matter by the Canberra Children's Court on 7 June 1978. He was committed to an institution in New South Wales generally. The committal was suspended on his entering into a recognizance self in the sum of $200 with one surety in that amount conditioned that he be of good behaviour for three years and that he accept welfare supervision as directed by the Director of Welfare. On that same day he was dealt with in respect of his breach of the recognizance entered into on 27 September 1976 by being committed to an institution in New South Wales generally. The committal was again suspended upon his entering into a recognizance self in the sum of $200 with one surety in that amount to be of good behaviour for three years.

On 23 December 1980, Waghorn had sexual intercourse with a fourteen year old girl. He was dealt with in the Canberra Court of Petty Sessions on 12 November 1981 and sentenced to 12 months imprisonment. That sentence was suspended upon his entering into a recognizance self in the sum of $500 to be of good behaviour for two years. No action was taken on the breach of the recognizance entered into following the proceedings on 7 June 1978.

Two days earlier, on 10 November 1981, Waghorn had spoken to two children, a girl aged seven and a boy aged five, at a construction site in Canberra. Eventually the little girl followed him to her house by herself. He kissed her and pulled down her panties. He then exposed himself to her after touching her on the vagina several times. Afterwards, he got her to sit on a car seat in the garage of the house and kissed her again. He then sat her on a coffee table and removed her panties. He got her to lie on her back and rubbed his erect penis against her vagina several times. It seems that no evidence was offered on a charge of assaulting the girl with intent carnally to know her; he was convicted of indecent assault in the Canberra Court of Petty Sessions on 23 December 1981. He was sentenced to imprisonment with hard labour for 12 months but the sentence was suspended upon his entering into a recognizance self in the sum of $500 to be of good behaviour for two years and to pay to the Commonwealth a penalty of $500.

This record is disturbing, not only because of the offences themselves, but because it shows persistent unlawful sexual conduct of increasing severity. This trend involves the commission of offences whilst on recognizances to be of good behaviour.

Throughout this prolonged period, with his deteriorating record, Waghorn has been treated with a tenderness which is difficult to understand and which may in retrospect have been a factor contributing to the commission of the offences the subject of the present appeal. Until the sentences imposed on 25 September 1984, he had not been sentenced to spend a single day in prison, notwithstanding the repeated commission of offences whilst he was on recognizances for good behaviour.

The psychiatric state of Waghorn was the subject of much evidence before the learned sentencing judge. It is necessary for a proper understanding of this feature to set out rather fully the learned sentencing judge's assessment of Waghorn's psychiatric condition.

His Honour said:-

"I am satisfied from the evidence of Dr. Knox, a Consultant Psychiatrist, that Mr. Waghorn has a severe personality disturbance. His history is one of severe impairment of inter personal relationships throughout adolescence and early adult life. His social inadequacy may have been triggered by the early death of his father. He has suffered from chronic low-grade depression throughout his adolescence and still suffers from that condition. Clearly it is in large measure due to his perceived rejection by others and particularly by young women. There are some indications that in abducting the child he was motivated in part by a desire for company and friendship. Fortunately he did not proceed further in his assault upon her when his actions caused her pain as obviously they must have done. Dr. Knox expressed the view that Mr. Waghorn had no serious intention of killing the child. He said that Mr. Waghorn related his intentions dramatically and frequently lied."

His Honour referred to Dr Knox's report of 2 April 1984, wherein Dr Knox stated:-

"I believe that the severity of (Mr. Waghorn's) personality disturbance and sexual deviancy warrants intense psychiatric treatment. I believe that (Mr. Waghorn) has suffered from a significant degree of depressive illness in recent years secondary to his poor interpersonal capacities and lack of self-confidence. There is gross immaturity in (Mr. Waghorn) reflected in his need to relate to individuals far younger than himself, and he expresses his sexuality likewise in this immature manner.

I believe that (Mr. Waghorn's) inadequate behaviour flows from his disturbed social environment during his childhood and adolescence. I believe that (Mr. Waghorn) will continue with disturbed behaviour in the future if he does not receive intensive treatment.

I believe that Mr. Shane Waghorn should receive in-patient psychiatric treatment until such time as attending therapists decide that he is ready for discharge and could continue in long-term out-patient management."

In his report of 24 July 1984, Dr Knox stated that there was no fundamental change in Waghorn's condition or outlook since his earlier report, and said:-

"I believe this man will take several further years to reach a more stable level of maturity where he will no longer be of risk to the community."

A letter from Dr. L. Darcy, Medical Superintendent of Morisset Hospital, was tendered. Dr Darcy had available to him the views of Dr Knox and a copy of the record of interview to which I have earlier referred. In Dr Darcy's letter of 2 August 1984, he says:-

"Morisset Hospital does have suitable programmes for improving the social skills of such a young man in a rather sheltered situation and with the guidance of a range of skilled personnel. We are not in a position to offer him intensive psychotherapy by any single professional person. Any influence on him would be of a more diffuse nature over a period of time in a reasonably wide range of living situations and by several different people. I would agree with Dr. Knox's approach of treating Mr. Waghorn with anti-depressive drugs as such persons frequently do improve in their mood on such drugs and they are then more able and likely to exhibit better behaviour.

