Hore v The Queen

The High Court of Australia considered appeals concerning the interpretation of provisions within the *Sentencing Act 2017* (SA) relating to the release on licence of persons convicted of certain sexual offences and ordered to be detained indefinitely. The central dispute revolved around the criteria for such release, specifically the requirement for a person to satisfy the Supreme Court that they are both "capable" of controlling and "willing" to control their sexual instincts.

The legal issues before the High Court were whether the term "willing" in section 59(1A)(a) of the Act should be interpreted as the converse of "unwilling" as defined in section 57(1), and whether the Supreme Court, when assessing willingness, was obliged to exclude from consideration the likely effect of the conditions of release on licence upon the appellant's willingness to exercise appropriate control of their sexual instincts. Section 57(1) defines a person as "unwilling" if there is a significant risk that they would, if given the opportunity, fail to exercise appropriate control of their sexual instincts.

The High Court reasoned that the term "willing" in section 59(1A)(a) should indeed be understood as the opposite of "unwilling" as defined in section 57(1). Consequently, the Court held that a person is "willing" if there is no significant risk that they would fail to exercise appropriate control of their sexual instincts if given the opportunity. Furthermore, the Court determined that when assessing a person's willingness to control their sexual instincts, the Supreme Court must consider the likely effect of the conditions of release on licence. The Court found that the lower courts had erred in their approach to these matters.

In each appeal, the High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of South Australia, and remitted the appellants' applications for release on licence to the primary judge for determination according to law.