Hore v The Queen - [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 has a history of deceit and there remains some evidence of denial, and he has limited resources available to him to build the supports he will need to exercise control of his instincts.
Sentencing Act 2017 ss 57, 58 and 59, referred to.
Wichen v The Queen [2020] SASC 157; Attorney-General v Kelly [2017] SASC 164; R v Sumner [2015] SASC 177; R v Iwanczenko [2019] SASC 140, applied.
Thomas v Attorney-General (SA) (2019) 133 SASR 302; R v Hore [2016] SASC 21; Police v Hore [2015] SASC 150; R v Hore [2011] SASCFC 60; R v Oliver [2002] EWCA Crim 2766; [2003] 1 C App R 28; R v F, JM (No 3) [2018] SASC 150, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"willing", "unwilling", "capable of controlling and willing to control the person's sexual instincts"

HORE v THE QUEEN
[2020] SASC 194
Introduction

The applicant, Mr Hore, is currently detained in custody under an order made by this Court pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 made on 19 February 2016. He now applies to be released on licence. For the reasons that follow, the application must be refused.
History of the applicant’s offending
In December 2003, the applicant committed an offence of indecent assault on a child (“the first offence”). He was 25 years old at the time. The applicant was friends with a family whose son and two other boys stayed overnight at the applicant’s house. The victim was ten years old. The victim’s evidence was that he was sharing a double bed with the applicant whilst the other two boys slept on the floor in the same room. The victim’s evidence was that the applicant touched him around his genital region, outside of his clothes. The applicant asked if he could continue and when the victim said no, the applicant stopped.
The applicant denied the charges and pleaded not guilty. He was convicted after a trial in 2007.
The applicant continued to deny the offending after the conviction including to Dr Balfour who was engaged to provide a pre-sentence report. In his interview with Dr Balfour he described himself as bisexual and described three relationships of substantial lengths with adults, two of whom were women and one was a man. He denied a sexual interest in children.
The applicant was sentenced to imprisonment for two years with a non-parole period of 15 months, suspended. He was directed to participate in an 18-month course at Owenia House designed at reducing the risk that he would commit a further sexual offence. He commenced that course in September 2007 and participated in it until March 2009.
At the time that the first offence was proceeding through the court process, between July and November 2007, the applicant was offending against another victim, who was 13 years old at the time (“the second offence”).
The second victim was the son of the applicant’s girlfriend. There were difficulties in the girlfriend’s household and the child went to live briefly with the applicant. It was during that time that the applicant offended against him.
The applicant was charged with masturbating the victim on one occasion. There was evidence of uncharged acts of the applicant massaging the victim on the legs, masturbating him and attempting to put his finger in the boy’s anus. The boy’s evidence was that the applicant gave him a mobile phone with homosexual pornography on it and contrived to have him dress himself in front of the applicant after showering.
In cross-examination on this application for release on licence, in respect of the act for which he was convicted the applicant agreed that he knew what he was doing was wrong but that he could not, and did not want to, stop.[1] The applicant was also having a sexual relationship with the victim’s mother and this, he later conceded in a psychiatric assessment, was for the purpose of grooming the family in order to gain access to the child.
[1] Transcript of hearing on 11 June 2019 in R v Hore (SCCRM-18-62) at page 58 (lines 6-17).
The applicant was not charged with the second offence until 2010. He pleaded not guilty and was convicted following a trial. He appealed the conviction on grounds related to the sufficiency of evidence. His appeal was dismissed by the Court of Criminal Appeal. In dismissing the appeal, Kourakis J (as he then was) observed that the evidence was more than sufficient to support the guilty verdict.[2]
[2] R v Hore [2011] SASCFC 60 at [55]-[57].
In relation to the second offence, the applicant was imprisoned for two years and six months with a non-parole period of one year and six months. During this sentence of imprisonment, the applicant attended a sexual behaviour clinic within the prison over a seven month period in 2011.
The applicant was released from custody in May 2012 and was on parole until February 2013. He was a registered sex offender. Under his ANCOR conditions, he was required to notify ANCOR of any change of address within 14 days.
At that time, he was living in Port Pirie with a woman. In contravention of his conditions, he used the internet. He met another woman, AM, online via FaceBook and then in person. AM lived in the Riverland with her three children. He later told Dr Furst, psychiatrist, that he did not know that she had children until they met in person.
Knowing that AM had three children, the applicant moved to the Riverland to live with her in about September 2013. He reported to Dr Furst that he had not been looking for access to children on that occasion but rather looking for a way out of the relationship he was in.
The applicant maintains that at the time he moved to the Riverland, he rang an ANCOR phone number and left a message to the effect that he was changing his address, on a recorded message service. No one called back. He also later observed that he told his family that he was going to live with AM and her children, and no one challenged him. Some months later, when South Australian Police (“SAPOL”) contacted him by phone for a check in, he did not inform the officer that he was living in a house in the Riverland with three children under the age of 12.
The applicant admits that even though he had undertaken some therapy in prison, whilst living in the Riverland he was still aroused by the sight of children though “not as much”.
While he was living with AM, her father gave or sold to them a used computer. The applicant says that he “took over the owner profile” for the computer. The three children also had profiles on the computer. The applicant’s evidence was that he password-protected his profile. He said that while he was looking through the picture files stored on the computer by some previous owner, he came across an image of a naked boy on a boat with two girls. He says he immediately closed the folder without looking further into its contents, but he did not delete it or tell anyone of its existence.
In December 2013, it came to SAPOL’s attention that the applicant was living at the Riverland address. He was arrested and taken to the Berri police station for questioning about the breach of his conditions. AM maintained that a day or so later, the applicant’s father went to her house and asked for access to the computer on behalf of the applicant. He was not able to access it due to the password protection. AM became suspicious and provided the computer to police. Officers required the applicant to provide his password and when the computer was searched they detected 481 items of child exploitation material on it. The items were still images and videos.
The images and videos were classified by reference to the nine level scale developed in the UK and adopted in Australian courts.[3] Of the images and videos, 372 were categorised as falling within the least serious category, 87 fell within the second-least serious category, and 20 files were found to fall within the more serious fourth of nine classes in an ascending scale of seriousness.
[3] R v Oliver [2002] EWCA Crim 2766; [2003] 1 C App R 28.
