R v Hoare

Case [2017] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v HOARE

[2017] SASC 7

Reasons for Decision of The Honourable Justice Hinton

3 February 2017

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

Application by the Attorney-General for an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order. In the alternative, the Attorney-General seeks an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) that the respondent be subject to an extended supervision order.

The respondent did not oppose the making of an order pursuant to s 7 but was opposed to the making of an order pursuant to s 23.

The respondent is currently serving a sentence of imprisonment for the offence of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). He has previously served a term of imprisonment for three counts of aggravated indecent assault.

Held:

1. The respondent is unwilling to control his sexual instincts within the meaning of section 23 of the Criminal Law (Sentencing) Act 1988 (SA).

2.  The respondent is to be detained in custody until further order, such detention to commence after the expiry of the term of imprisonment presently being served.

Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7, s 10; Criminal Law Consolidation Act 1935 (SA) s 56; Child Sex Offenders Registration Act 2006 (SA) s 6, s 13, s 15, s 15A, referred to.
R v Schuster (2016) 125 SASR 388; R v Ainsworth (2008) 100 SASR 238; R v England (2004) 87 SASR 411; R v Hore [2016] SASC 21; R v Kiltie (1986) 41 SASR 52; R v Whyte [2006] SASC 56, considered.

R v HOARE
[2017] SASC 7

Criminal

Hinton J.

Introduction

  1. This is an application by the Attorney-General for the State of South Australia seeking an order, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), that Shaun Ronald Hoare be detained in custody until further order or, alternately, that pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act), Mr Hoare be subject to an extended supervision order.

  2. Mr Hoare is currently serving a sentence of imprisonment for the offence of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1] By virtue of his conviction for this offence and the fact that he remains in prison serving the sentence imposed for that offence, Mr Hoare is a person in relation to whom an application for an order for indefinite detention may…

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Details
AGLC
R v Hoare [2017] SASC 7
Case
[2017] SASC 7
Decision Date

CaseChat Overview and Summary

The case of R v Hoare involves an application by the Attorney-General for an order under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent, Mr Hoare, be detained in custody until further order. Alternatively, the Attorney-General sought an order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) that Mr Hoare be subject to an extended supervision order. Mr Hoare conceded that the jurisdictional facts for the extended supervision order were satisfied and that it was appropriate to order such supervision. The legal issues before the court were whether Mr Hoare was a high-risk offender who posed a significant risk to the safety of the community if released without supervision and whether an order for his indeterminate detention was necessary to protect the community.

The court considered the reports and evidence of two legally qualified medical practitioners, Drs Brereton and Furst, who concluded that Mr Hoare presented a high likelihood of committing a further serious sexual offence. The court accepted the doctors' opinions, finding that Mr Hoare had a sexual attraction to underage girls, poor internal controls, and a tendency to justify sexual contact with them. The court also noted that Mr Hoare's ability to manage his life and relationships, including drug and alcohol use, increased his risk of reoffending. The court concluded that Mr Hoare was unwilling to control his sexual instincts and that an order for his indeterminate detention was necessary to ensure the adequate protection of the community, particularly female children.

The court granted the Attorney-General's application for the indeterminate detention of Mr Hoare pursuant to s 23 of the Sentencing Act, dismissing the application for an extended supervision order under s 7 of the High Risk Offenders Act. The court found that Mr Hoare's distorted thinking had not significantly altered despite treatment, and that his gains were not genuine or sufficiently entrenched. The court was concerned that Mr Hoare had not made significant progress in managing his internal controls and that his engagement in treatment had waned.

