Hore v The Queen

Case [2020] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

HORE v THE QUEEN

[2020] SASC 194

Judgment of The Honourable Justice Hughes

12 October 2020

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

Application for release on licence.

The applicant was convicted of one count of indecent assault against a child in 2007 in relation to which he received a suspended sentence. He was subsequently convicted of one count of aggravated indecent assault against a child in 2010. Upon his release from custody in May 2012, he was a registered sex offender with ANCOR conditions. In 2015, the applicant was convicted of three counts of failing, as a registrable offender, to comply with reporting conditions including for taking up residence with a woman with three young children.

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.

On 1 March 2018, the applicant filed this application for release on licence pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA). Since the application was made but not completed before the commencement of the Sentencing (Release on Licence) Amendment Act 2018 (SA), the application was determined in accordance with s 59 of the Sentencing Act 2017 (SA).

Held per Hughes J, refusing the application:

1. The proper meaning of the term “willing” in s 59 of the Sentencing Act 2017 (SA) is informed by the statutory definition of the term “unwilling” within s 57 however it is not determinative of the definition of “willing”. There must be significant risk that the person, if given an opportunity to commit a relevant offence, will fail to exercise appropriate control of their sexual instincts.

2.  The effect of importing the concept of risk of failure to control sexual instincts, when provided an opportunity to act, into the definition of “willing” is that the applicant’s willingness must be assessed at the point at which intention translates into action. It cannot merely be a statement of wish expressed prior to that point when the applicant is detained and contemplating release.

3. An assessment of risk considered under s 59 of the Sentencing Act 2017 (SA) requires consideration of the risk posed by the applicant before licence conditions are imposed. The applicant must demonstrate a level of risk below that which can reasonably be expected to be controlled with conditions. However, the risk is not required to be wholly removed and s 59 outlines other factors that are relevant to the decision.

4.  The applicant has not satisfied the Court that he is willing and capable of controlling his sexual instincts because he still has a sexual interest in children, he…

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Hore v The Queen [2020] SASC 194
Case
[2020] SASC 194
Decision Date

CaseChat Overview and Summary

The case of Hore v The Queen involved an application for release on licence by the applicant, who was convicted of child sexual offences. The Supreme Court of South Australia was required to decide whether the applicant was willing to control his sexual instincts and whether his release would pose a risk to the safety of the community. The court also had to consider whether the applicant had demonstrated remorse and insight into his offending behaviour.

The court found that the applicant had not demonstrated that he was willing to control his sexual instincts within the meaning of the statute. The court noted that the risk of reoffending was not addressed merely by the applicant's acknowledgement of prior wrongdoing or insight into his behaviour. The court also found that the applicant's release would pose a risk to the safety of the community. The court relied on the Parole Board's report and the fact that very few applications for release on licence had been successful since the amendments to the legislation.

The court concluded that the applicant was "trapped in a paradox" and that the scheme of the Act required the offender to demonstrate, from the artificial constraints of prison, that there was no sufficient risk that he would fail to exercise appropriate control. The court observed that this was an unfortunate result in a society as advanced as, and with the resources of, the State.

The application for release on licence was dismissed, and the applicant was not eligible to make a further application for a period of six months. The court declined to nominate a different period. The court also declined to order an updated report from the Parole Board and a report as to the costs of release because of the conclusion that had been reached.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 59(3) states that the paramount consideration for this court in determining an application for release on licence is to protect the safety of the community. Evidence of the applicant The applicant gave evidence on 1 June 2019. At the time of the first offending, in 2004, he was living with his father and the victim came to stay with him. This victim was the son of a friend. The applicant and the friend had a mutual interest in the speedway. The applicant used to babysit. The victim was 10. The victim’s father was his friend and his own father was his only other contact at that time. He was unemployed, lonely and depressed. He was charged with a single count of touching the boy in bed but, during his interview with Dr Nambiar in 2015 and in cross-examination, he admitted that there had been “two or three” more occasions over several months. He described himself as always having had difficulty with relationships with adults and getting along better with children. The offending against that victim ended when the applicant went to visit the boy’s family at their house and found the police there, interviewing the victim. The victim had reported the offending to his school. It was about 6-12 months after the offence with which he was charged. He felt annoyed and betrayed. The applicant acknowledged in his evidence that he was still denying his conduct in 2010 when he was being sentenced by Judge Barrett:[8][8] Transcript of hearing on 11 June 2019 in R v Hore (SCCRM-18-62) at page 10 (lines 21-34).Q. When your matter came on for trial - A. Yes. Q. - before Judge Barrett - A. Yes. Q. - you said you pleaded not guilty. A. That is correct. Q. At that time, what was your attitude to the offending. A. My attitude to offending at that stage was I personally knew what I'd done was wrong but still didn't want to fully own up to it. Q. So why did you deny it. A. Because I - for me it was letting my family down again and also I didn't want to be labelled or known as a paedophile. He participated in a course at Owenia House but said that he got little out of it because he felt betrayed by the course conveners after admissions he made were acted upon. In respect of the second victim, who was 13 years old, the applicant admitted that he had a sexual relationship with the boy’s mother in order to be able to have access to her son. She was the sister of his speedway teammate. He acknowledged that after being charged with the second offence he knew what he had done was wrong but maintained a denial of the alleged acts because he was ashamed to admit them to his family. In his evidence on the application for release on licence, the applicant readily acknowledged that he had lied previously about his offending. He acknowledged that in respect of the first offending he was in denial to others that he had committed the acts alleged and in denial to himself that he had done anything wrong:[9] [9] Ibid at page 7 (lines 12-30).Q. What was your attitude to the offending. A. That I didn't have a problem, that I did - I hadn't done anything wrong, as such.Q. When you say you didn't have a problem, what do you mean by that.A. That I didn't have a sexual interest in children. Q. Did you accept that you'd committed those offences then. A. To myself but not to the court or my family and friends. Q. Did you tell anyone.A. No.Q. Why did you deny the offending back then.A. Because I didn't want to let my family down and I was ashamed as well. I didn't want to believe that that was who I was, the kind of person that would offend against children. Q. What is your attitude to that offending now.A. Yeah, I shouldn't - you know, children are to be nurtured not hurt. I don't, you know, yeah I did offend against children and, you know, I am a sex offender.