The applicant was charged with failing, as a registrable offender, to comply with reporting conditions without reasonable excuse, contrary to section 44(1) of the Child Sex Offenders Registration Act 2006. The three breaches of his ANCOR conditions were the unreported use of the internet, the failure to report a change of address, and failure to advise that he had taken up accommodation in a household with three children. He was also charged, on information, with the offence (in its basic form) of possession of child pornography knowing of its pornographic nature, contrary to section 63A of the Criminal Law Consolidation Act 1935.
A magistrate imposed a single sentence for the whole of the offending. The applicant was sentenced to 15 months imprisonment with a non-parole period of 12 months with the balance, after serving six months, to be suspended upon the applicant entering into a bond to be of good behaviour for two years.
The Crown appealed this sentence as erroneous with respect to the partial suspension and a Judge of this Court upheld the appeal and resentenced the applicant.[4] The effect of the resentencing was that the applicant was liable to serve a head sentence of 16 months imprisonment with a non-parole period of ten months, both backdated to commence 10 April 2015.
[4] Police v Hore [2015] SASC 150 (Nicholson J).
In the proceedings on this application for release on licence, the applicant’s evidence was that he should have disposed of the child exploitation material when he found it. He said:[5]
Q. Looking at your attitude now -
A. Yes.
Q. - what do you say about the possession of child pornography on the computer.
A. For me, you know, as soon as I saw it I should have done something about it. I shouldn't, you know, I should never look - once I saw it on the computer I should have deleted it but I was afraid if I did and there was still remnants on the computer with my history it would look bad for myself.
Q. What would you do if confronted with that situation now.
A. I would basically, one, tell the person who I am living with and also take it to the police myself.
[5] Transcript of hearing on 11 June 2019 in R v Hore (SCCRM-18-62) at page 20 (lines 31-38) and page 21 (lines 1-5).
The applicant was then cross-examined about saying to Dr Nambiar, psychiatrist, on 8 September 2015 for the purposes of Dr Nambiar’s first report that the images “weren’t so bad”, but he did not recall making such a statement.[6]
[6] Ibid at page 69 (lines 33-37). Dr Nambiar also records this statement being made to him in his report dated 14 September 2015.
Whilst the applicant was serving this sentence, the Crown applied to this Court under s 23 of the Criminal Law (Sentencing) Act 1988 for the applicant to be detained, following completion of his sentence, on the grounds that he was incapable or unwilling to control his sexual instincts. On 19 February 2016, after considering various materials including reports of psychiatrists, Dr Begg and Dr Nambiar, the applicant was found to be unwilling to control his sexual instincts and he was detained in custody until further order.
In making the order, Nicholson J said:[7]
[7] R v Hore [2016] SASC 21 at [34]-[40].
I accept the submission that the respondent’s criminal conduct to this point is not of the most serious type when regard is had to the range of potential sexual offending against young children. Nevertheless, it is of a very serious nature. Furthermore, information now in the public domain and that repeatedly comes before the courts is to the effect that even relatively minor sexual offending against a child can (although will not necessarily) lead to very serious consequences for a victim’s emotional and psychological development and that of their close family members. Further, the respondent’s offending has been persistent and notwithstanding the treatment programs undertaken and the deterrent effect to be expected from the respondent’s interactions with the criminal justice system over a number of years (including two prison sentences). In addition, there is the covert and deceitful nature of the offending as described by the psychiatrists and the almost complete lack of insight and empathy for victims demonstrated to this point.
I accept that if all of the controls and restrictions suggested by the respondent were to be effected and observed by the respondent, the undoubted serious risk to the community that the respondent poses would be reduced. However, I am not confident that the respondent would observe the restrictions and controls. He has demonstrated in the past that he is not prepared to do so. In this respect, the egregious breaches of the reporting obligations that were in place after leaving prison, whereby he engaged in internet investigations with the purpose of meeting another family and as a result of which he commenced to live with a young woman with three small children without advising the authorities, is telling.
I have also formed the view on the evidence that the prospects of any appreciable rehabilitation taking place are far greater through the programs that would become available in custody, albeit with the delays necessarily involved, than with respect to the programs available at Owenia House or through a private psychologist or counselling service which would be on a wholly voluntary basis. Again, given the respondent’s history, I am not confident that he would have the determination and the discipline to persist in a wholly voluntary environment.
An order under section 23 is an exceptional order and should only be made where it is really required to protect the public. Nevertheless, it should always be borne in mind that the paramount consideration before the Court in determining whether to make such an order is the safety of the community.
I also accept that an order under section 23 should only be made sparingly and in clear cases and that it involves an exercise of balancing the interests of the community against the very strong imperative in our legal system of respecting a citizen’s right not to be imprisoned without just cause. Only if the respondent represents a sufficient and continuing degree of danger to the community can the making of such an exceptional order be justified.
In my view, the risk of further sexual offending against children should the respondent be released is very high and will remain so unless and until the respondent genuinely engages with and responds to further counselling and rehabilitative programs. Whilst the controls and protections available, were the respondent to be released into the community and advocated on behalf of the respondent, might assist in ameliorating the risk he poses, any such amelioration would only be for the short term in the absence of genuine rehabilitative effort. The community requires protection over the long term and this is most likely to be achieved through the programs available whilst in custody.
Having weighed the competing considerations I came to the view, at the time I made the order referred to in paragraph [3] above, that the discretion available under section 23 was to be exercised in favour of making that order.
(footnotes omitted)
Between May 2016 and June 2017 whilst in custody, the applicant completed 45 one-on-one sessions with a psychologist, Ms Bruggemann.
On 10 August 2016, the applicant’s sentence concluded. Since that time, he has been detained in custody pursuant to the order. He has now been detained for more than four years, which is a period longer than any of the sentences he received for the offences he has committed.
Initiation of application and governing law
On 1 March 2018, the applicant applied pursuant to s 24(1) of the Criminal Law (Sentencing) Act 1988 to be released from detention in custody on a date specified by the court, subject to such conditions as the Parole Board thinks fit.
On 30 April 2018, the Criminal Law (Sentencing) Act 1988 was repealed and the Sentencing Act 2017 commenced operation. Shortly after its commencement, on 25 June 2018, the Sentencing Act 2017 was amended by the Sentencing (Release on Licence) Amendment Act 2018. Part 3 of Schedule 1 to the Sentencing Act 2017 was amended to include the following transitional provision:
(2)Section 59 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
…
(c) An application under s 24 of the repealed Act for the release on licence from an order for detention under s 23 of the repealed Act where the application was made but not finalised before that commencement.

