Hore v The Queen - [2021] SASCA 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HORE v THE QUEEN
[2021] SASCA 29
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
7 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against a refusal of an application for release from custody on licence, pursuant to s 59 of the Sentencing Act 2017 (SA).
On 19 February 2018, this Court found the appellant to be incapable of controlling his sexual instincts. It directed that the appellant be detained in custody until further order, pursuant to s 23 of the now-repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Act).
On 1 March 2018, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act. That Act was replaced by the Sentencing Act 2017 (SA) (Sentencing Act) in April 2018. By operation of the transitional provisions in Sch 1 of the Sentencing Act, the application was required to be determined pursuant to s 59 of that Act.
On 12 October 2020, Hughes J refused the application, as she was not satisfied that the appellant was willing to control his sexual instincts within the meaning of s 59(1a) of the Sentencing Act.
The appellant challenges Hughes J’s finding that the word ‘willing’ in s 59(1a) has a meaning that is the converse of the defined term ‘unwilling’ in s 57, and her finding that the applicant was obliged to establish that he is both capable of and willing to control his sexual instincts without regard to the effect on such capability and willingness that the imposition of conditions on a release on licence pursuant to s 59 of the Act would have.
Held, dismissing the appeal:
1. The word ‘willing’ in s 59(1a)(a) has a meaning that is the opposite to the defined term ‘unwilling’ in s 57(1).
2. Section 59(1a)(a) makes it clear that a person detained cannot be released on licence unless they satisfy the Court of the matters specified therein. The power to release on licence is enlivened only on satisfaction of those matters. The question of the conditions to be imposed on release only arises once the Court is so satisfied.
Sentencing Act 2017 (SA) ss 57, 58, 59, Sch 1; Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24(1); Criminal Law Consolidation Act 1935 (SA) s 63A; Child Sex Offenders Registration Act 2006 (SA) s 44, referred to.
Hore v The Queen [2020] SASC 194, discussed.
Wichen v The Queen [2021] SASCA 30; R v Hore [2011] SASCFC 60; Police v Hore [2015] SASC 150; R v Hore [2016] SASC 21; Wichen v The Queen [2020] SASC 157, considered.

HORE v THE QUEEN
[2021] SASCA 29

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

THE COURT: This appeal was heard on the same day as the appeal in Wichen v The Queen (Wichen),[1] which raised identical issues. The same counsel argued both appeals. Both counsel adopted the oral submissions they had made in Wichen, save for some brief submissions to address slight differences in the expressions of reasoning on the second issue between Hughes J at first instance in this case and the Chief Justice at first instance in Wichen. Our judgment on this appeal consequently adopts the reasoning and conclusions we have reached in Wichen.
[1] Wichen v The Queen [2021] SASCA 30.
We can articulate the issues raised by repeating our expression of the issues arising in Wichen. Division 5 of Part 3 of the Sentencing Act 2017 (SA) (‘SentencingAct’), which encompasses ss 56 to 67 of that Act, is expressed to apply in respect of offenders incapable of controlling, or unwilling to control, their sexual instincts. This appeal, being against a refusal of an application for release from custody on licence pursuant to s 59, raises two issues of construction of that section.
Pursuant to s 57(7) of the Sentencing Act, the Supreme Court may order that a person to whom the section applies be detained in custody until further order if satisfied that the order is appropriate. One consideration relevant to making such an order is whether the person is incapable of controlling, or unwilling to control, their sexual instincts. Where a person is so detained, s 59 permits the Court to authorise release of the person on licence. To this end, s 59(1a) imposes a threshold test: the person must satisfy the Court that they are both capable of controlling and willing to control their sexual instincts. The first issue arising on the appeal is whether the word ‘willing’ in this section has a meaning that is the converse of the defined term ‘unwilling’ in s57.
The second issue is whether s 59 permits what may be described as a ‘stepped down’ approach to release on licence. This contemplates that if a person is unable to satisfy the Court that they are both capable of and willing to control their sexual instincts, the Court then turns to s 59 to ascertain whether, if released on licence under conditions mandated by s 59(7) and permitted by s 59(8), they would in that circumstance be capable and willing in the statutory sense.
