Attorney-General v Waghorn[2006] QSC 171

SUPREME COURT OF QUEENSLAND

[1] McMURDO J:   This is an application for a continuing detention order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003.  The respondent is now aged 45 and nearing the end of a term of fourteen years’ imprisonment.  His release date is 20 August 2006. 

[2] The Attorney-General must prove that the respondent is a serious danger to the community in the sense of s 13(2) of the Act which provides:

“(2)A prisoner is a serious danger to the community as mentioned in subsection (1) if             there is an unacceptable risk that the prisoner will commit a serious sexual offence -

(a)if the prisoner is released from custody; or

(b)if the prisoner is released from custody without a

supervision order being made.”

The Attorney’s case is that the respondent’s release, even with a supervision order, presents an unacceptable risk.  On the respondent’s behalf, it is conceded that there is an unacceptable risk in his being released if unsupervised, but it is argued that the risk from a supervised release is not proved to be unacceptable.

[3] In the Attorney’s case, extensive affidavit material was read of which the most important evidence, in the way in which the case was conducted on each side, was that of three psychiatrists each of whom also gave oral evidence.  In the respondent’s case, there is an affidavit of the respondent and one of an officer from Legal Aid Queensland (as to possible residential accommodation), neither of whom was cross examined.  There is really no dispute as to the primary facts of the case and ultimately the outcome turns upon the effect to be given to the psychiatric evidence.  Subsection 13(3) provides that the court may be satisfied as to the necessary level of risk only if satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify that decision. 

[4] On 21 August 1992 the respondent was convicted on his own plea in the District Court of two counts of indecent assault with a circumstance of aggravation, one count of attempted rape and one count of deprivation of liberty.  The offences involved the same complainant who was a ten year old girl.  He was sentenced to seven years’ imprisonment on the indecent assault and attempted rape counts and eighteen months’ imprisonment on the other count.  The sentencing judge also made a declaration under s 18(1) of the Criminal Law Amendment Act 1945 that the respondent was incapable of exercising proper control over his sexual instincts and directed that he be detained at Her Majesty’s pleasure.  That declaration was set aside by the Court of Appeal, which also increased the seven year terms to fourteen years.[1]  The facts of the offences were summarised in the judgment of the Court as follows:

“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.”[2]

[5] Amongst the respondent’s criminal history was a very similar offence in 1984 for which he was imprisoned by the Supreme Court of the Australian Capital Territory.  On that occasion, he abducted a girl of eight years who was with a younger friend when approached by the respondent.  He picked up the girl and put her in the boot of his car before driving off as she screamed.  After travelling about five kilometres he released the girl from the boot, put her into a seat in the car and then drove to a place where he indecently assaulted her by inserting a finger in her vagina causing her injury.  When he was 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”.[3]  He was convicted of abducting the girl with intent carnally to know her.  For that offence he was originally sentenced to five and a half years’ imprisonment but that was increased to eight years on appeal to the Full Federal Court.[4]

[6] At the same time, the respondent was also convicted of another sexual assault, also committed in 1984, this time upon a young woman, for which he was sentenced to a concurrent term of one year.  And prior to these matters he had been sentenced to various suspended or non-custodial terms for offences of indecent assault upon females and indecent exposure to girls and women.  In 1980, when he was about 20, he committed an offence of intercourse with a 14 year old girl for which he was given a suspended term and in the following year he sexually molested a 7 year old girl for which he was again given a wholly suspended sentence.

[7] The respondent is the older of two sons who were born and reared in Canberra.  His father died when he was 12 and his younger brother died in 2001.  His mother is an elderly invalid living interstate and he has not seen her since about 1994.  He has had no contact whatsoever with her for several years.  His late brother was in a de facto relationship from which there are teenage children.  They live with their mother, near to where the respondent’s mother lives.  They will have nothing to do with him.  So the respondent is effectively without the support of any family.

[8] The respondent left school as soon as he was able, at the age of 16.  He had a poor work history and was frequently unemployed.  He was in prison for about four years from when he was 24, and then a few years later, he began his present term.  He has done various jobs in prison but he has not acquired any skill which gives him any promising job prospects.  He last worked in prison about twelve months ago.  He has no specific proposal about employment should he be released.