It was common ground that the application was made but not completed before the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018. Accordingly, the application is to be determined in accordance with s 59 of the Sentencing Act 2017.
That section provides that this court may, on application, authorise the release on licence of a person detained in custody under Division 5 of the Sentencing Act 2017. Relevantly, s 59(1a) provides:
(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.
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.
The applicant explained that it was when he participated in the Sexual Behaviour Clinic at Mt Gambier Prison between May 2011 and December 2011 that he began to accept that he had a problem and admit that he had committed the earlier offences. However, he did not fully implement what he had learnt which led him to reoffend.
He was released on parole on 24 May 2012 and his parole ended on 26 February 2013. He commenced a relationship with a woman and moved to Port Pirie. He remained subject to ANCOR obligations. He started up his own tow truck business which he ran until he was taken into custody for the third offences. The applicant described how he had justified to himself his move to the Riverland to live with a family by the fact that SAPOL had not stopped him and his family had not challenged him.
In relation to the images on the computer, the applicant’s evidence was that he did not delete them because he thought “it would look bad for him if he did” and he now realises that he should have told the person he was living with or taken them to the police.[10] However, he denied that he tried to have the files deleted from his computer when he realised that the computer was likely to be inspected by police.
[10] Ibid at pages 20 (lines 35-38) and 21 (lines1-2).
In May 2016, whilst serving his sentence for the third offences, he commenced one-on-one sessions with psychologist Ms Bruggemann. He started keeping a “feelings journal” which he said had assisted him to keep track of his emotions and thoughts.[11] The applicant’s account of his offending is one that describes it as a misdirected exploration of his bisexuality.
[11] Ibid at page 23.
The applicant also tendered a document he prepared since undertaking the therapy with Ms Bruggemann. It is a four-page document the applicant typed himself at the Port Lincoln prison, entitled “What I have learnt and how I am going to manage my future non-offending life”. In it, the applicant sets out his goals and describes what his “red flags” are. It is essentially a summary of the lessons Ms Bruggemann worked with him on, in his words.
The applicant now uses what he called his “MCM” mechanism whereby he reminds himself to “monitor, challenge and modify his thoughts”.[12] If he is having deviant thoughts, he distracts himself with other activities such as baking. He believes that the anti-depressant medication he is on has lowered his libido and he observes that his sexual thoughts are now more often directed at adult males than children. He said he had learned from Ms Bruggemann that,[13]
… half-truths won't get you anywhere in life basically. You've got to tell the whole story, not half the story for people to understand who you are and what you're about. And also that not everybody is out for their own benefit. There are people there that are nice people, will support you, will listen to you, will be able to help you, not there for their own benefit, and also put myself first, not others.
[12] Ibid at page 27.
[13] Ibid at page 27 (lines 33-38) and page 28 (lines 1-2).
He summarised his attitudes then and now as follows:[14]
Q. Looking back at that offending, what was your attitude to it when you were on the Owenia House program.
A. On Owenia House, as I said earlier, I didn't see it as a problem because it happened to me and, you know, I'm fine, so I didn't hurt anybody.
Q. At the beginning of the SBC course.
A. At the beginning of SBC I personally acknowledged that, you know, I have a problem, but still hadn't really fully revealed to the family and friends that I had a problem, or anybody else really, so that was at the start and then during it I found myself realising that they can't help me if they don't understand the full story so I started opening up to the facilitator, mum, dad and my mate as well.
Q. What is your attitude to the offending now.
A. There was no need - you know, there's no place in society for what I did. You know, I hurt a lot of people for my own benefit.
[14] Ibid at page 28 (lines 7-24).
In cross-examination, the applicant admitted that he was still sexually attracted to boys in the age range 7 to 13.[15] The last time the applicant saw a boy in that age range was in 2013. He says he thinks he now “has the tools to manage [his] thoughts – and thoughts and feelings about that”.[16] However, he readily conceded that learning the theory was quite different from putting it into practice. He said: [17]
Everything I’ve learned in here, you know, I can’t really – I can put some of it into practice while I’m in prison but you know, the big test is if I am released how I’m going to manage those situations.
[15] Ibid at page 42 (lines 3-7).
[16] Ibid at page 75 (lines 20-23).
[17] Ibid at page 75 (lines 26-29).
He conceded the risks:[18]
[18] Ibid at page 27 (lines 33-38) and page 28 (lines 1-2).
Q. Because you accept now that being in the presence of children is something that's very risky for you.
A. Yes.
Q. I want you to assume that you're released into the community and you have the opportunity to offend against a 10-year-old boy, I want you to assume that he is someone that has great trust in you and that you have access to him, he lives with you.
A. Yep.
Q. That would be a very risky situation for you to be in.
A. Very risky, yes.
Q. Because there would definitely be a serious risk -
A. Yes.
Q. - that you would take that opportunity and offend against that boy.
A. There is that opportunity, yes.
Q. And you would agree that there was a very significant risk -
A. Yes.
Q. - being in that position.
A. Yes.
The applicant gave evidence of his plans with respect to his release, if granted. He has registered with Offenders Aid and Rehabilitation Services accommodation and identifies his mother, step-father, and his “best mate Tim” as people who will support him. He wants to work on his relationship with his brother with whom he has had very limited contact for many years due to his offending. He hopes to establish regular sessions with a psychologist.
He expressed a desire to return to the tow truck business but does not know whether he will be able to do so. He has considered perhaps doing electrical tag and testing work but observed that it will depend on the conditions of his release.[19] He acknowledges he will not be allowed to use the internet on release and is unsure how he will navigate Centrelink and other required sites.[20] He wants to return to night-time ten-pin bowling as a leisure pursuit.
[19] Ibid at page 38.
[20] Ibid at page 40.
In relation to his dealings with others, the applicant stated that others need to know his situation. He said,[21]
… in the past once that support network has disappeared I have found myself in situations. So for me I prefer to have, you know, like I know when I get out I’ll be under Corrections anyway but for me it’s more to do with the psychologist side of it. If that’s Owenia House, that’s Owenia House, if it’s a private psychologist, a private psychologist.
And also to set myself up by getting my own place, getting back into work and getting into appropriate friendships, relationships.
[21] Ibid at page 41 (lines 8-17).
The expert evidence
In Attorney-General v Kelly,[22] Nicholson J observed in the context of an application under the former s 23 of the Criminal Law (Sentencing) Act 1988 that “an opinion to (the effect of whether an applicant is unwilling) by any or all of the medical practitioners who provide a report is neither unnecessary, nor a sufficient requirement, although the court must “have regard” to their opinions”.[23]
[22] [2017] SASC 164.
