Hore v The King
[2023] SASC 108
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
HORE v THE KING
[2023] SASC 108
Judgment of the Honourable Justice Hughes
21 July 2023
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - CONDITIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Application for release on licence.
In February 2016, the Supreme Court imposed an indefinite detention order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on the basis that the applicant was unwilling to control his sexual instincts within the meaning of that section. The offending which led to this order being imposed consisted of one count of indecent assault against a child, one count of aggravated indecent assault against a child, and three counts of failing to comply with ANCOR reporting conditions.
On 1 March 2018, the applicant filed this application for release on licence pursuant to s 24 of the Criminal Law (Sentencing) Act 1988. That Act was repealed and the application fell to be determined under s 59 of the Sentencing Act 2017 (SA). The application was dismissed in October 2020 on the basis that the applicant had not satisfied the Court that he was willing and capable of controlling his sexual instincts. An appeal by the applicant to the Court of Appeal was dismissed but a further appeal to the High Court was allowed in June 2022. The High Court remitted the application to this Court for determination on the basis that s 59 of the Sentencing Act 2017 does not require the Court to exclude the effect of licence conditions when determining the risk presented by the applicant that he would fail, if given the opportunity, to exercise appropriate control of his sexual instincts. The Court received and considered updated psychiatric evidence.
Held, allowing the application:
1. The applicant is willing and capable of controlling his sexual instincts for the purpose of his release on licence subject to conditions.
2. The making of a final order is deferred until the Parole Board of South Australia has indicated the conditions it will impose.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24; Sentencing (Release on Licence) Amendment Act 2018 (SA); Sentencing Act 2017 (SA) s 59, referred to.
Hore v The Queen [2020] SASC 194; Hore v The Queen [2021] SASCA 29; Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153; R v Hore [2016] SASC 21; R v Whyte [2006] SASC 56; Wichen v The King [2022] SASC 158, considered.
HORE v THE KING
[2023] SASC 108Criminal: Application
HUGHES J:
Background
The applicant, Mr Hore, is a 45-year-old man who has been detained in custody since the sentence of imprisonment he was serving concluded on 10 August 2016. He has applied to be released on licence. This decision reflects the outcome of a remitted hearing following Mr Hore’s successful challenge to an earlier judgment that his application be refused.
Procedural history
On 19 February 2016, this Court found Mr Hore to be unwilling to control his sexual instincts and he was detained in custody until further order, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).[1]
[1] R v Hore [2016] SASC 21.
On 1 March 2018, he applied pursuant to s 24(1) of the Criminal Law (Sentencing) Act 1988 to be released from detention in custody on a date specified by the court, subject to such conditions as the Parole Board thinks fit.
The determination of his application was not completed before the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 (SA). It is not in dispute that the effect of the transitional provisions is that the application is to be determined in accordance with s 59 of the Sentencing Act 2017 (SA).
That section provides that this Court may, on application, authorise the release on licence of a person detained in custody under Division 5 of the Sentencing Act 2017. Relevantly, s 59(1a) provides:
(1a)A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that –
(a) the person is both capable of controlling and willing to control the person’s sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person’s advanced age or permanent infirmity.
Section 59(3) states that the paramount consideration for this Court in determining an application for release on licence is to protect the safety of the community.
On 12 October 2020, I refused the application.[2] The refusal entailed, as part of the reasoning, an approach taken as to the meaning of the words “willing to control” in s 59(1a). A similar approach to that phrase had recently been taken by the Court in Wichen v The Queen.[3] The Court in each case found that the statute required that the determination of whether a person was willing to control their instincts was to be undertaken without consideration of the likely effect of conditions on the release on licence upon the person's willingness to exercise appropriate self-control.
[2] Hore v The Queen [2020] SASC 194.
[3] [2020] SASC 157.
Both the applicant and Mr Wichen challenged the Court’s interpretation of s 59(1a) by way of appeal to the Court of Appeal. On 7 May 2021, the Court of Appeal dismissed both appeals.[4] However, on 15 June 2022, the High Court allowed appeals by each of Mr Wichen and the applicant. The High Court said:
In determining whether to order release of a person on licence under s 59(1a)(a), the Supreme Court is not obliged to reach the state of satisfaction required by the word "willing" in s 59(1a)(a) by excluding from consideration the likely effect of the conditions of the release on licence upon the person's willingness to exercise appropriate self‑control of his or her sexual instincts.[5]
[4] Hore v The Queen [2021] SASCA 29.