Decision

Reasons for decision

Section 59(4)(c) requires the Court to take into account a report of the Parole Board in respect of the application. The Court has a report of the Board that pre-dates the amendments in the legislation. Had I found that the applicant was “willing” within the meaning of s 59, it would have been appropriate to seek an updated report from the Board, and also a report as to the costs of release pursuant to s 50(4)(d) which would have entailed consideration of the conditions upon which release was to be ordered. Those reports cannot assist the Court because of the conclusion that has been reached and I decline to order them.Conclusion In Wichen v The Queen,[70] the Court concluded that the offender’s innate disposition and entrenched patterns of behaviour prevented a conclusion that he was willing to control his sexual instincts within the meaning of “willing” that the statute has. Kourakis CJ concluded that the offender was “trapped in a paradox”.[71] The scheme of the Act requires the offender “to demonstrate, from the artificial constraints of prison, that there is no sufficient risk that he will fail to exercise appropriate control”.[72] His Honour concluded that the result may be that the offender is required to remain in prison until infirmity provides a basis for release. His Honour observed that this “is an unfortunate result in a society as advanced as, and with the resources of, our State”.[73] Very few applications for release on licence have arisen since the amendments to the legislation, and all of those brought to my attention have been dismissed.[74] By virtue of the requirement that the risk presented by the applicant be assessed as if external controls are not operating on him, it is a much more difficult task for the applicant to establish that his application should be granted. He can only continue to focus on the factors within his control.[70] [2020] SASC 157.[71] Ibid at [124].[72] Ibid.[73] Ibid.[74] R v F, JM (No 3) [2018] SASC 150; R v Iwanczencko [2019] SASC 140; Wichen v The Queen [2020] SASC 157. The application is dismissed.

Ratio Decidendi

Legal Principle Established

This Court recently refused an application for release on licence by an offender in the matter of Wichen v The Queen.[68] In that matter, the Chief Justice accepted an observation by Dr Nambiar, who had assessed Mr Wichen, that an offender might express regret and empathy retrospectively, and also express a desire to change and to not reoffend, but that recidivism might nevertheless follow because of the offender’s impulsive qualities.[69] Similarly, the risk of reoffending posed by the applicant is not addressed merely by his acknowledgement of prior wrongdoing or even the insight he has demonstrated into his behaviour. [68] [2020] SASC 157.[69] Ibid at [83].Consideration of other factors The applicant has been detained in prison for approximately four years since his sentence was completed. The Court is required by s 59(4a) not to have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence. Accordingly, I have not had regard to such considerations which would otherwise have been relevant. An applicant who has been refused release on licence may not make a further application for a period of six months, unless the Court directs a greater or lesser period. I decline to nominate a different period. Section 59(4)(c) requires the Court to take into account a report of the Parole Board in respect of the application. The Court has a report of the Board that pre-dates the amendments in the legislation. Had I found that the applicant was “willing” within the meaning of s 59, it would have been appropriate to seek an updated report from the Board, and also a report as to the costs of release pursuant to s 50(4)(d) which would have entailed consideration of the conditions upon which release was to be ordered. Those reports cannot assist the Court because of the conclusion that has been reached and I decline to order them.Conclusion In Wichen v The Queen,[70] the Court concluded that the offender’s innate disposition and entrenched patterns of behaviour prevented a conclusion that he was willing to control his sexual instincts within the meaning of “willing” that the statute has. Kourakis CJ concluded that the offender was “trapped in a paradox”.[71] The scheme of the Act requires the offender “to demonstrate, from the artificial constraints of prison, that there is no sufficient risk that he will fail to exercise appropriate control”.[72] His Honour concluded that the result may be that the offender is required to remain in prison until infirmity provides a basis for release. His Honour observed that this “is an unfortunate result in a society as advanced as, and with the resources of, our State”.[73] Very few applications for release on licence have arisen since the amendments to the legislation, and all of those brought to my attention have been dismissed.[74] By virtue of the requirement that the risk presented by the applicant be assessed as if external controls are not operating on him, it is a much more difficult task for the applicant to establish that his application should be granted. He can only continue to focus on the factors within his control.[70] [2020] SASC 157.[71] Ibid at [124].[72] Ibid.[73] Ibid.[74] R v F, JM (No 3) [2018] SASC 150; R v Iwanczencko [2019] SASC 140; Wichen v The Queen [2020] SASC 157.