Hore v The Queen

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.