[5] Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153 at [67].
The High Court ordered that the applications be remitted to the respective primary judges to be determined according to law.[6] This decision reflects the outcome of the remitted process in respect of Mr Hore’s application for release on licence.
[6] Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153.
Primary judgment
In the decision of 12 October 2020, I set out the background of Mr Hore’s offending at [2] – [28]. I made various factual findings at [106] – [115] and, except to the extent that those findings are superseded by the findings set out in this judgment following the receipt of further evidence and the application of the law as directed by the High Court, those findings are unchallenged and form part of this decision.
The updated expert evidence
Pursuant to s 59(2) of the Sentencing Act 2017, the Court must obtain reports from at least two legally qualified medical practitioners which assess the mental condition of the person and whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
Dr Nambiar and Dr Furst, consultant forensic psychiatrists, provided supplementary reports to their earlier reports of 3 February 2020 and 24 December 2018 respectively.
Dr Nambiar
Dr Nambiar prepared an updated psychiatric report dated 24 October 2022 following a further appointment with Mr Hore.
The report identified that that the applicant has been receiving anti-libidinal injections every four weeks for some months. The medication is prescribed by Dr Owen Haeney, a visiting forensic psychiatrist, whom the applicant had seen on five occasions at the time of the report. Dr Nambiar observed that Dr Haeney noted that the applicant’s testosterone levels had been adequately suppressed to a level that would significantly reduce his libido.[7] The applicant told Dr Nambiar that he has not been thinking about sex or had the urge to masturbate due to this medication.[8]
[7] Report of Dr N P Nambiar dated 24 October 2022, p 2.
[8] Ibid, p 3.
Dr Nambiar wrote:
Mr Hore has demonstrated a willingness to have antilibidinal treatment which in turn has reduced his biological drive and reduced his arousal and need to focus on sex, in a controlled environment. It is unclear as to how this could be translated into the community if an opportunity arises.[9]
[9] Report of Dr N P Nambiar dated 24 October 2022, p 7.
Dr Nambiar described the applicant’s main risk factors for re-offending as being loneliness and boredom, a lack of insight into his offending, and inadequate supervision. In his view, the applicant had always demonstrated a fairly superficial or shallow understanding of the seriousness of his offending, and that this is potentially still the case. He expressed the view that the applicant continued to minimise his offending, particularly his most recent offending being the possession of child exploitation material and his moving in with a woman who had young children.[10] Dr Nambiar described it as “concerning” that the applicant continued to deny that he was the one who downloaded these images onto the computer.[11]
[10] Ibid, p 6.
[11] Ibid, p 4.
Dr Nambiar wrote:
There is an acknowledgement by him that he was involved in sex offending, still attributing this to his own sex abuse as a child and it is unclear as to whether he has made that cognitive shift from identifying as a victim to being a perpetrator.[12]
[12] Ibid, p 6.
The report concluded that that Mr Hore is capable of controlling his sexual instincts, but that as to willingness:
There still remains a risk of sexual offending if restrictions were not placed on him. In terms of the legal definition of unwilling, I still maintain that there is a significant risk that Mr Hore would, given the opportunity to commit a relevant offence, “fail to exercise appropriate control of his sexual instincts”.[13]
[13] Report of Dr N P Nambiar dated 24 October 2022, p 7.
He recommended that if the applicant were to be released on licence, the applicant should be restricted by licence conditions, adequately supervised and receive ongoing psychological intervention in the community, in order to mitigate risk and provide Mr Hore with the ability to demonstrate compliance with conditions.[14]
[14] Ibid.
Dr Furst
Dr Furst prepared an updated psychiatric report dated 8 December 2022. He observed that that there is no evidence that Mr Hore is incapable of controlling his sexual instincts.[15]
[15] Report of Dr P Furst Report dated 8 December 2022 at [8.2].
He reported, consistent with Dr Nambiar, that Mr Hore’s anti-libidinal medication commenced in July 2021, and the applicant told him that he has not had any “bad thoughts” or had the urge to masturbate since they settled on the appropriate dose of the medication.[16]
[16] Ibid at [4.1].