[23] Ibid at [21] citing with approval R v Sumner [2015] SASC 177 at [32]-[33] and [35]-[38] (Nicholson J).
Such an approach is applicable to the Court’s task under s 59 of the Sentencing Act 2017. The medical practitioners assist the Court to reach its decision by providing evidence as to the applicant’s behaviour, both past and predicted.
In respect of the applicant, there was a body of evidence relating to his risk of re-offending that pre-dated the evidence ordered by the Court for the purposes of the application for release on licence.
Ms Leyna Bruggemann, forensic psychologist, provided a report dated 18 July 2017 following her one-on-one interventions whilst the applicant was in Mt Gambier prison. After those sessions, Clark Sim, a clinician at the Sexual Behaviour Clinic, assessed the applicant in June 2017 for the Department against a number of risk factors from which the applicant was assessed as “high risk”, a reduction from “very high” prior to an earlier assessment.[24] Ms Bruggemann said in her report of 18 July 2017:[25]
Mr Hore’s estimated risk level remains elevated by virtue of a number of static or unchangeable risk factors that are not amenable to treatment, for example his offending history. Following treatment, Mr Hore appeared to have progressed in several of his dynamic or changeable risk factors. Specifically he appeared to have increased his understanding of the origins of interpersonal difficulties which then impacted on his use of cognitive distortions explicitly related to the justification and minimisation of his sexual offending. …. At the time of Mr Hore’s post-treatment assessment, the key risk factors as remaining relevant and requiring monitoring were: deviant sexual interests, capacity for relationship stability, cooperation with supervision, significant social supports, emotional identification with children, sexual preoccupation and using sex as a coping mechanism to regulate his emotional state.
[24] Report of Clark Sim dated 22 June 2017 at page 12.
[25] Post-Individual Treatment Report of Leyna Bruggemann dated 18 July 2017 at pages 7 (lines 36-42) and 8 (lines 16-19).
Dr Ian Jennings, consultant psychiatrist, assessed the applicant in order to assist the Court to determine Mr Hore’s application to be released on licence under s 24(1a) of the Criminal Law (Sentencing) Act 1988 which was then in force. Dr Jennings provided the Court with a report dated 25 June 2018.
Dr Jennings formed the view that the applicant suffered from no significant psychiatric, neurological or intellectual condition that would make him incapable of controlling his sexual urges.[26] Dr Jennings noted that since the earlier reports of Dr Nambiar and Dr Begg upon which the original order for indefinite detention was based, the applicant had been in custody and it was more difficult to assess the likelihood of his reoffending. However, noting Ms Bruggemann’s assessment that he remained, post-therapy, at high risk of offending and noting further his continued minimisation of the seriousness of the occasion of accessing the child exploitation material, describing it as “only possession”, Dr Jennings formed the view that the applicant still did not have full insight into the gravity of his behaviour.[27] Dr Jennings considered that he would need significant conditions to control his behaviour and expressed concern about reoffending because of his limited social supports and the further limits on building a network of supports that the conditions would inevitably impose.[28] He concluded that:[29]
The assessment of Mr Hore remaining at high risk of reoffending following his treatment during his current incarceration and his persistent tendency to minimise his offending reported to me during my assessment indicates to me that he continues to be at risk of being unwilling to control his sexual instincts.
[26] Report of Dr Ian Jennings dated 25 June 2019 at page 7.
[27] Ibid.
[28] Ibid.
[29] Ibid.
The effect of the amendments to the legislation that occurred at this point was to place an onus on a person detained indefinitely to establish that they were no longer unwilling or incapable of controlling their sexual instincts. This led to the applicant’s decision to give evidence in support of his application. Counsel for the applicant and for the State agreed that the appropriate course of action would be for the applicant’s evidence to be made available to the psychiatrists being asked to assist the Court with their views as to the applicant. This could not occur because Dr Jennings then retired, and the parties agreed that another psychiatrist would need to provide a report and evidence in order to satisfy the legislative requirement that the Court have regard to the reports of two practitioners.
Dr Furst was therefore engaged to assess the applicant. He is the Medical Head of Unit for the Forensic Community Mental Health Service. In 2018 when Dr Furst first saw the applicant, he used the Static-99R risk assessment tool which he described as being a good test for identifying people who are at a low risk of sexual offending and those who are at a high risk of sexual offending. He said, “The predictive value of the Static-99R is less good for those who score in the moderate risk category”.[30] He described it nevertheless as a good aid to clinical judgement. When administered to the applicant the test yielded a score of 4-5 which is the Moderate-High risk category.[31] To assess the dynamic factors associated with the applicant’s character, Dr Furst administered the RSVP tool to the applicant. Having done so, Dr Furst concluded in 2018 that the applicant’s risk of reoffending remained in the moderate level of risk.[32]
[30] Report of Dr Paul Furst dated 24 December 2018 at [10.1].
[31] Ibid.
[32] Ibid at [10.2]-[10.3] and [11.2].
In his report of 24 December 2018, Dr Furst concluded that the applicant was not incapable of controlling his sexual instincts but that whether he could be said to be willing to control his instincts would depend on the environment into which he was released.[33] Dr Furst observed that the legal definition of unwilling, namely that, “…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” is not scientific.[34] He concluded that: [35]
If he were supported in the community and had active follow-up and monitoring to ensure that he did not access the internet or social media and he did not have contact with minors, then there is a relatively low risk that he would offend. However, if he had unfettered access to the internet and was allowed to have unmonitored access to minors, then his risk would be much higher.
Dr Furst continued:[36]
In order to make further improvement, he will need to be exposed to some degree to the normal stresses and strains of everyday life and be able to review these things and his reactions with an experienced therapist … then his risk may continue to fall lower.
[33] Ibid at [11.3].
[34] Ibid.
[35] Ibid.
[36] Ibid at [10.3].
Dr Furst considered that there was a relatively low risk that the applicant would reoffend but that this was dependent on him being supported in the community, having active follow up and monitoring to ensure that he did not access the internet or social media and did not have contact with minors.

In his second report of 24 March 2020, written after he had reviewed the applicant’s evidence, he opined that it remained the case that Mr Hore presented a moderate likelihood of reoffending, and more likely than not to offend if released under strict conditions and would be at high risk if released without any conditions.[37]
[37] Report of Dr Paul Furst dated 24 March 2020 at [5.6].