If the court decided to try some disposition other than imprisonment it would be necessary to have adequate and sustained follow up observation of Mr. Waghorn and there would need to be a ready mechanism to return him to custody promptly should his behaviour warrant this.

I would be prepared, if it was the wish of the court, to admit Mr. Waghorn as a Voluntary Patient to Morisset Hospital for social development training if it were a condition also that he be followed up also by the N.S.W. Probation and Parole Service, one of whose officers visits this hospital weekly."

His Honour had before him the view of the Prison Medical Service and his Honour said:-

"A letter from Dr. Ward, the Acting Director of the Prison Medical Service at Long Bay Prison was tendered. He had read Dr. Knox' earlier report and noted that Mr. Waghorn seemed to have a severe personality disorder manifesting itself in poor interpersonal relationships, sexual inadequacy and poor self esteem. He thought such a disorder very difficult to treat even in the best environment using adequate resources and did not believe that Mr. Waghorn could be effectively treated in prison, in part because of lack of psychiatric staff but mainly because the prison environment would tend to negate the benefits of any psychiatric help offered. He thought that if sent to prison Mr. Waghorn would benefit from a period in the Special Care Unit at Long Bay if prepared and able to set goals for himself and to co-operate in a therapeutic community."

On this material his Honour made important findings which were not the subject of challenge. He said:-

"I am satisfied . . . by his answers given the investigating detectives that (Waghorn) initially intended to rape the child. In my opinion the quality of the intent may be taken into account in fixing the appropriate punishment. To abduct a child with intent to rape her is plainly worthy of much greater penalty than ought to be visited upon a young man who takes away or detains against her will a young woman with the intent and in the hope that she may eventually yield to his advances or even marry him and with no slightest wish to cause her any other harm than that occasioned by the deprivation of her liberty.

I am satisfied that the community is increasingly at risk from Mr. Waghorn should he remain at large. I accept the possibility that his use of drugs is not that of an addict but it seems that he has wanted to stop using them but has been unable to do so. The disinhibiting effect of such drugs as he has used is, I think, obvious. I find it to have been a factor in this case.

On the material before me I am satisfied that the possibility of psychiatric treatment for Mr. Waghorn ought not to be taken into account in this case."

Having referred to the observations by Brennan J. in Channon v. R. (1978) 20 A.L.R. 1 at p.10, his Honour expressed the view that he was "not satisfied at all that there is a reasonable prospect that the treatment of Mr. Waghorn in prison will reduce or eliminate his abnormality".

As to the Crown's appeal, it was not suggested that there was error by the trial judge in evaluating the evidence or in making any of the findings to which he came. The simple assertion was that the sentences were so manifestly inadequate as to manifest error and call for the intervention of an appellate court. In aid of that submission, reference was made to the well known passage in R. v. Tait & Bartley (1979) 24 A.L.R. 473 at p.476:-

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. R. (1913) 16 C.L.R. 336 at 339-40; R. v. Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v. R. (1928) 41 CLR 230 at 249; Griffiths v. R. (1977) 15 ALR 1 at 15-17)."

The effect of his Honour's orders was that the head sentence would be five and a half years. The three year non-parole period was intended to operate so as to require Mr Waghorn to serve at least two years imprisonment.

It cannot be doubted that the learned sentencing judge approached his task with care and compassion. It was submitted by the Crown, however, that, when regard is had to the circumstances of the abduction charge, both sentences involving the young child are manifestly inadequate. The young girl victim was just short of her ninth birthday; the intention of Waghorn at the time of the abduction was rape; the abduction occurred from a public place; the young girl was locked in the boot of a motor vehicle; she was detained in the boot of that motor vehicle for some five kilometres, screaming; as a result of the offences she suffered physical injuries and has suffered emotional harm; the maximum penalty in respect of a forcible abduction is 14 years imprisonment. So far as the indecent assault charge on that girl is concerned, the significant features of that offence are the child's age, the nature of the indecent assault, the injuries suffered, and the fact that the maximum penalty is five years imprisonment.

The sentencing process involves an amalgam of inconsistent purposes, or at least purposes which are not necessarily consistent. As Wells J. noted in R. v. Kear (1978) 2 Crim. L.J. 40 at p.42:-

"In the span of centuries during which judges have been sentencing, the possible purposes that have, again and again, presented themselves to judicial minds, and that jostle one another in their endeavours to gain paramountcy are (1) to deter; (2) to prevent; (3) to reform, or, in modern parlance, to rehabilitate; (4) to exact retribution.

It is not possible in any one case to give full rein to any one of those purposes. To adopt one to the exclusion of the rest is likely to produce results that are absurd, unjust and ineffectual."

Brennan J. in Channon v. R. (supra) at p.5 quoted with approval a passage from the judgment of Herron C.J. in R. v. Cuthbert (1967) 86 W.N. Pt.1 (N.S.W.) 272 at p.274, where he said:-

"The function of the criminal law and the purposes of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime."