In contrast to Dr Nambiar, Dr Furst expressed the view that the applicant was no longer minimising his offending, and that he had “good insight into his mental state and offending behaviour”.[17]
[17] Report of Dr P Furst dated 8 December 2022 at [7.1].
In 2018 when Dr Furst first saw the applicant, he used the Static-99R risk assessment tool which he described as being a good test for identifying people who are at a low risk of sexual offending and those who are at a high risk of sexual offending. When administered to the applicant, the test yielded a score of 4-5 which is the moderate-high risk category. The applicant’s Static-99R score did not change on re-administration and the applicant remains in the high-risk band, consistent with his history and relatively young age.[18] Dr Furst observed:
His risk assessment has also not changed substantially because it is heavily weighted towards static factors. However, he has continued to make good progress with good engagement in what treatment was available to him (medical rather than psychological) and had good results from that treatment and this means that his risk has reduced further.[19]
[18] Ibid.
[19] Ibid at [8.2].
In Dr Furst’s interview with the applicant, the applicant was unsure exactly what conditions may be imposed but he viewed conditions in a positive light:
He said that he plans to be honest with himself and if he needs help then he would seek assistance from his professional supports, such as his Community Corrections Officer, psychologist, Owenia House staff, or the assigned SAPOL Offenders Support Program contact person. He reported that he had no problem with being subject to electronic monitoring and said that he considered it “another tool in my toolbox” and he saw reporting obligations under ANCOR in a similar light.[20]
[20] Report of Dr P Furst dated 8 December 2022 at [5.3].
In assessing risk, Dr Furst distinguished between the risk of Mr Hore’s non-compliance from his risk of sexual re-offending:
I remain of the view that if released without any conditions at all, there would be a moderate to high risk that Mr Hore could re-offend in some way, most likely by failure to strictly abide by his reporting conditions. It is less likely that he would sexually reoffend.[21]
[21] Ibid at [8.2].
Dr Furst concluded that if released on conditions, there is a relatively low risk that the applicant would reoffend:
If released under Licence with a fairly typical array of conditions, such as supervision by a Community Corrections Officer, prohibition from contact with children or use of the internet, possibly electronic monitoring and follow-up with Owenia House and/or a recommended therapist in the community, then I believe there is a relatively low risk that he would reoffend in the first year or two post-release.[22]
[22] Ibid.
The conditions
After the provision of these reports but prior to the hearing, the Director and the applicant’s counsel conferred over a set of possible conditions of release on licence and provided these to the psychiatrists. The proposed conditions are appended in full to this decision.[23] Key components of the proposed conditions are:
·Home detention with electronic monitoring.
·A requirement to take recommended medication including anti-libidinal medication.
·A prohibition on the possession of or use of any internet-capable device except under supervision.
·No association with persons under the age of 16.
[23] Appendix A.
The oral evidence of the psychiatrists
The psychiatrists then gave evidence concurrently in a hearing on 31 May 2023.
Key to the Court’s consideration of the issue to be decided was the psychiatrists’ evidence as to the risk presented by Mr Hore if he were to be released subject to a set of conditions containing terms identical or largely similar to those that were presented to them prior to giving oral evidence.
Ms Shaw, on behalf of Mr Hore, asked each of the psychiatrists of their assessment of the risk presented by Mr Hore if he were released without conditions. Dr Nambiar said:
I can’t really gaze into a crystal ball about whether he would commit an offence but certainly if there were no restrictions on him, given his history and despite some of the treatment that has occurred, he would be pretty much left to his own devices. So there is a – there is still a risk that potentially if a situation arose, that he may reoffend.[24]
[24] Transcript of hearing on 31 May 2023, p 98.
Asked the same question, Dr Furst said:
Yes, I think the thing about conditions, if he doesn’t have the conditions, it increases the risk that he then might fall into other risk – you know, he becomes lonely, he becomes disengaged, these sorts of things. So if he doesn’t have those conditions, then yes, his risk of reoffending remains at that sort of moderate, moderate level. Whereas if you put the conditions on top you’re going from the sort of a moderate or average level of reoffending risk, to sort of below average, so…. So I think with the conditions he’s at the low-average risk of reoffending.[25]
[25] Ibid, p 99.