In his oral evidence, Dr Furst said that he thought that the applicant understood that he had cognitive distortions and that this was a “move forward” following the therapy with Ms Bruggemann.[38] The applicant had begun to recognise that other people’s feelings were important and this reduced the risk of re-offending.
[38] Transcript of hearing on 1 May 2020 in R v Hore (SCCRM-18-62) at page 56.
However, Dr Furst stated that if the applicant were given the opportunity to offend, he is “very risky”.[39] He agreed that this could include befriending a person who has children, which would give him the possibility of an opportunity to reoffend. Dr Furst elaborated by observing that he did not consider that Mr Hore would fail to exercise appropriate control of his sexual instincts given a single opportunity, but if he were given the opportunity or multiple opportunities over time that the risk was quite significant:[40]
Q. There is a good chance, isn't there, if he is given the opportunity that he would fail to exercise appropriate control of his sexual instincts.
A. It comes back to the question of 'given an opportunity'. Given a single opportunity, probably not. Given the opportunity or multiple opportunities over time then, yes, quite significant risk.
[39] Report of Dr Paul Furst dated 24 March 2020 at [5.6]; Transcript of hearing on 1 May 2020 in R v Hore (SCCRM-18-62) at page 92 (lines 10-31).
[40] Transcript of hearing on 1 May 2020 in R v Hore (SCCRM-18-62) at page 110 (lines 20-26).
Dr Furst considered that the risk might be activated where there was an opportunity to cultivate a relationship. He thought that with external controls on him, the risk of his offending was low because the applicant is not likely to offend against a child upon a single chance meeting. He said:[41]
Yes, absolutely and that is my point too, is that very much, if he's in the community and he's not living with somebody and he has these things in place, I don't think he will offend, you know, with those supports and monitoring and regulation, all of those things. I don't (sic) he's someone who would be walking through a department store and would offend against a child. His risk is very much about becoming involved with a person, with a family, with people who have children and the risk, I think, is that without that monitoring and support, his involvement or interaction with children might not even be initiated by him, it might be something that is incidental - it's at a club, it's at some kind of social function, it's whatever. That relationship slowly develops. The risk is then that he minimises that and says 'Well, you know, it's okay, I'm doing all the right things, there's nothing going on here' and as that relationship progresses, then it becomes, perhaps, that he's starting to have more deviant thoughts and he worms his way into a relationship and ends up in that situation that is put to him at line 8. That's where that risk lies, absolutely.
[41] Ibid at page 93 (lines 5-26).
After cross examination, Dr Furst was not moved to change his opinion as to the risk. He described it as follows:[42]
Q. Is it your opinion the applicant is unwilling to control his sexual instincts, given an opportunity to offend there is a significant risk he would fail to exercise control.
A. I come back to his answer where if he was put in that position, given the opportunity to offend he is very risky and I would agree significant risk.
Q. That opportunity could, for example, include befriending someone, not even being in a relationship with them, not even living with them, but them having young children.
A. Yes.
Q. I think you have already agreed he's capable of controlling but as of today unwilling given the test.
A. Yes.
[42] Ibid at page 110 (lines 6-26).
The bind that the applicant finds himself in with respect to further treatment was described by Dr Furst as follows:[43]
Q. Is there any more he could do to manage those risks.
A. I don't think there's anything different, in particular, that he could do. As with any activity, the longer you do it, the better you get at it, so he could become more practised at it over time, so it might become more of a reflex action or reflective practice rather than sort of a more conscious, deliberate thing that he puts in place, but, in essence, I can't really think of anything else he could do in custody in terms of treatment or therapy to progress his case forward.
[43] Ibid at page 64 (lines 15-24).
Later, he said that the applicant is most likely to be able to reduce his risk if he were to continue with his therapy in the community. This is because he needs exposure to experiences that he can reflect on and discuss with his therapist.[44] He noted that the 6-10 funded sessions that can be obtained through a mental health plan would not be sufficient.[45] He also observed that that there is no longer a maintenance program offered by Corrections for those who have done the sexual behaviour clinic. What the applicant can do in prison, according to Dr Furst, is challenge his thoughts, and divert himself from inappropriate thoughts.
[44] Ibid at page 73 (lines 20-29).
[45] Ibid at page 74 (lines 21-27).
Dr Nambiar is the Clinical Director of the SA Forensic Mental Health Service and has a part-time private psychiatry practice. He gave a report dated 14 September 2015 at the request of the Court for the purposes of determining whether the applicant should be made subject to an order for indefinite detention. At that time Dr Nambiar concluded that the applicant was capable but unwilling to exercise appropriate control over his sexual instincts.[46]
[46] Report of Dr Narain Nambier dated 14 September 2015 at page 12.
After reviewing transcript of the applicant’s oral evidence, and after a further consultation in January 2020 to inform a report for the Court in respect of the applicant’s current application, Dr Nambiar expressed the view in a report of 3 February 2020 that the risk posed by Mr Hore following his one-on-one sessions with Ms Bruggemann had reduced.[47] He acknowledged that the applicant has expressed a willingness to control his instincts and can speak to the strategies that he would employ to achieve this. Dr Nambiar said: [48]
Despite this, there is still a risk of sexual reoffending if restrictions were not placed on him. It is unclear as to whether he would in fact be open and honest and disclose behaviours that may lead to offending if given the opportunity. This could only be tested if he were released into the community with strict supervision.
[47] Report of Dr Narain Nambiar dated 3 February 2020 at pages 10-11.
[48] Ibid at page 11.
He observed that recommendations made by Ms Bruggemann and by Dr Furst were “entirely reasonable and would then place him at relatively low risk with regards to reoffending. Whether a relatively low risk is still considered significant is a matter for the courts”.[49] He concluded:[50]
Mr Hore has stated a willingness to control his sexual instincts and made a commitment to engage in therapy all of which are encouraging factors. What is left to assess [is] his ability to translate what he has learned in theory into practice.
[49] Ibid.
[50] Ibid.
Dr Nambiar gave oral evidence on 1 May 2020. He spoke of the applicant’s increased insight into his offending but also observed that the applicant’s understanding is still incomplete because of a conflation of his bisexual orientation and his offending.[51] He considered it to be a matter of concern that the applicant had developed an account of his offending that was explained through bisexuality rather than a more direct acceptance of his paedophilia.[52] He expressed the view that the continued presence, as at January 2020, of the applicant’s fantasies in relation to pre-pubescent boys remains an important risk factor and that masturbating to those images reinforces the conduct by linking it with pleasure.[53] Dr Nambiar concluded that external controls upon the applicant would provide more reliable risk mitigation than internal factors if he were to be released.[54]
[51] Transcript of hearing on 1 May 2020 in R v Hore (SCCRM-18-62) at page 15.