[9] Nor is there any specific proposal for where he would reside.  Not long after he commenced his present prison term, he met some people through the Prison Fellowship program with whom he then had an association for some years.  There was an understanding that upon his release he would live with them and work in their lawn mowing business.  But subsequently it was realised that this was impracticable, because that work could bring him into contact with young children.  The respondent’s evidence is that ultimately, in March of this year, he was advised by these people that he could not live with them.  He says, and I accept, that it is for this reason that he has not been able to make arrangements for accommodation upon his imminent release date.  In the last few months he has been in contact with another person whom he also met through the Prison Fellowship program but that person has been unable to find accommodation for him at least thus far.  According to the affidavit of Mr Caughlan, of Legal Aid Queensland, the Catholic Prison Ministry has offered to assist to arrange accommodation but the respondent has said that he does not wish to reside even temporarily at a boarding house or hostel with other former inmates.  It appears that if he is released he will have at least the support of a release worker from that ministry as well as that of a person from whom he has had frequent visits in the course of the Prison Fellowship program.  He also has the support of individuals associated with Correctional Centre Chaplaincy, with whom he has had dealings over the years.  In summary then, he would have the assistance of these various individuals but no support of family or friends. 

[10] I turn then to the psychiatric evidence.  Pursuant to a risk assessment order, the respondent was examined by the psychiatrists Dr Lawrence and Dr Moyle.  The other psychiatrist who gave evidence is Professor Whiteford, who examined him in June 2005.

[11] Dr Lawrence’s opinion is that the respondent suffers from paraphilia and appears to be paedophilic (exclusively female).  There is no evidence of psychopathy, but his personality is flawed by “passive, dependent, avoidant and schizoid characteristics”.  She describes him as “an isolated loner with no obvious personal support networks, no particular skills, no realistic plans for his future and no strong motivation from internal sources to overcome difficulties or achieve a change”.  She says that the respondent demonstrates a range of sexual deviations or paraphiliac behaviours which commenced in mid-adolescence.  She is concerned that he has not satisfactorily completed a Sexual Offender Treatment Program although his participation (to an extent) in three programs over the years, including two during his current term, has been of some benefit although he has not completed a course. Her opinion is that he is at “high risk” of re-offending sexually against the prepubertal girls if released at this time.  In her oral evidence, she said that if the respondent were to be released now:

“It is hard to see just how conditions could be organised to cover all the risk factors … that are still obviously present … I would prefer that he had satisfactorily completed a Sexual Offender Treatment Program before he was released from prison and I’d like to see a fairly clearly delineated and defined program for him, some stable environment … set up for him to go to before he was released and that isn’t present at the moment … I’d like to see him in some occupation as well as some better direction in his life than he seems to have at the moment.”

[12] Dr Lawrence also described his susceptibility to episodes of depressed mood and his despondency as to his future prospects.  She said that the respondent does not appear to accept full responsibility for himself, to the extent of what she thinks is warranted and needed for his ultimate rehabilitation.  She acknowledged the difficulty for him in engaging in Sexual Offender Treatment Programs through his having to confront his own past but she was nevertheless critical of his failure to complete a program through what she sees as a want of motivation.

[13] Dr Moyle interviewed him on 10 April 2006.  He describes the respondent as a paedophile who “remains at high risk of violent sexual re-offending if released into the community”.  He says the respondent suffers from multiple paraphilias and a schizoid personality disorder.  Dr Moyle is “particularly concerned about the increasing severity of sexual behaviours over time; the need to still share some responsibility, and the uncertainty that he will be able to control his impulses on release (which is) freely acknowledged with good insight”.  He says that “there is little evidence that (the respondent) feels comfortable that he can control by himself his sexual drives if he was released”.  Of particular concern is what Dr Moyle describes as “his past unresponsiveness to treatment and … responsivity issues limiting any potential to respond to treatment”.  Like Dr Lawrence, Dr Moyle feels that the treatment which the respondent has received in prison has been beneficial.  He says that the respondent is now more insightful as to his conduct and that he has made “really quite significant advances … in the time he has been in prison”.  When asked whether “appropriate and adequate supervision” would reduce what he sees as a high risk of re-offending, Dr Moyle said that the supervision “would have to be extreme” and that supervision “is a help rather than a treatment in its own right”.  In his oral evidence, Dr Moyle said that “it’s premature probably to have him released completely into the community just with supervision”.  If the respondent is not released, Dr Moyle says that he should receive treatment which would include a completed participation in a Sex Offender Treatment Program, continuing individual psychotherapeutic support and management of any mental disorders together with assistance for “realistic release plans addressing work, accommodation, recreation and stress management, preferably with a good work history in jail”.

