The Queen v Weldon[1997] QCA 432

DAVIES JA:  The applicant was sentenced in the District Court on 16 September last for the offence of taking an unmarried child under the age of 16 years out of the custody or protection of his parents and against the will of his parents.  The sentence imposed was one of two years imprisonment, the maximum penalty for that offence.  The applicant is 28 years of age, having been born on 30 December 1968.

The offence occurred between 11 July 1995 and 20 May 1996 when the applicant was 26 or 27.  He pleaded guilty to the offence but this was only after a trial date had been fixed and after the Crown had indicated the likelihood of a more serious charge being preferred.  The learned sentencing Judge having taken the plea of guilty into account determined not to reduce the sentence on that account.  I do not think that there was any error in His Honour's conclusion in that respect. 

The question before this Court then is whether the offence was such as to justify a sentence for the maximum term.  In order to justify this, it is not necessary, of course, that the offence be the worst imaginable case.  It is sufficient that it is of the worst kind.  The question is whether the circumstances of this case make it one of the worst kind.

The applicant's victim was a male child born on 15 February 1981.  He was 14 years of age at the time the applicant took him away from his parents and turned 15 during the period he was in the applicant's custody.  The applicant was a friend of a young man who had formed a relationship with the complainant's sister.  In that capacity he came to know the complainant and whilst the complainant was living at home he visited the applicant frequently.

There was a period during which the complainant's family went through some stress during which it appears the complainant's father was charged with a criminal offence.  It appears that it was during this period that the complainant commenced to spend periods overnight with the applicant.  Then one day in November 1994 he did not return home from school and it was found that he and the applicant had disappeared.  They were not found again until 19 May 1996.

It emerged that during this period the applicant was aware that the police and, of course, the complainant's parents were looking for him and the complainant and it seems likely he moved from place to place in order to avoid apprehension.  After a local newspaper in Dubbo, where the family lived, had printed a story and photograph regarding the child's disappearance in March 1995, the applicant telephoned the child's mother and said, "Don't involve me or any of my family in any of this.  You watch out for your back and watch out for your shop."

The child's parents went to considerable lengths to find their son, alerting police stations in Queensland and New South Wales, making numerous trips through New South Wales and Queensland, and making numerous appeals through the media.  There can be no doubt of their immense anguish during this period.  That was a fact the learned sentencing Judge was entitled to take into account.

There are two very disturbing features of this case.  The first is that in 1991 the applicant had been convicted on two counts of committing an act of indecency with a child under 16 and two counts of homosexual intercourse, which it was accepted meant acts of oral intercourse not sodomy, with a male between 10 and 18 years.

The second is that there was evidence from which, together with that fact, it could be inferred that the applicant had an unnatural passion for the complainant.  It was accepted by the Crown on sentence that there was no evidence of any sexual conduct by the applicant against the complainant and the learned sentencing Judge rightly accepted that that was so and sentenced on that basis.

Nevertheless His Honour admitted, as he was entitled to, some deposition evidence from which he was entitled to, and did infer, the unnatural passion to which I have already referred.  There was evidence that the applicant and the complainant slept together in a double bed.  There was evidence from another witness who had observed the applicant and the boy regularly taking showers together up to three times a day and there was evidence from another witness of observing the applicant spending one hour massaging the boy with oil. 

In addition a police officer found the applicant and the boy under a doona in a vehicle with the curtains drawn, the applicant naked and the boy without trousers.  Apparently, in respect of the previous offences, the applicant had said that he was in love with the boy who was the victim of his offences.

From all of this, whilst accepting that no sexual conduct had been proved, His Honour was entitled to infer that the applicant's intentions towards the boy involved an unnatural sexual passion with the consequence of serious risk of sexual interference to the boy. 

There was tendered before the sentencing Judge a report from a psychiatrist who had given the report for forensic purposes to the Legal Aid Office who was then acting for the applicant.  The psychiatrist's only source of relevant information appears to have been the applicant and a friend who accompanied him to the psychiatrist's rooms.  He was not shown the depositions from the Magistrates Court hearing which had taken place about a year before.  Relying on the evidence which had been given to him, the psychiatrist said that this evidence "would appear to indicate there was no sexual aspect to his relationship with Tod [the complainant] nor even of an overtly coercive aspect".

It was submitted by Mr Hamlyn-Harris for the applicant that natural justice required that before this opinion was rejected the defence should have been entitled to call evidence or that the matter should have been put to defence.  I do not agree.  The depositions were readily available to the Legal Aid Office and it would have been, and should have been, appropriate for them to put those depositions before the psychiatrist.  In the absence of them, the learned sentencing Judge was entitled to take the view, in my opinion, that the opinion was of little or no value and to reject it.

The matters to which I have referred in my view take this case well beyond that of an ordinary abduction.  It is one which has overtones of the most sinister kind.  In those circumstances I think it justified the imposition of a sentence at least towards the high end of the range for this offence and I do not think that in these circumstances a sentence of the maximum term was manifestly excessive. I would therefore refuse the application.

de JERSEY J:  I agree.  Being realistic I think that the criminality involved in this offence warranted a substantially longer term than the two years which the Judge imposed, being the maximum available to him, and I am prepared to go so far as to express my own view that it would have warranted imprisonment of up to five to six years.

I endorse the sentiments expressed by the sentencing Judge about the desirability of increasing the maximum attributed to this offence in the Criminal Code and serious consideration should be given to that. 

I would also take the opportunity to alert the parole authorities to what I would presently see as the desirability of the applicant serving substantially more than the ordinary one half of the term simply because of the gravity of the offence and the need through continued incarceration to impress on the applicant, and others, the complete unacceptability of this sort of conduct.

MUIR J:  I agree with the reasons given by Mr Justice Davies.

DAVIES JA:  The application is refused.