A Brisbane Supreme Court Justice has expressed his frustration at a lack of secure community facilities when ordering that a recidivist sex offender be detained indefinitely.
Last month, Justice Callaghan was asked to decide an application made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in relation to Shane Charles Waghorn, a 62-year-old with a history of sexual offences against children dating back to 1980.
In his decision delivered on 5 April, Justice Callaghan rescinded a supervision order made in February 2018, and ordered Waghorn be detained indefinitely, while declaring that continued incarceration should not become the default position because other, less restrictive accommodation was not available.
He referred to the 2018 decision made by the then Justice Boddice to outline the history of orders made under the Act in relation to Waghorn over the past 18 years.
In July 2006 a continuing detention order was made in relation to Waghorn. When the order was reviewed in December 2007, December 2008 and May 2010, Waghorn was deemed a serious danger to the community and the continuing detention order was affirmed.
In a January 2012 review, the court again found he was a serious danger to the community but released him subject to a supervision order in place until January 2027.
Waghorn breached the order in December 2012 and September 2013. In May 2016, the supervision order was rescinded and Waghorn was returned to prison.
In February 2018 he was released subject to another continuing detention order in place until February 2026. Waghorn breached the order in March 2020 and was returned to prison.
In assessing the latest application, Justice Callaghan said psychiatrists shared concerns about the type of address suitable for Waghorn, and suggested he be placed in accommodation that did not allow him a line of sight to public facilities where children would be present, such as parks and public swimming pools.
Neither Waghorn nor Queensland Corrective Services could find an address that could meet that recommendation, he said.
“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,” he said.
“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.
“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.”
Justice Callaghan said public concern should be expressed on behalf of Queensland taxpayers, who foot a bill of about $125,000 a year to keep Waghorn in prison.
“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,” he said.
“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.
“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.”
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