Asked about the risk by Mr Hore if conditions were in place, Dr Nambiar said:
Yes, I agree, that with all of the conditions in place, that then will significantly reduce the risk down to a low level.[26]
[26] Ibid.
Both thought that the risk that Mr Hore would breach one or more of his conditions was “low”.
It was also observed by Dr Furst that Mr Hore had not sexually assaulted unknown victims but had built relationships with them, usually through an adult friend, over a period of time.[27] This is significant to the issue of risk control because it indicates that supervision provides an opportunity to arrest behaviour before it reaches the point of offending.
[27] Transcript of hearing on 31 May 2023, p 101.
Evidence from the Department for Correctional Services
The Court ordered a pre-sentence report requiring the Department for Correctional Services to answer questions agreed by counsel. A report was prepared by Kerry Lomas of the Department on 9 May 2023. At a hearing on 30 May 2023, Ms Agnew on behalf of the Director for Public Prosecutions called the Executive Director for Community Corrections and Specialist Prisons at the Department for Correctional Services, Mr Ryan Harber, to give oral evidence in relation to the report and the plan for Mr Hore’s possible release.
The report states that Mr Hore is ineligible for placement at the Adelaide Pre-Release Centre as he is a sex offender.[28] The report comments on Mr Hore’s NDIS entitlements:[29]
It is the view of the department that the applicant’s NDIS plan is inadequate for his disability needs. An internal NDIA review was completed in February 2023 upholding the original decision. The next step would be a change in circumstances to enable a community plan to be built. This would include new clinical evidence (functional capacity assessment) demonstrating a change in his disability related support needs and/or confirmation on the likelihood of a release date. An Occupational Therapy assessment has been scheduled at Mount Gambier Prison on 16 May 2023 for that functional capacity assessment and evidence.
It is assessed that the current level of funding for the applicant is not going to support his needs in the community. The psychological report prepared by Senior Clinical Psychologist, Alyce Bolton, dated 21 December 2022 evidenced significant cognitive deficits alongside impaired adaptive functional capacity. His deficits were considered to be lifelong and not amenable to any treatment that would improve his capacity.
If the applicant is released on licence, adequate support in the community is essential in meeting his disability needs and reducing his very high risk. With extra NDIS funding, his disability care provider could in-reach into the prison for pre-release planning and preparation.
[28] Pre-sentence report by Kerry Lomas dated 9 May 2023, p 2.
[29] Ibid, p 3.
Mr Harber gave evidence that Mr Hore has been approved for 40 hours of daily care activities over a two year period, it would be about 20 minutes of support per week. Mr Harber said that this may look like a phone call or drop in from a service provider.[30] The Department considers this to be inadequate and has arranged an occupational therapy assessment with a view to securing additional funding.
[30] Transcript of hearing on 30 May 2023, p 8.
On support post-release, he explained that the non-government organisation SYC was identified as providing the broadest support:[31]
Allan Bridges, Resettlement and Reintegration Manager, Mount Gambier Prison, reported that the applicant has been referred to SYC which is a not-for-profit organisation who help people to obtain housing, education and employment and have been identified by the prison as being a key partner in reducing recidivism. Mr Bridges advised that the SYC representative at Mount Gambier Prison is Justin McConnell and that, prior to release, the applicant will engage with Mr McConnell on a one-to-one basis and put an individualised plan together on what the applicant’s release needs are. SYC can assist the applicant to find accommodation, help him gain employment through their job network, arrange for him to attend and convey him to any medical appointments, assist him to open a bank account, assist him to obtain food and white goods for the property he resides in, assist him to attend varied appointments (including those at Centrelink and SA Housing Authority) and support him with any other needs, which could also include specialist counselling. This support is usually provided for twelve weeks post-release, however, this can be extended to six months if required.
[31] Pre-sentence report by Kerry Lomas dated 9 May 2023, p 4.
Mr Harber stated that the community corrections officer to whom Mr Hore would be assigned if released would have two face-to-face contacts with Mr Hore per week, supplemented with phone calls as necessary.[32] He explained that, if released, Mr Hore would also be subject to a comprehensive plan developed by a multi-disciplinary case management group as a person who had been released from indeterminate detention and was therefore not subject to parole conditions.[33]
[32] Transcript of hearing 30 May 2023, p 21.