[14] Professor Whiteford examined him in June 2005.  He describes the respondent’s history of paedophilic sexual fantasies commencing at the age of sixteen with an escalation in his offending behaviour thereafter.  He says the respondent has had episodes of what he considers to be clinically significant depression.  He notes that he has received “little in the way of rehabilitation since he has been in custody” and specifically, that he has not completed a Sex Offenders Treatment Program.  In his view he meets the relevant diagnostic criteria for paedophilia and has schizoid personality traits as well as a vulnerability to depression.  Professor Whiteford wrote:

“Even if it is accepted that Mr Waghorn has been able to suppress his paedophilic fantasies in the recent past, his history from the age of sixteen is so profoundly enmeshed with paedophilic fantasies that he has never been able to establish normal sexual relationships with adult women, has not been able to tolerate physical or psychological intimacy and there is no evidence on my examination of him that these issues have been resolved.  I consider Mr Waghorn extremely vulnerable to redevelopment of paedophilic fantasies and at high risk of acting out those fantasies if he was released into the community.”

[15] The evidence of the three psychiatrists is not challenged and their views are relevantly consistent.  I accept the evidence of each.  The question is then whether the Attorney-General has thereby proved that the risk of the commission of a serious sexual offence is unacceptable should the respondent be released even under a strict supervisory regime as, through his counsel, he now proposes.  Under that regime, he could not reside within 200 metres of a school or some other public place or business where children frequent, he could not be involved in any club or organisation which has the participation of children and he could not be at other places such as shopping centres at times when school children are most likely to be there.  He could not have any care of children or unsupervised contact with them and nor could he have a relationship with a woman who had children under 16 in her care.  He would also have to submit random drug and alcohol testing and attend a psychiatrist or psychologist from time to time who would be permitted to disclose details of his treatment to the Department of Corrective Services.  And he also agrees to conditions that he undertake programs or courses as directed by a Corrective Services Officer as well as other conditions such as strict reporting conditions.

[16] I must have regard to the considerations specified in s 13(4).  The first of those is the content of the reports prepared by the psychiatrists to which I have already referred, and the extent to which the respondent co-operated in those examinations.  As the Attorney-General accepts, the respondent fully co-operated.

[17] I must have regard to any other medical, psychiatric, psychological or other assessment relating to the prisoner.[5]  Professor Whiteford’s report is within that category.  But there are also reports of a psychologist, Ms Farmer, which are dated 20 November 2001 and 27 May 2002.  In the 2001 report, Ms Farmer wrote of his medical and psychiatric history during this term of imprisonment, which included a period of suicidal behaviour in 1992 and an incident in 1993 in which he attempted to seriously injure himself with a razor blade.  She records information from the respondent that in committing the offences for which he is currently in prison “he knew he would get caught but the impulse to carry out the fantasy when an opportunity presented itself had been overwhelming”.  That is consistent with the facts, as they appear from the judgment of the Court of Appeal, in that he abducted the girl in daylight in circumstances where he must have realised that others were likely to have witnessed the event.  Ms Farmer remarked that there had been “an escalating level of aggression over the years” and that there was a high risk of recidivism indicated by actuarial risk predictions.  She noted that he had failed to complete the Sex Offender Treatment Program and was then reluctant to participate.  In her view the respondent needed “to do much more therapeutic work in this area as it has not been adequately covered in the incomplete intervention he has had so far”.  In her second report, Ms Farmer again referred to the respondent’s then reluctance to undergo any treatment.  She was then assessing his request to be given leave of absence, and her recommendation was that it not be granted because the risk to the community was in her view still unacceptably high.  She wrote that:

“Mr Waghorn retains some naïve and unrealistic expectations about how easy it will be for him to change the patterns of a lifetime of dysfunctional and deviant behaviour.  Repeating the SOTP in a new centre with different facilitators and updated program content, as well as access to enhanced sexual education, is still his best available means of rehabilitation, whether or not he chooses to live without sexual experience in the future.”

[18] Paragraph (c) of s 13(4) requires a consideration of information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future.  That information is within the psychiatric and psychological reports already discussed.  Of course, not all of that is adverse to the respondent.  As already mentioned, the respondent has acknowledged his offending, has demonstrated insight and is aware of his propensity to re-offend.