[52] Ibid at page 25.
[53] Ibid at page 43.
[54] Ibid at page 47.
Dr Nambiar affirmed the conclusion in his report that if various recommendations made by Ms Bruggemann were put into place and there were constraints upon the applicant, the risk would be reduced such that it would be “relatively low with regards to re-offending”.[55] He considered that external controls were what would reduce the risk, rather than the applicant’s internal factors. However, he agreed in cross-examination that there is a “good chance” that the applicant would fail to exercise appropriate control of sexual instincts if given the opportunity.[56]
[55] Ibid at page 26.
[56] Ibid at page 47.
Dr Nambiar went on to observe that there was little by way of treatment that is currently available for the applicant to undertake whilst in prison.[57] He also expressed caution about the conclusions that could be drawn from the applicant’s insight insofar as it might be a measure of his behaviour upon release. The following exchange with the Bench occurred:[58]
Q. Dr Nambiar, you said at one point that Mr Hore had a way to go in terms of his treatment. Is it necessarily the case that some of that treatment must occur in the dynamic environment of the community and interactions with a range of other people, or can the treatment be fully undertaken without Mr Hore being tested, as it were, in a number of interactions with people.
A. So in answer to that, the treatment cannot occur in isolation alone. What I - what's happened with Mr Hore is that he's had the preparatory work whilst he's been in custody, the next phase of treatment and there are steps in terms of that. At some point along that he would have to be in the community to try and demonstrate what he's learnt.
Q. But is it also because some of the treatment involves reflecting with whomever is providing the treatment to him on the outcomes of various interactions that he's had with people.
A. Yes.
[57] Ibid at page 21.
[58] Ibid at page 51 (lines 3-21).
What does the legislation require?
Division 5 of Part 3 of the Sentencing Act 2017 deals with custodial sentences and sexual offenders. Section 57 provides the authority for the court to make an order for the indefinite detention of a sexual offender in circumstances in which the court considers it appropriate to do so. Section 58 provides that a person who has been indefinitely detained may apply for discharge of the order. A discharge has the effect that the person is released from custody and is not subject to conditions upon release. Such an order might be made when the person has, by reason of infirmity, ceased to pose a risk to the community. In contrast, a person may apply for release on licence pursuant to s 59. Such an order may be appropriate when it is determined that the person is capable of controlling and willing to control their sexual instincts such that the order should be discharged but their release should be subject to conditions.
On an application for release on licence pursuant to s 59, the Court is required to take into consideration the reports of the medical practitioners that have been provided to the Court and any evidence or representations that the person may wish to put to the Court.
The Court must also have regard to a report provided to the Court by the Parole Board to assist the Court to determine the application, including the Parole Board’s opinion as to the effect that release on licence would have on the safety of the community, a report as to the probable circumstances of the person if they were to be released on licence and the Board’s view as to whether the person should be released on licence. Such a report could be obtained as part of the evidence-gathering phase or after the applicant’s evidence and medical evidence is received.
The Act mandates several conditions upon any person whose release is upon licence under s 59. Further to the mandatory conditions, the Parole Board may impose other conditions as it sees fit.
A key issue in dispute in this application is the proper meaning of the term “willing” in s 59. That requires a consideration of the scheme created by Division 5 of the Sentencing Act 2017 comprised of ss 56-67 of the Act inclusive. The division opens with some definitions including the following definition of “unwilling”:
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.
There is, however, no definition of “willing” as it appears in s 59(1a) to assist in understanding what is intended by the phrase “the person is both capable of controlling and willing to control the person’s sexual instincts”.
Whilst the term “unwilling” is defined for the purposes of s 57, there is no definition for the purpose of the words or phrases in s 59, and in particular there is no definition of “capable of controlling” or “willing to control”.
Counsel for the applicant invited the Court to conclude that “willing” within s 59 is to be given its ordinary meaning, being an expression of openness to do something or inclination toward it or intention to act in a particular way. The applicant submitted that the Court should not adopt the approach taken by the Court in R v Iwanczenko,[59] in which “willing” was said to be informed by the statutory definition of “unwilling” in s 57.
[59] [2019] SASC 140 (‘Iwanczenko’).
In Iwanczenko, Parker J considered the terms of s 57 and said,[60]
… the test in s 57(1) as to when a person will be regarded as being “unwilling to control sexual instincts” must also be applied for the purposes of s 59. As a result, the phrase “willing to control ... sexual instincts” in s 59(1a)(a) can be interpreted as the inverse of the definition in s 57(1). Thus, for the purposes of s 59(1a)(a), a person is willing to control their sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts.
[60] Ibid at [112].
The applicant invited the court to reject the inverse definition of “unwilling”. It was submitted that the effect of adopting the approach taken in Iwanczenko is to create an almost impossible hurdle for a person detained to overcome in order to be released on licence. The test of willingness becomes one that is achieved through the absence of a significant risk that the person will, if given an opportunity, fail to exercise appropriate control of their sexual instincts. If the test of willingness were understood by reference to its more natural and ordinary meaning, a genuine wish (accompanied by capability) will suffice.
The applicant argued that the principle of legality lends support to the conclusion that “willing” in s 58 should not be attributed a meaning derived from the definition of “unwilling” in s 57. The applicant submitted that it was consistent with the legislature’s intention, as indicated in the Second Reading speech of the 2018 amendments, and the reversal of the onus of proof in s 59, that the ordinary definition of “willing” provides the correct construction in s 59. In the absence of a clearer statement of the intention to curtail a person’s liberty, the applicant’s case was that the Court should be reluctant to resolve the statutory interpretation question against him.
The respondent, on the other hand, submitted that the meaning of “willing” is clearly intended to operate by reference to “unwilling” in s 57. The discharge or release of the detained person occurs when, having been found to be incapable of or unwilling to exert appropriate control over their sexual instincts, they later are found to be capable and willing such as to justify an order under s 58 or s 59. Counsel for the Director of Public Prosecutions therefore commended the interpretation taken by the Court in Iwanczenko as the correct approach.