[33] Ibid, p 20-21.
Personal circumstances
The applicant’s personal circumstances are not in dispute.
Mr Hore is 44 years old. He is close to his mother who lives in the Barossa Valley. His father passed away while he has been in custody. Earlier in life, he worked in the tow-truck industry. He has an interest in motor-sports and speedway in particular. He described himself as always having difficulty with relationships with adults. He identifies as bi-sexual.
He has limited social supports. His main, if not only, supports outside of custody are his mother and his friend, Tim.[34] Dr Furst describes the applicant’s friend Tim as being the applicant’s most important social contact in the community:
He described Tim as like “a brother from another mother” and someone who knew his history but had clear boundaries and expectations. For example, Mr Hore said that Tim had told him that if Tim had grandchildren visiting, then Mr Hore would have to leave, and he agreed with this.[35]
[34] Report of Dr N P Nambiar dated 24 October 2022, p 5.
[35] Report of Dr P Furst dated 8 December 2022 at [4.5].
Mr Hore’s mother, Ms Taylor, wrote a letter to Mr Hore’s lawyer.[36] It provides an undertaking to support Mr Hore if he is released, and asks that if it is possible to arrange accommodation in the Gawler region, that will ensure that Mr Hore is close to her and to his friend, Tim. Ms Taylor says that she will be available to provide transport for Mr Hore and to visit him and to assist him to “adapt to society again” after his period of imprisonment.
[36] Exhibit A6.
The applicant told Dr Furst that he is also supported by his brother with whom he has begun to reconnect after having been distant for a period.[37]
[37] Report of Dr P Furst dated 8 December 2022 at [4.4].
A further relevant personal factor is his cognitive disability, which is addressed in the pre-sentence report. The report refers to a psychological report of Alyce Bolton dated 21 December 2022 that finds “significant cognitive deficits alongside impaired adaptive functional capacity”. The deficits were considered to be lifelong and not amenable to treatment.[38]
[38] Pre-sentence report by Kerry Lomas dated 9 May 2023, p 3.
The most relevant personal circumstance, however, is the applicant’s current treatment with anti-libidinal medication. The pre-sentence report states that Mr Hore has been referred to the Forensic Community Mental Health Service for oversight of his anti-libidinal treatment and Mr Harbor anticipated that the community corrections officer would liaise with that service for psychological services to be provided to Mr Hore as well.[39]
[39] Transcript of hearing on 30 May 2023, p 24.
Offending history
Mr Hore’s offending history was described in detail in the primary judgment. He committed indecent assault on a 10-year-old male child when he was 25 in 2003. He was convicted following a trial in 2007. He was imprisoned for two years with a non-parole period of 15 months. The sentence of imprisonment was suspended and he underwent a sexual conduct course at Owenia House.
Before the 2003 offending came on for trial, Mr Hore offended against a 13-year-old male child. He was tried for this offending in 2010. Following conviction, he unsuccessfully appealed to the Court of Criminal Appeal. He was sentenced to two years and six months imprisonment with a non-parole period of one year and six months.
Following his release in 2013, he contravened his ANCOR obligations by moving in with a woman who had young children. Whilst there, he was in possession of a computer that was found by police to have nearly 500 items of child exploitation material on it. He was convicted and, after a successful Crown appeal against sentence, he was sentenced to 16 months’ imprisonment with a non-parole period of 10 months commencing on 10 April 2015. It was toward the end of that sentence that the Attorney-General applied to the Court and obtained an order that Mr Hore be detained until further order on the grounds of his incapacity or unwillingness to control his sexual instincts.
Mr Hore’s contentions
Mr Hore did not give further evidence on the remitted application. In the original hearing, he gave evidence of the changes in his thinking since being incarcerated. He had sessions with a psychologist, Ms Bruggemann, and started keeping a journal. He developed a strategy of monitoring, challenging and modifying his thoughts.[40] He admitted in cross-examination that he was still sexually attracted to boys in the seven- to thirteen-year-old age range. That evidence must now be understood to be modified by his statements to both Dr Furst and Dr Nambiar that the effect of the anti-libidinal medication has been to thwart sexual thoughts. In his 2019 evidence he acknowledged that he was untested in the community and that he would have to manage situations that he might encounter involving children.
