HIGH COURT OF AUSTRALIA
KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
Matter No A5/2022
DARRYL MARTIN HORE APPELLANT
AND
THE QUEEN RESPONDENT
Matter No A6/2022
JACOB ARTHUR WICHEN APPELLANT
AND
THE QUEEN RESPONDENT
Hore v The Queen
Wichen v The Queen[2022] HCA 22
Date of Hearing: 11 May 2022
Date of Judgment: 15 June 2022A5/2022 & A6/2022
ORDER
In each matter:
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of South Australia made on 7 May 2021 and, in its place, order that:
(a)the appeal to that Court be allowed;
(b)the decision of the primary judge be set aside; and
(c)the appellant's application for release on licence be remitted to the primary judge to be determined according to law.
On appeal from the Supreme Court of South Australia
Representation
S A McDonald SC with G P G Mead SC for the appellant in each matter (instructed by Legal Services Commission (SA))
M J Wait SC, Solicitor-General for the State of South Australia, with L M Boord SC for the respondent in each matter (instructed by Office of the Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hore v The Queen
Wichen v The QueenCriminal law – Sentencing – Indefinite detention – Release on licence – Where s 57 of Sentencing Act 2017 (SA) ("Act") conferred upon Supreme Court of South Australia discretion to order that persons convicted of certain sexual offences be detained in custody until further order – Where s 59(1a)(a) of Act provided that person detained in custody could not be released on licence unless person satisfied Supreme Court that person capable of controlling and willing to control sexual instincts – Where "willing" not defined in Act – Where s 57(1) of Act provided that, in that section, person regarded as "unwilling" to control sexual instincts if a significant risk that person would, given opportunity to commit relevant offence, fail to exercise appropriate control of person's sexual instincts – Whether "willing" in s 59(1a)(a) meant converse of "unwilling" in s 57(1) of Act – Whether Supreme Court obliged to reach state of satisfaction required by s 59(1a)(a) by excluding from consideration likely effect of conditions of release on licence upon person's willingness to exercise appropriate control of sexual instincts.
Words and phrases – "capable", "conditions of release on licence", "exercise appropriate control of the person's sexual instincts", "ongoing capability and willingness", "release on licence", "reliable commitment to control", "significant risk", "state of mind", "unwilling", "willing".
Sentencing Act 2017 (SA), ss 57, 58, 59.
KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ. Under Div 5 of Pt 3 of the Sentencing Act 2017 (SA) ("the Act"), the Supreme Court of South Australia may order that a person who has been convicted of certain sexual offences be detained in custody until further order. Within that Division, s 59(1) provides…
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- AGLC
- Hore v The Queen [2022] HCA 22
- Case
- [2022] HCA 22
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court were whether the term "willing" in section 59(1A)(a) of the Act should be interpreted as the converse of "unwilling" as defined in section 57(1), and whether the Supreme Court, when assessing willingness, was obliged to exclude from consideration the likely effect of the conditions of release on licence upon the appellant's willingness to exercise appropriate control of their sexual instincts. Section 57(1) defines a person as "unwilling" if there is a significant risk that they would, if given the opportunity, fail to exercise appropriate control of their sexual instincts.
The High Court reasoned that the term "willing" in section 59(1A)(a) should indeed be understood as the opposite of "unwilling" as defined in section 57(1). Consequently, the Court held that a person is "willing" if there is no significant risk that they would fail to exercise appropriate control of their sexual instincts if given the opportunity. Furthermore, the Court determined that when assessing a person's willingness to control their sexual instincts, the Supreme Court must consider the likely effect of the conditions of release on licence. The Court found that the lower courts had erred in their approach to these matters.
In each appeal, the High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of South Australia, and remitted the appellants' applications for release on licence to the primary judge for determination according to law.
Orders
Orders of the court
In each matter:
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of South Australia made on 7 May 2021 and, in its place, order that:
(a) the appeal to that Court be allowed;
(b) the decision of the primary judge be set aside; and
(c) the appellant's application for release on licence be remitted to the primary judge to be determined according to law.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
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