The second reading speech contains the following statements:[61]
In the past, the court has expressed the view that, despite the risks an offender might pose to the safety of the community, it was appropriate to release the offender into the community on licence as the community could be adequately protected through a number of steps to be taken by the Department for Correctional Services and other agencies to manage those risks.
… this Bill amends the Sentencing Act to address concerns that had been raised about this approach. The reforms create a two-step process. Firstly, a detained person will need to satisfy the court that they are both capable of and willing to control their sexual instincts. If the Court is so satisfied, the Court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. This means that if the person cannot satisfy the Court that they are both capable and willing to control their sexual instincts, then the Court is unable to make an order to release the person on licence or to discharge their order of detention subject to one exception.
[61] South Australia, Parliamentary Debates, Legislative Council, 31 May 2018, 330.
Having considered these arguments, I adopt the construction reached by Parker J in Iwanczenko, that the term “willing” must be informed by the statutory definition of unwilling. The effect of importing into the definition of the concept of risk of failure to control sexual instincts when provided an opportunity is the expression of the necessity that the person’s willingness to control their instincts must endure to the point at which action is taken. It must not merely be a statement of wish expressed prior to the circumstances in which the intention translates into action. This is consistent with the purpose of the scheme as a whole. The applicant’s willingness is of concern to the community at the point of opportunity, rather than at the point at which the applicant is detained and contemplating release.
It is true that the definition of “unwilling” in s 57 is stated as being “for the purposes of” that section, and not for the Division as a whole. However, as the construction of the meaning of “willing” in s 59 adopted only draws support from the definition in s 57, and does not rely on the legislature’s instruction about the terms of s 57, that point cannot be determinative.
This construction is also consistent with that adopted by Kourakis CJ in Wichen v The Queen,[62] a decision delivered after the making of final submissions by the parties in this case. The Chief Justice made the following observations:[63]
First, the opening words of s 57(1) apply definitions set out in that subsection only to s 57. Secondly, the power to make an order of indefinite detention is not expressly conditioned on a finding that the person is incapable of controlling, or unwilling to control, their sexual instincts. However, if the power is not implicitly so conditioned, an order is nonetheless unlikely to be made in the absence of such a finding.
Thirdly, it will be observed that the power to release on licence is expressly conditional on a finding that the person is both capable of controlling and willing to control their sexual instincts. It will also be observed that s 58 does not expressly define willing as the converse of the term unwilling in s 57 of the Sentencing Act.
Mr Mead contended that the word unwilling in s 59 of the Sentencing Act should be given its ordinary meaning. The New Oxford Dictionary definition of willing is ‘ready to, prepared to, eager to do something’. The Macquarie Dictionary defines willing as ‘disposed or consenting’.
I acknowledge the force of Mr Mead’s submission, based as it is on the limitation of the definition of unwilling in s 57 of the Sentencing Act, but the construction for which he contends must be rejected. The word ‘unwilling’ is defined in s 57 of the Sentencing Act because it is not used in its ordinary meaning. The word ‘unwilling’ does not simply mean someone who is not disposed, not ready, prepared, or eager to do something. It is defined instead by reference to a risk assessment as to whether a person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. The more obvious explanation limiting the definition of unwilling to s 57 of the Sentencing Act is that s 59, focussed as it is on an order for release on licence, conditions that order on a finding that the applicant is willing to control his sexual instincts. It naturally uses its converse. True it is that the word ‘willing’ might have been defined in s 59 as the converse of unwilling. However, it was simply unnecessary to do so. Reading ss 57 and 59 of the Sentencing Act together, they can only provide a coherent regime for the detention and then, if circumstances warrant, the release on licence of a person if the word ‘willing’ in s 59 is the converse of the word ‘unwilling’ in s 57. So too for s 58.
It will be observed that the word ‘incapable’ is not defined in s 57 of the Sentencing Act. In the absence of a definition, the word ‘capable’ in ss 58 and 59 of the Sentencing Act must be the converse of incapable.
(footnotes omitted)
[62] [2020] SASC 157.
[63] Ibid at [107]-[111].

The Chief Justice went on to endorse Parker J’s interpretation in Iwanczenko that is set out earlier in this decision.
The applicant acknowledged that the Court might be persuaded to follow the approach taken in Iwanczenko. If that were the case, the applicant submitted that the risk of the applicant’s failure to exercise control over his sexual instincts must be assessed by reference to the licence conditions imposed or contemplated. That is, it was submitted that the assessment of whether the applicant is “willing” is to be determined as if licence conditions were in place, providing the context of what will realistically face the applicant as an opportunity to fail to control his sexual instincts once released. This, it was submitted, explains why the scheme provides for both unconditional immediate release and release on licence. Whereas s 58 allows for a person to be released unconditionally where they establish that the statutory criteria are met, a person may also be released pursuant to s 59 on licence where they can meet the statutory criteria as long as there are safeguards in place to enable that to be ensured.
The applicant submitted that there would be no reason for s 59 if it were not to provide a scheme whereby a person might be released because their risk had only been reduced by virtue of the conditions that might be imposed upon them.
This gives rise to the second issue of construction to be determined in this matter. Is s 59 properly understood to require consideration of the risk posed by the applicant before or after licence conditions are imposed?
Counsel for the Director submitted that s 59 establishes unequivocally that the task for the Court is to ascertain whether the applicant has established that he is capable of and willing to control his sexual instincts, where “willing” is understood as the inverse of “unwilling” as defined by s 57. If the applicant has established that he is willing and capable, then in light of the fact that the applicant may still pose some level of risk to the community, and bearing in mind the paramountcy of the safety of the community, the Court then considers the likely efficacy and cost of implementation of conditions that are proposed to achieve the protection of the community from the residual risk. Having undertaken those steps, the Court decides whether the application for release on licence should be granted.
On the approach advocated for by the Director, a risk that may be mitigated in a manner that is considered by the medical experts and the Court to be likely to be highly effective in reducing the risk posed by the applicant is nonetheless to be disregarded when determining whether the applicant is willing to control his sexual instincts within the meaning of the Act. 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. In Thomas v The Attorney-General for the State of South Australia,[64] the Kourakis CJ observed in respect of s 58:[65]
Plainly, then, there is considerable tension between s 58 of the Sentencing Act 2017 and Article 9 of the ICCPR. [International Covenant on Civil and Political Rights] The detention authorised by s 58 of the Sentencing Act 2017 may be characterised as arbitrary for the purposes of Article 9, both because a shorter period of detention, or less intensive restraints, might in many cases sufficiently protect the community, and because meaningful information cannot be provided in prison.