[40] Transcript of hearing on 1 June 2019, p 27.
Consideration
The question for the Court is whether to grant Mr Hore release on licence as a person who is both capable and willing to control his sexual instincts.
There is consensus in the experts that there is no evidence that Mr Hore is incapable of controlling his sexual instincts.
Notwithstanding the commencement of anti-libidinal medication, there is no evidence that Mr Hore’s age or permanent infirmity are such that he no longer presents an appreciable risk to the safety of the community.
The only question is whether the applicant is willing to control his sexual instincts.
The Court may be satisfied that Mr Hore is “willing” to control his sexual instincts where there is not a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.[41] The Court is not obliged to reach a state of satisfaction about that proposition by excluding from consideration the likely effect of conditions of licence upon Mr Hore’s willingness to exercise appropriate self-control.[42]
[41] Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153 at [51].
[42] Ibid at [60].
As to willingness, the oral evidence from Drs Nambiar and Furst on the remitted hearing was clear. With the imposition of a suite of suitable conditions, the risk that Mr Hore would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts, is low.
The question for decision is not wholly answered by the expert evidence however. The Court must reach its own state of satisfaction and make an evaluative judgment.[43] The paramount consideration for the Court in determining an application for release on licence is the safety of the community: s 59(3).
[43] Wichen v The King [2022] SASC 158 at [71].
In R v Whyte,[44] White J said:
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is "significant". In context, the word "significant" has the meaning of "substantial". Put more colloquially, the Court must be satisfied that there is a "good chance" that the risk will eventuate. The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control. (Footnotes omitted)
[44] [2006] SASC 56 at [30].
Having regard to the whole of the evidence, I am satisfied that Mr Hore is willing to control his sexual instincts for the purpose of his release on licence subject to conditions. Critical to this conclusion is the evidence of the effect of the anti-libidinal medication upon him and the ability to condition his release upon continued administration of that medication, and the further constraints on his ability to re-offend that will be achieved by the imposition of the proposed conditions.
Parole Board
On 4 October 2022, the Parole Board provided its updated views on the application. The Parole Board outlined his offending, custodial and treatment history. The Parole Board said:
Dr Nambiar reported to the Parole Board that Mr Hore was capable of, but unwilling to exercise appropriate control over his sexual impulses. Dr Furst reported to the Court that his risk of re-offending might depend on his level of support in the community, and whether he had unfettered access to minors and to the internet. He considered that if Mr Hore were given the opportunity to offend, he was ‘very risky’.
As at June 2021 Mr Hore remained on the waiting list for the low-functioning Sexual Behaviour Clinic Program. As at that time, it was not planned to offer further treatment by the Rehabilitation Programs Branch.
Mr Hore has advised the Parole Board, through the social worker at Mt Gambier Prison, that he is seeking to appeal to the high (sic) Court of Australia in 2022 against the refusal to release him on licence.
Mr Hore is currently placed in Mount Gambier Prison in cottage accommodation. In the last 12 months he has had contact with the social worker and he is assigned a case manager.
After his appeal was dismissed by the Supreme Court of South Australia on 7 May 2021, he contacted a psychologist several times and there was a consultation with psychiatrist Dr Haeney.
He has not had any further intervention. The Parole Board is of the view that at the present time he is not currently suitable for release on licence, however that is a matter for the Court, having regard to any more recent psychiatric review.
It may be observed that although it is dated October 2022, the information upon which the Parole Board relied was quite out of date. In fact, when it was written, Mr Hore had already successfully appealed to the High Court, and had commenced the anti-libidinal medication some months before seeing Dr Nambiar in September 2022. However, there is no reference to the anti-libidinal medication in the Parole Board’s report.
Having regard to the views of the psychiatric experts, the Parole Board, the Department for Correctional Services and Mr Hore himself, I determine that Mr Hore should be released on licence subject to conditions. I will defer the making of a final order pending the outcomes of two matters relevant to the setting of a date for release.
I will refer the proposed conditions for the Parole Board’s consideration by reference to the updated psychiatric reports.
I request the Director to inform the Department that it should endeavour to source accommodation for Mr Hore as soon as practicable but note that this may take 8-12 weeks.