[19] As to s 13(4)(d), there is certainly a pattern of offending behaviour.  For example Dr Lawrence noted the similarity between the 1984 and 1992 offences: they each “involved the daylight abduction of a young, prepubertal female child into a car, imprisoning her in the boot of the car, driving off, binding her hands, and then performing sexual activities with her in an attempt to achieve sexual arousal”.

[20] Paragraph (e) of s 13(4) requires a consideration of the prisoner’s efforts to address the cause of his behaviour, including whether he has participated in rehabilitation programs.  In 1993 he was involved for about 15 weeks in the Sexual Offenders Treatment program.  As his counsel submits, it is not entirely clear why he was not accepted into the final phase of that program.  After that he seems to have been disinterested in the program, as Ms Farmer noted in her 2001 report.  But there was a change in attitude such that by 2004 he made another attempt at the program which he did not successfully complete because he found it too stressful to confront his past at least in the presence of other prisoners.  This has to be understood against the background of his depression, or episodes of depressed mood, and that he had engaged in some acts of attempted self harm earlier in this term of imprisonment.  More recently, in October 2005 he agreed to participate in the High Intensity Sexual Offenders Program.  I accept that he has made some efforts to address the cause or causes of his behaviour, including by participation in these programs, but he has not shown the determination to rehabilitate himself which Dr Lawrence would see as necessary.  I accept that he is now prepared to engage in that program, but the unanimous professional view is that at present the absence of a successful completion of the program substantially affects the risk of re-offending.

[21] I have mentioned already that his participation in rehabilitation programs has had some beneficial effect (s 13(4)(f)).  He has completed other programs, which are the Alternatives to Violence Program, the Sexuality in Relationships Program, the Intimate Relationships Program, the Assertiveness Program and the Pre-Release and Settlement Program.  And I have mentioned already his antecedents and criminal history (s 13(4)(g)) as I have the various professional assessments of the risk of the commission of another serious sexual offence (s 13(4)(h)).

[22] As the respondent’s counsel effectively concedes, there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made.  In that sense at least, he is a serious danger to the community.  Undoubtedly, the imposition of a supervision order proposed on behalf of the respondent, would tend to lesson that risk.  For example, whilst he complied with the suggested conditions as to his place of residence and his not being in places such as near schools and in shopping centres at certain times, the potential for a set of circumstances under which he would be more likely to re-offend would be diminished.  But even full compliance with such conditions as to his whereabouts would not remove the risk of re-offending.  And of course there is the prospect that he would not consistently comply with those conditions. 

[23] Whilst he has derived some benefit from courses undertaken in prison, the unanimous professional opinion is that he is yet to receive the benefit from a successful completion of a Sexual Offenders Treatment Program.  His rehabilitation is far from complete and, as Dr Lawrence says, “he demonstrates no active drive or motivation to accept fully the responsibility for dealing with his own difficulties into the future”.  The offences for which he is presently in custody were very serious indeed, and their similarity with the 1984 offences is a cause for particular concern.  And the prospects of his successful release into the community at this stage are surely less for the circumstances that he is “an isolated loner”[6] with no family or friends, no particular job prospects and no accommodation arrangements.

[24] In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6).  The purpose of orders under s 13 is not punishment but the protection of the community: Fardon v Attorney-General (Qld).[7]  The existence of some risk of re-offending is not sufficient: the risk must be of an unacceptable order.  Each of the psychiatrists is of the view that the risk is high and in my conclusion it is unacceptably high even under a supervision regime as is proposed.  Of course the drastic consequences of a continuing detention order must be considered.[8]  And the objects of the Act include the provision of control, care or treatment to facilitate the rehabilitation of the prisoner: s 3(b).  It is submitted for the respondent that “prison based programs have nothing further to offer him” and that there is a real prospect that if he is kept in prison he will not receive appropriate therapeutic assistance.  It may be the case that the respondent would have a better response to therapy outside the prison than by participation in the Sexual Offenders Treatment Program if kept in custody.  But nevertheless, the paramount consideration is the protection of the community and as the respondent’s argument ultimately concedes, a continuing detention order is warranted if it is proved by the Attorney-General that the risk of re-offending is unacceptable if he is released even under strict supervision.  In my conclusion that matter is proved, and in that event, the respondent suggests no discretionary consideration against the making of the continuing detention order which is sought.

[25] There will be a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003.  I shall hear the parties as to any ancillary orders.