Attorney-General v Waghorn[2024] QSC 52

SUPREME COURT OF QUEENSLAND

Background

1. [1]
   This is an application under Division 5 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”).
2. [2]
   The respondent to this application is now 62 years of age and has a criminal history involving sexual offences against children. He has also previously demonstrated disregard for orders of the court. The criminal history, and particulars of the respondent’s lengthy relationship with the Act, are canvassed in Attorney-General for the State of Queensland v Waghorn [2018] QSC 23 per Boddice J (as His Honour then was) between paragraphs [4] and [13].
3. [3]
   In that application, made pursuant to s 27 of the Act, his Honour ordered that the respondent be subject to a supervision order, which contained 49 requirements. It remains in force until 12 February 2026.^[1] Certain requirements of that order relate to the purchase and use of smart telephones, electronic devices and pornography.
4. [4]
   This application is made following a complaint that the respondent contravened those particular requirements of the order.
5. [5]
   The statutory framework governing applications of this nature is now well understood. The relevant provisions are summarised in Attorney-General for the State of Queensland v FJA [2021] QSC 109 between paragraphs [19] and [21].

The alleged contraventions

1. [6]
   On 31 March 2020, a search warrant was executed at the respondent’s residence. During the search, the respondent admitted to having purchased a smart telephone which was not previously disclosed or approved by Queensland Corrective Services (“QCS”). The respondent also made admissions to accessing the internet and pornography.
2. [7]
   On 8 June 2020, the respondent pleaded guilty to four charges of contravening a supervision order and was sentenced in the Magistrates Court at Richlands in relation to those charges under section 43AA of the Act. The facts relevant to each of those four charges are the same facts which are alleged to constitute breaches of the respondent’s supervision order, and which thereafter form the basis of these proceedings. Despite being sentenced on each count to imprisonment for three months, suspended after just one month, the respondent has remained in custody pending determination of this application.
3. [8]
   The applicant did, on 7 December 2022, make application to Boddice J for release on the basis of “exceptional circumstances”. The materials before me are different and a separate legal framework is applicable, but the issues confronted by his Honour are not much different from those placed before me.
4. [9]
   His Honour refused the application and adjourned the proceedings to a later date.
5. [10]
   In fact, they have been adjourned on several occasions since. This was not by reason of any dispute about the contraventions. Consistent with his pleas of guilty, the respondent has at all times in these proceedings admitted to them. It follows that, pursuant to s 22(1) of the Act, I am satisfied that the respondent has contravened requirements of the supervision order made by Boddice J in 2018.
6. [11]
   Attention turns to s 22(2) of the Act, which requires the respondent to discharge an onus. That is, to satisfy the court that the adequate protection of the community can be ensured by a supervision order made pursuant to s 22(7), which would release the respondent from custody. In the alternative, if the respondent fails to discharge the onus, this court can rescind the current supervision order and make a continuing detention order pursuant to s 22(2). 

Issues for decision

1. [12]
   A review of the materials, oral evidence and submissions leads to the following conclusions:

   1. the respondent poses an unacceptable risk of sexual reoffending if released  into the community without a supervision order. This opinion is shared by Dr Karen Brown and Dr Ness McVeigh. Notwithstanding the length of time that has passed since he last committed a sexual offence, their evidence is in effect unchallenged and uncontradicted. There is no basis on which I could refrain from acting on it;
   2. The relevant risks are reduced by anti-libidinal medication, but this does not present as a complete answer to the concerns identified;
   3. The risks are also ameliorated because the respondent suffers from a number of physical ailments. However, the causes of these are poorly understood and they are too much of a variable to affect risk assessment to any great extent;
   4. The issues are, however, sufficiently significant for the respondent to qualify for NDIS support;
   5. The factors mentioned in (b) to (d), above combine with other features of the case to allow the possibility of the relevant risk being managed by a supervision order, subject to an important qualification; and
   6. That qualification stems from the requirement that, pursuant to s 16(1)(a) of the Act, any such order must include an “address”.
2. [13]
   The doctors share concern about the type of address that might be suitable for the respondent. As put by Dr Brown:

“Whilst I understand the limitations regarding supported placements for prisoners subject to a Supervision Order (DPSOA). I do have some concerns about a placement with proximity to children. I particularly note that during his last community release, Mr Waghorn was noted to be staring at children in shopping centres and this was one of the reasons that he was not progressed beyond stage 1 escorted curfew. I also note that Mr Waghorn has longitudinally presented as guarded regarding the extent of his sexual drive and his self report is generally unreliable in that regard. Although he is taking antilibidinal medication this will not completely eliminate his sexual drive or capabilities. For these reasons, it is my opinion that Mr Waghorn should be placed in accommodation that does not allow him line of sight to children playing or allow him to befriend children living in close proximity.”^[2]

1. [14]
   Dr McVie echoed the concern about “line of sight”. She was of the view that:

“Mr Waghorn should not be in accommodation that has a direct line of sight to public facilities where children would be expected to frequent such as parks and public swimming pools”.