I will hear the parties as to the appropriate date for Mr Hore’s release on licence.
Appendix A
Proposed Conditions
1.That you be under the supervision of a Community Corrections Officer appointed by the Parole Board of South Australia and that you obey the directions of the appointed officer (in this order referred to as your “Community Corrections Officer”).
2.That you carry out faithfully all instructions and requirements of the Community Corrections Officer and/or Home Detention Officer under whose supervision you have, from time to time, been placed.
3.That you attend for interviews as and when required by your Community Corrections Officer.
4.That you follow your Community Correction Officer’s direction in relation to the people with whom you associate.
5.That you follow all reasonable directions of your Community Correction Officer in respect to employment and accommodation.
6.That you do not depart or attempt to depart from the State of South Australia without the prior (written) permission of the Parole Board.
7.That you reside at a specified address, and that not change your place of residence without the prior written permission of your Community Corrections Officer.
8.That you wear a GPS tracking device.
9.That you report in person to, and meet with, your Community Corrections Officer under whose supervision you have from time to time been placed, when directed.
10.That you will wear an electronic monitoring device and be subject to an intensive supervision regime of Home Detention, and that you comply with the rules of DCS in respect of intensive electronic monitoring and will not leave your residence at any time, except for the purpose of approved remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to yourself or to any other person, or for any purpose as directed by and with the approval of your Community Corrections Officer.
11.That you not possess a mobile phone that is enabled to access the internet.
12.That you must not use, possess, or consume any drug, including any narcotic or psychotropic drug, that is not prescribed by a medical doctor registered in Australia or legally available in another way, and then only at the prescribed or recommended dosage.
13.That you advise your Community Corrections Officer of any drug that has been prescribed to you by a legally qualified Medical Practitioner within 7 days of that prescription.
14.That you do not enter upon or remain upon any licensed premises, without the prior approval of your Community Corrections Officer.
15.That you comply with the planned schedule of weekly activities and appointments provided to you by your Community Corrections Officer and/or Home Detention Officer and comply with your approved leave passes.
16.That you undertake 1:1 counselling or other intervention as directed by your Community Corrections Officer to address your sexual offending.
17.That you undertake and complete a psychiatric assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
18.That you take such medication, including anti-libidinal medication, as your treating psychiatrist shall prescribe.
19.That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
20.That you present yourself for urine testing as and where directed by your Community Corrections Officer and monthly blood testing to ascertain if medication is at therapeutic levels and that you do all things and sign all such forms as may be necessary to enable this, the said urine or blood to be analysed and the results of such analysis provided to your Community Corrections Officer and/or the Parole Board.
21.That you submit to any breath testing analysis as directed by your Community Corrections Officer.
22.That you shall not possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article unless you have first obtained the written permission of the Parole Board to do so and comply with the terms and conditions of that permission.
23.That you be of good behaviour, keep peace towards persons, and do not commit any breaches of the law.
24.That you must allow your Community Corrections Officer or the police to access any premises at which you are residing at any time, for the purpose of checking whether there is any evidence that you may be breaching any of the conditions imposed.
25.That you not loiter without reasonable excuse at or in the vicinity of a school, public toilet, playground or place at which children are regularly present at the school, toilet, playground or place.
26.That you not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, education or other facilities for children, unless with written permission of your Community Corrections Officer.
27.That you take any steps necessary to comply with the requirements of the Australian National Child Offender Register (ANCOR).
28.That you do not contact, attempt to contact or associate in any way, whether directly or indirectly, with any person under the age of sixteen (16) years unless your Community Corrections Officer is present, or a person nominated by your Community Corrections Officer is present.
29.That you not use or be linked to any computer network or any equipment with access to the internet or social media and that you not enter that part of any premises in which an internet facility is provided for use by the public, except when utilizing the internet under the supervision of your Community Corrections Officer or a person approved in writing by your Community Corrections Officer.
30.That you not possess or use any video or still camera or other recording device including a camera equipped mobile phone.
31.That you not access child pornography either by the internet or any other media.
32.That you not possess or disseminate any child pornography.
33.That you maintain a diary of your daily activities and provide it to your Community Corrections Officer or the Parole Board when directed to do so.
34.That you not contact, attempt to contact or associate in any way, whether directly or indirectly with the victims of your offences.
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