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 That Act was repealed and the application fell to be determined under s 59 of the Sentencing Act 2017 (SA).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 108
Criminal: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hore v The King

Details

AGLC: Hore v The King [2023] SASC 108
Case: [2023] SASC 108
Decision Date

CaseChat Overview and Summary

The case of Hore v The King involved the defendant, Mr Hore, who applied for release on licence under the Sentencing Act 1997 (SA). The primary legal issue was whether Mr Hore was both capable and willing to control his sexual instincts, considering his history of sexual offending against children and the potential risks he posed to the community. The court also had to consider the adequacy of his National Disability Insurance Scheme (NDIS) plan and the conditions that could be imposed to ensure his safe release.

The court evaluated the expert evidence provided by Drs Furst and Nambiar, who testified that Mr Hore was capable of controlling his sexual instincts with the right conditions. The court noted that while there was no significant evidence to suggest Mr Hore was incapable of controlling his sexual desires, there remained a substantial risk that he could fail to exercise appropriate control if not properly monitored. The court had to determine whether the risk was significant enough to conclude that Mr Hore was unwilling to control his instincts. The court's decision hinged on whether the conditions of licence, along with the anti-libidinal medication, could sufficiently reduce the risk to the community.

Ultimately, the court found that with a comprehensive set of licence conditions, the risk of Mr Hore failing to control his sexual instincts was low. The court was satisfied that Mr Hore was willing to control his sexual instincts under these conditions, taking into account the expert evidence and the potential impact of the NDIS funding and support. The court's paramount consideration was the safety of the community, and it concluded that Mr Hore's release on licence, subject to certain conditions, would not pose an unacceptable risk.

The court ordered that Mr Hore be released on licence, subject to specific conditions aimed at controlling his sexual instincts and ensuring community safety. These conditions included continued monitoring, regular psychological assessments, and adherence to the terms of his NDIS plan, which was to be reviewed to ensure it met his disability needs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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].