See also Napier C.J. in Webb v. O'Sullivan (1952) S.A.S.R. 65 at p.66, where he said:-

"The Courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the Court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."

One illustration of this approach is R. v. Nicholls (1970) 55 Cr. App. R. 50, where, for indecent assault of a girl aged seven, Nicholls was sentenced to an extended term of imprisonment for ten years. The maximum term of imprisonment, subject to the provisions for an extended sentence in the Criminal Justice Act 1967, was five years. Ten years was the maximum term to which any sentence could be extended. Nicholls was aged forty-three years and had a very serious history of similar offences extending over some eighteen years. In that case, Sachs L.J. said at pp.152-153:-

"In cases such as the present there is one factor which the Court has to regard as paramount, and that is the protection of these wretched little girls from a man such as the appellant. The Court appreciates it may be a tragedy in the individual case for the person who cannot restrain himself from actions which make him a menace to have a characteristic that necessitates his being treated as a danger to the public, but a danger he is and in those circumstances the only proper course which a court can take is to see that he is not a danger that is allowed to roam about. There is no hope in these cases, as experience has shown, from courses such as probation or allowing the man to be under the care of relatives and so forth. They can only be visited by the maximum custodial sentence, appreciating those prospects which may be of help to the man should the time come for parole. In those circumstances, this Court has come, without any hesitation, to the conclusion that this sentence was entirely correct and the appeal must be dismissed."

While appreciating the very real advantage the learned trial judge had in seeing and hearing Waghorn in this case, and accepting that the maximum imprisonment of fourteen years for the offence of abduction should be reserved for the worst type of case, I cannot but conclude that, having regard to the particular circumstances of the abduction offence, the psychiatric condition and prognosis of the offender and his prior criminal history, five and a half years imprisonment in this instance is manifestly inadequate.

In my view the head sentence for the offence of abduction should be eight years imprisonment.

Similar considerations lead me to the conclusion that the sentence of two years imprisonment for the indecent assault on the young girl should be set aside. I would impose a head sentence of three years and six months for this offence. In my opinion no reason has been shown for interfering with the head sentence of one years imprisonment in respect of the indecent assault on the young woman.

As to the question of the non-parole period, two aspects require consideration. The first is whether, where multiple sentences are imposed, a separate non-parole period ought to be fixed with respect to each sentence. The second concerns the course adopted by the learned sentencing judge in this instance in taking into account the likely reduction in the non-parole period by the application of recent New South Wales legislation and thereupon increasing the non-parole period which he fixed to three years so as to ensure, as far as it is possible, that Waghorn would serve at least two years in prison.

As to the first, s.7 of the Parole Ordinance 1976 (A.C.T.) provides inter alia:-

"7(1) Subject to sub-section (2), where a court sentences a person to a term of imprisonment of not less than 12 months or to terms of imprisonment that, in the aggregate, are not less than 12 months, the court shall fix a period as the period during which the person is not to be eligible to be released on parole in pursuance of this Ordinance.

(2) Sub-section (1) does not apply-
(a) in the case of a person sentenced to one term of imprisonment - if that sentence is suspended;

(b) in the case of a person sentenced to 2 or more terms of imprisonment - if both or all of those sentences are suspended;

(c) if the court, having regard to the nature of the offence or offences and the antecedents of the person convicted, considers that the fixing of a non-parole period would be inappropriate; or

(d) if the person is sentenced to imprisonment for life. . . ."

In this case, sub-s.(2) does not apply.

I am of the view that, where, as here, a number of sentences are imposed the terms of which are in the aggregate not less than twelve months, the Parole Ordinance 1976 (A.C.T.) requires the fixing of a single period during which the person sentenced is not to be eligible to be released on parole.

As to the second aspect, in R. v. Paivinen (judgment of the High Court given on 18 June 1985, as yet unreported), the High Court, consisting of Gibbs C.J., Mason, Brennan, Deane and Dawson JJ., held that the Probation and Parole Act 1983 (N.S.W.) had no operation in relation to Territorial offenders; consequently, the increasing by a judge of the period which a prisoner should serve before becoming eligible for parole, for the purpose of counteracting the effect of s.25 of that Act and reg. 19 of the Regulations enacted pursuant thereto, involved error. The Court was not therefore obliged to answer the question whether a judge in a case where those provisions did apply could properly "adjust" his assessment of the non-parole period to take account of their application, so as to provide that that prisoner would serve what the judge in his deliberate assessment determined to be the minimum period the prisoner should serve before release.

In this case, not only because the head sentence has been altered, but also because in the fixation of the non-parole period the same error as identified in Paivinen has occurred, it is necessary to fix an appropriate non-parole period.

In Power v. R. (1974) 131 C.L.P. 623 at p.628, Barwick C.J., Menzies, Stephen and Mason JJ., in their joint judgment said:-

"In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."

I would fix four years as the period during which Waghorn is not to be eligible to be released on parole.

I agree with the orders proposed by my brother, Gallop.