Background
The appellant committed various offences between 2003 and 2013. In 2007, he was convicted following a trial of one count of indecent assault. That offending had occurred in December 2003, when the appellant indecently touched a 10-year old boy around his genital region, outside of his clothes. He was sentenced to two years’ imprisonment with a non-parole period of 15 months. The sentence was suspended.
In 2010, the appellant was convicted following a trial of one count of aggravated indecent assault. That offending had occurred between July and November 2007, when the appellant masturbated a 13-year-old boy. He was sentenced to two years and six months’ imprisonment with a non-parole period of one year and six months. He appealed against the conviction on grounds related to the sufficiency of evidence. His appeal was dismissed.[2]
[2] R v Hore [2011] SASCFC 60.
In February 2015, the appellant pleaded guilty to three counts of failing, as a registered sex offender, to comply with reporting conditions contrary to s 44(1) of the Child Sex Offenders Registration Act 2006 (SA) and one count of knowingly possessing child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA). He was sentenced (following a successful Crown appeal against a partially suspended sentence) to 16 months’ imprisonment with a non-parole period of ten months.[3]
[3] Police v Hore [2015] SASC 150.
On 19 February 2016, following an application by the Crown, this Court found the appellant to be incapable of controlling his sexual instincts. It directed that he be detained in custody until further order, pursuant to s 23 of the now‑repealed Criminal Law (Sentencing) Act1988 (SA) (‘the repealed Act’).[4]
[4] R v Hore [2016] SASC 21.
On 1 March 2018, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act. That Act was then repealed and replaced by the Sentencing Act in April 2018. By operation of the transitional provisions in Sch 1 of the Sentencing Act, the application was required to be determined pursuant to s 59 of that Act.
On 12 October 2020, Hughes J refused the application, as she was not satisfied that the appellant was willing to control his sexual instincts within the meaning of s 59(1a) of the Sentencing Act.[5] In reaching that conclusion, she expressed her view that s 59(1a) created a threshold test that preceded any consideration of the balance of s 59:[6]
The imposition of conditions is only considered after the applicant establishes that he is willing and capable of controlling his sexual instincts. The effect of this construction is to place a significant – and in some cases it will be an impossible – burden on an offender. It also relieves the State of the burden of monitoring compliance with conditions that may be agreed to achieve a significant reduction in risk. The task facing an applicant for release on discharge is to establish that they have, whilst detained, sufficiently reduced the risk that they pose notwithstanding the limited scope for effecting such change that the prison environment offers.
…
Notwithstanding the effect that the interpretation gives rise to, I am satisfied that it reflects the legislature’s intent. It is sufficiently clear by the language and form of s 59 that the first step in the applicant’s case is that he must establish that he is both capable of and willing to control his sexual instincts when an opportunity to fail to do so arises. The Court cannot release the person without that having been established. However, it does not follow from such a conclusion that the risk is wholly removed, and the balance of section 59 is directed at other factors to be incorporated into the decision as to what is an appropriate order to make.
[5] Hore v The Queen [2020] SASC 194 at [116]-[118].
[6] Hore v The Queen [2020] SASC 194 at [99]-[101]
The appeal
The two issues arising are expressed in the grounds of appeal:
1.The learned Judge erred in concluding ([2020]SASC 194 at [91]) that the meaning of the word “willing” in s59(1a) of the Sentencing Act 2017 (SA) (“the Act”) is the converse of the definition of the word “unwilling” of s57 of the Act.
2.The learned Judge erred in concluding that the applicant was obliged to establish that he is both capable of and willing to control his sexual instincts without regard to the effect on such capability and willingness of the imposition of conditions on a release on licence pursuant to s59 of the Act.
The Sentencing Act
We repeat here the essence of what we have said in Wichen about the relevant provisions of the Sentencing Act. Section 57(7) of that Act permits the Supreme Court to order that ‘a person to whom this section applies be detained in custody until further order, if satisfied that the order is appropriate’. Section 57(1) contains various definitions which, on their face, are given for the purpose of s 57. Thus a ‘person to whom this section applies’ is defined in the following way:
(1) In this section—
…
person to whom this section applies means—
(a) a person convicted by the Supreme Court of a relevant offence; or
(b)a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)a person who is the subject of an application by the Attorney‑General under subsection (3);
That definition exists for the purpose of delineating the class of persons susceptible to an order under s 57(7). Section 57(6) places a directive upon the Court as to a step it must take before determining whether to make an order under s 57(7):
(6)The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(Emphasis added)
‘Unwilling’ is defined in the section in terms that differ from the ordinary meaning of the word, that is, not being disposed, ready, prepared or eager to do something. The statutory definition appears as follows:
(1) In this section—
…
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
Not only does this definition depart from the ordinary meaning, but there is a further curiosity about it. The balance of the definitions in s 57(1) are expressed in the same form as is the definition of ‘a person to whom this section applies’, that is, in the form:
(1) In this section—
…
person to whom this section applies means—
[…]
By contrast, the definition of ‘unwilling’ does not use the form ‘In this section… means...’. The definition of the word is still prefaced with the words, ‘In this section…’, so there nevertheless remains a textual confinement of the definition to the section.