1. [15]
   In her report of 31 October 2022, she further stated “if the same children are at the same place in line of sight every day it could potentially be a problem”.^[3]
2. [16]
   It is, in the circumstances, necessary to give effect to these opinions of both Dr Brown and Dr McVie. That is, to restrict the prospect of the respondent’s release into the community under a supervision order to circumstances in which that release will be to a facility or residence without close proximity to children.
3. [17]
   Accommodation that passes the “line of sight” test would be available in the area known as “the Precinct”. However, the sort of therapy demanded by the respondent’s ailments would not be available to him at the Precinct. QCS has rules that, in effect, prohibit the relevant service providers from entering the area. The respondent does not, therefore, propose an “address” in this area.
4. [18]
   He has proposed other addresses; QCS has investigated more residential possibilities. None of these passes the “line of sight” test. In the result the respondent cannot advocate for release on a supervision order to a suitable address. He cannot and does not discharge the onus that the Act places on him.
5. [19]
   This conclusion was reluctantly but realistically, allowed by the respondent during the hearing. Initially, however, he pressed for a different outcome. He might have been encouraged by something said in the hearing on 7 December 2022. As noted, Boddice J refused an exceptional circumstances application, but added, in relation to this  (then prospective) application:

“The appropriate course is to have the contravention proceedings brought on promptly for determination. At that point, Corrective Services will have to face the reality, that if a finding is made that the adequate protection of the community can be met, notwithstanding the contravention, by Mr Waghorn’s release into the community, that Corrective Services might find that conditions are imposed in relation to the requirements of supervision, which will be at their expense rather than have a person who is entitled to be released into the community kept in custody, not receiving the care that they have been assessed as being entitled to under the National Disability Insurance Scheme.”

1. [20]
   I take his Honour to have been expressing the frustration that is shared by me and others on this court when confronted with situations such as this. In Attorney-General for the State of Queensland v Ashley Lennon Gibson [2021] QSC 26 at paragraph [21], I endorsed the proposition that:

“Continued incarceration ... should not become the default position because of the unavailability of other less restrictive accommodation.”

1. [21]
   I am not, however, able to construe the Act in any way that permits me to impose a requirement on QCS to meet the expense of fixing this intractable situation. I have tried. The fact is that on plain reading the onus is on the respondent to make things happen for himself.
2. [22]
   The situation is farcical. Someone like the respondent himself will never have the resources or ability to complete the task of discharging that onus. Such dignity as is lent to these proceedings arrives only by reason of  the diligence of lawyers willing to do this work on legal aid rates and, it should be said, the good offices of those who administer these things on behalf of the Attorney-General.
3. [23]
   On this topic much judicial comment has been made and ignored, and the cause is unlikely ever to become popular out of public concern for people like the respondent.
4. [24]
   Public concern should, however, be expressed on behalf of the Queensland taxpayer. The result of this application will be that the respondent stays in a prison where every aspect of his existence will be paid for by Queenslanders at a cost that may approach $125,000 per year.^[4] And this just does not need to happen. The respondent could be living in private accommodation — which does not have to be salubrious – and have his needs met much more efficiently by the NDIS. Instead, he remains one in an ever-growing (and never diminishing) number of prisoners disappearing from view into a financially unsustainable vortex. Elementary economic rationalism demands that this situation should receive some attention.
5. [25]
   In the meantime, and for so long as the legislation reads as it does, the respondent cannot on the evidence discharge the onus with the consequence that a continuing detention order must be made. There is no material before me that identifies accommodation which would safeguard the community and satisfy me that the respondent can function acceptably upon his release.
6. [26]
   Being satisfied to the requisite standard that the respondent contravened requirements of a supervision order, the order of the Court is that:

2. 1.The supervision order made by Boddice J on 12 February 2018 be rescinded; and
3. 2.Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be detained in custody for an indefinite term for control, care or treatment.