[64] (2019) 133 SASR 302.
[65] Ibid at 312.
That tension arises not only in respect of the making of the order for indefinite detention but in the requirement that on a consideration of the discharge of the order, the applicant must demonstrate a level of risk below that which can reasonably be expected to be controlled with conditions, and possibly below which the applicant can achieve within prison either because the static factors contribute such a significant component of the risk profile or because the steps that the person must take cannot be undertaken from within prison.
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.
Having determined those two issues of statutory interpretation, there is a further argument in favour of the construction adopted in Iwanczenko. The risk of not controlling sexual urges for the purpose of the meaning of “unwilling” must be “significant”. I respectfully adopt Kourakis CJ’s recent observation that such a risk must mean something more than any risk at all.[66] It should further be assumed that by the use of the terms “appreciable risk” and “significant risk” within the same Division, the legislature intended that those terms have different meanings. The risk that a person poses that they will, if given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts must be significant before the person is considered to be unwilling. There is an alternative basis for discharge of the order or for release on licence. That arises in s 58(1a)(b) or s 59(1a)(b) where the person no longer presents an appreciable risk to the safety of the community by virtue of age or infirmity.
[66] Wichen v The Queen [2020] SASC 157 at [20].
Read together, it can be seen that an applicant may establish that they have reduced the risk that they pose below a significant risk, whereupon they may be considered for release and conditions may be imposed to address any residual appreciable risk.
Analysis
The issue for the Court’s determination is whether the applicant has established that he is capable of and willing to exercise appropriate control over his sexual instincts, to be understood by reference to the preceding discussion.
The Court has had regard to the reports of Dr Furst and Dr Nambiar, and to the applicant’s oral evidence and the materials he tendered. That evidence has not established that the applicant has discharged the heavy burden that s 59 imposes.
The applicant still has a sexual interest in children
The applicant admits that he continues to have a sexual interest in children. The medical evidence supports the proposition that he is capable of not acting upon it. Whilst the evidence of Dr Furst and Dr Nambiar was to the effect that the applicant’s likelihood of reoffending had reduced by virtue of the work he did with Ms Bruggemann, neither considers that the risk has been significantly reduced because the static factors still dominate, because the applicant’s insight is not fully developed and he has not had an opportunity to develop appropriate behaviours through practising in a non-prison environment.
The test is whether the applicant is willing to exercise appropriate control of his sexual instincts in the sense that there is not a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. That question is to be determined by reference to him without consideration of the effect of any conditions that may be placed upon his release.
Neither Dr Furst’s nor Dr Nambiar’s evidence supported the proposition that the applicant met this test. I accept their evidence in this regard.
The applicant has a history of deceit and there remains some evidence of denial
The applicant has a history of lying about and minimising his offending. He lied about the first and second offending and the victims were required to give evidence to establish the offences he committed against them. He lied to Dr Balfour during the sentencing report process.
To some extent, the applicant’s evidence to this Court was forthright and demonstrated insight into the effect of his actions on the victims and his need to take responsibility for his past actions and his continuing urges. He did not seek to defend himself or backtrack or minimise in respect of allegations that had been established.
However, the applicant’s evidence about the pornography on the computer remains troubling. His claim that the images were on the computer when he took possession of it, and that he did not look at any more than one of the images, is implausible. I find it far more likely that the applicant considered that the use of child exploitation material was a way to meet his needs that did not carry the risks to him of offending against a child. I am inclined to take the view that the applicant continues to have a tendency to only be open about matters that have been proven against him.
The doubts that continue to attach to the applicant’s openness about his past offending decrease the confidence that can be had about his chances of success in the future. He has some further work to do in that regard.
The applicant has limited resources available to him to manage if things go wrong
The applicant does not have the luxury of an abundance of supports in the community to assist him to succeed. He intends to go to OARS accommodation in Adelaide on his release. He did this in 2012 and reported having a good relationship with his community corrections officer and with a counsellor, but nevertheless he offended again. The following exchange in cross-examination highlights the fact that even external supports have not previously prevented the applicant from reoffending following therapy:[67]
[67] Transcript of hearing on 11 June 20219 in R v Hore (SCCRM-18-62) at page 72 (lines 7-24).
Q. Why was it that you didn't comply with the restrictions that were placed upon you when you were in the community.
A. I did while I was on parole but once I come off the parole is when I reoffended.
Q. What was it about being on parole that stopped you from reoffending.
A. Because I felt that I had the support around me that I - you know, I had support, I had people that understood me, eg, Ms Charity Parrish.
Q. But having the support of Ms Parrish didn't stop you from being in possession of child pornography.
A. No.
Q. And having the support of your father didn't stop you from reoffending either, did it.
A. No.
Q. And your mother -
A. No.
The applicant referred to the supports upon which he would call if he found himself in difficulty. Unsurprisingly, these are not extensive. Mr Hore will be required to build, slowly, a network. In respect of dealing with loneliness, the applicant anticipates that he would ring his mother and talk things through with her rather than offending. Unfortunately, it is all too easy to see how this may not be possible, or sufficient. He is determined to be open about his past offending when new acquaintances start developing into deeper friendships. He will need to be prepared for the rejection that may accompany this and the risk that attaches to it that he will, again, seek comfort in sexual contact with children. He spoke of creating a new relationship with a psychologist. Dr Furst pointed out that there is only a small pool of specialists in this area, and subsidised therapy is very limited.
This may be an aspect of further development and planning for him.
The applicant is not willing to control his sexual instincts within the meaning of that phrase in s 59 of the Sentencing Act 2017
I accept that the applicant wants not to offend. He therefore envisages the life ahead of him upon release, as being one of using strategies to avoid offending. In his evidence, he acknowledged various risky scenarios that may face him. It is evident that the treatment he has engaged in previously has assisted him to understand the reasons for, the nature of and the consequences of his instincts. This includes the consequences on others. Within the very limited environment of his incarceration, he has used the strategies with some effect. In particular, he spoke of distracting himself with activities he found pleasurable such as baking, if he found that his thoughts were becoming directed at offending.
However, because of his continuing urges in relation to children, the fact that he is partly but not wholly open, and the limited internal and external supports he has to assist him, I am not satisfied that the applicant has demonstrated that he is willing to exercise appropriate control of his sexual instincts in the sense that the Act gives to that term.
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.
The application is dismissed.