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 It directed that the appellant be detained in custody until further order, pursuant to s 23 of the now-repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Act).
On 1 March 2018, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act.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

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 Queen

Details

AGLC: Hore v The Queen [2021] SASCA 29
Case: [2021] SASCA 29
Decision Date: 7 May 2021

CaseChat Overview and Summary

The appeal concerned an application for release on licence by the appellant, who had been found to be incapable of controlling his sexual instincts and detained in custody. The application was made under s 59 of the Sentencing Act, following the repeal of the Criminal Law (Sentencing) Act 1988 (SA). The primary judge had refused the application, finding that the appellant had not satisfied the court that he was willing to control his sexual instincts as required by s 59(1a)(a).

The legal issues before the court were whether s 59 permitted a "stepped down" approach to release on licence, where the court would consider imposing conditions if the appellant was unable to satisfy the court that he was both capable of and willing to control his sexual instincts. Specifically, the court had to determine the meaning of "willing" in s 59(1a)(a) and whether the satisfaction of the criteria in that subsection was a prerequisite to considering the imposition of licence conditions.

The court held that the word "willing" in s 59(1a)(a) was the opposite of "unwilling" as defined in s 57(1). It further held that s 59(1a)(a) established a threshold test, requiring a detained person to satisfy the court of the matters specified therein before the power to release on licence was enlivened. The question of imposing conditions on release only arose once the court was satisfied of these matters. The court dismissed the appeal, finding that this interpretation gave effect to the clear legislative intent and did not fail to have regard to the broader scheme.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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