Section 58 then provides for the discharging of an order for detention. As is logical, s 58(1) makes that provision in respect of ‘a person subject to an order for detention under section 57’. At the risk of dwelling on the obvious, such a person was, at the time that order was made, a person to whom s 57 applied and was made the subject of at least two reports on whether they were incapable of controlling, or unwilling to control, their sexual instincts.
Section 58(1a) then imposes a threshold test before an order under s 57 can be discharged:
(1a)An order for detention under section 57 cannot be discharged unless the person subject to the order 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.
To this end, s 58(2) then places a directive on the Supreme Court that is, in terms, of the same effect as the directive in s 57(6):
(2)The Supreme Court must, before determining an application under this section for the discharge of an order for detention under section 57, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person subject to the order and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
Section 59 provides for a regime of release on licence of a person detained in custody ‘under this Division’. While it uses different language from that in s 58(1), it can still only be referring to a person detained in custody under s 57. Again, any such person was, at the time, made the subject of at least two reports on whether they were incapable of controlling, or unwilling to control, their sexual instincts.
Section 59 then imposes the same preconditions to release on licence as exist for a discharge under s 58:
(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.
(2)The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
Interpretation of the word ‘willing’ in s 59
Justice Hughes concluded that due to the appellant’s continuing urges in relation to children, the fact that he was partly but not wholly open, and the limited internal and external supports he had to assist him, she was not satisfied that the appellant was ‘willing’, within the statutory meaning of that term, to control his sexual instincts.[7] In doing so, she rejected a submission that the word ‘willing’ should be read according to its natural meaning, being an expression of openness to do something, an inclination toward it or an intention to act in a particular way, rather than as the converse of the term ‘unwilling’, as defined in s 57.[8]
[7] Hore v The Queen [2020] SASC 194 at [117].
[8] Hore v The Queen [2020] SASC 194 at [85] and [91].
Her Honour noted that this construction was consistent with that adopted by Kourakis CJ (sitting at first instance) in Wichen v The Queen.[9]
[9] Wichen v The Queen [2020] SASC 157 at [110].
For the reasons that we have given on the appeal in Wichen, we hold that the word ‘willing’ in s 59(1a)(a) has a meaning that is the converse of the defined term ‘unwilling’ in s 57(1).
Ground 2: Licence conditions should be taken into account
Ground 2 challenges Hughes J’s conclusion that s 59(1a) creates a threshold test that precedes consideration of the balance of s 59. The appellant’s argument is to the effect that as ss 58 and 59 are expressed to operate under the same threshold tests, the scheme is such that a person looks to satisfy the Court that they are both capable of and willing to control their sexual instincts. If they are unable to do so, the Court then turns to s 59 to ascertain whether, if released on licence under conditions mandated by s 59(7) and permitted by s 59(8), they would in that circumstance be capable and willing in the statutory sense. That is to say, in the context of the section, releasing on licence provides a different framework within which to consider the threshold questions.
For the reasons that we have given on the appeal in Wichen in relation to the second issue arising in that case, we do not accept this argument. As we said in Wichen, s 59(1a)(a) makes it clear that a person detained cannot be released on licence unless they satisfy the Court of the matters specified therein. The power to release on licence is enlivened only on satisfaction of those matters (or of the infirmity criterion under s 59(1a)(b)). It is only once the Court is so satisfied that the question of conditions arises. That approach does not fail to have regard to the broader context of the scheme. Rather, it gives effect to a clear delineation of matters to be considered at different stages of the operation of the scheme.
Conclusion
For these reasons, we dismiss the appeal.