The court's final orders were that Mr Hoare be detained in custody until further order under s 23 of the Sentencing Act and that the application for an extended supervision order under s 7 of the High Risk Offenders Act be dismissed. The court emphasized the high risk Mr Hoare posed to the community, particularly female children, and the need for his indeterminate detention to ensure adequate protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In view of Mr Hoare’s attitude to the application made by the Attorney-General under s 7 of the High Risk Offenders Act I do not stay to analyse that Act. Mr Hoare’s attitude amounts to a concession that the jurisdictional facts set out in s 7(4) of the High Risk Offenders Act are satisfied. The discretion vested by that same provision is therefore enlivened. Mr Hoare concedes that, subject to the resolution of the application made pursuant to s 23 of the Sentencing Act, it is appropriate to order that he be subject of an extended supervision order. More than that, he concedes that the content of such order should be as sought by the Attorney-General. That content is set out below.[32][32] At [173].The reports and evidence of the legally qualified medical practitioners As mentioned Dr Brereton and Dr Furst each provided reports under the Sentencing Act and the High Risk Offenders Act.[33] Both doctors gave evidence at the hearing of the applications. [33] Exhibits A1, A2, A3 and A4. Mr Hoare did not challenge either the expertise or the opinions that the Doctors expressed in their reports prepared under the High Risk Offenders Act. No reason exists then to reject those opinions. Accordingly, I accept Dr Brereton’s opinion that:…Mr Hoare presents a high likelihood of committing a further serious sexual offence. His internal controls, those that might prevent him offending, are very poor. He has a sexual attraction to underage girls, a tendency to justify sexual contact with them and little understanding of the harmful effects of sexual offending on the victims. His poor ability to manage his life and relationships (including drug and alcohol use) further increases his risk of offending. While he has not, to date, shown a tendency to plan his offending or seek out opportunities, he has taken the opportunity to offend when it has arisen. In my opinion, the likelihood of him doing so again, if given the opportunity in the future, is high. I also accept Dr Furst’s opinion that:…Mr Hoare is sexually attracted to children and requires little innocent contact with children to form sexual fantasies about them, then progress to masturbation and then proceed to a contact offence. Overall, I consider Mr Hoare to be a high risk of sexual reoffending within 12 months of release if he was not subject to very stringent supervision. In my view, Mr Hoare poses an appreciable risk to the safety of the community if he is released from prison and is not supervised under an extended supervision order. Having regard to the material set out above, and to the opinions of Drs Brereton and Furst, I am satisfied that Mr Hoare is a high risk offender within the meaning of the High Risk Offenders Act and poses an appreciable risk to the safety of the community if released without supervision. I turn to consider the reports and evidence given by Drs Brereton and Furst for the purposes of the Attorney-General’s application under s 23 of the Sentencing Act. Dr Brereton

Decision

Reasons for decision

For these reasons I conclude that an order indeterminately detaining Mr Hoare is apt to ensure the adequate protection of the community, bearing in mind the risk he poses to female children.Conclusion This is a borderline case the resolution of which I have found difficult. In the end I am satisfied that Mr Hoare is unwilling to control his sexual instincts and that an order for his indeterminate detention is apt to ensure the adequate protection of the community, bearing in mind the risk he poses to female children. It is for the reasons set out above that on 30 January 2017 I granted the Attorney-General’s application for the indeterminate detention of Mr Hoare pursuant to s 23 of the Sentencing Act. I dismiss the Attorney-General’s application pursuant to s 7 of the High Risk Offenders Act.

Ratio Decidendi

Legal Principle Established

The final factor referred to was the acts of bestiality. These ceased when Mr Hoare was 15 years old. Counsel for Mr Hoare characterised that offending as aberrant, and its cessation indicative of an ability to change.Consideration That Mr Hoare has a paedophilic disorder is not challenged. That he is capable of exercising control over his sexual instincts is conceded. That he is not predatory in the sense that he does not seek out relationships in order that he may groom a child for the purposes of sexually offending against that child must also be conceded. Further, it may be accepted that his offending is opportunistic, but it is not impulsive. The question is, is he unwilling to control his sexual instincts bearing in mind the statutory definition of unwilling and, if so, is an order for his indeterminate detention apt to ensure the adequate protection of the community, having regard to the risk that Mr Hoare poses to the community. I accept the evidence of Drs Brereton and Furst. That evidence satisfies me that if Mr Hoare were released into the community, without supervision and without any intervention, there is a significant risk that he would, given an opportunity to commit a sexual offence against a female child, fail to exercise appropriate control of his sexual instincts. I accept that he would probably not do so immediately, but I am satisfied that, in time, bearing in mind his poor internal controls and accepting that it is unlikely that his external factors will improve if he is left to his own devices, there is a significant risk that given an opportunity to commit a sexual offence against a female child he would fail to exercise appropriate control of his sexual instincts. I so find. I would articulate the risk Mr Hoare poses as follows; bearing in mind his diagnosis as having a paedophilic disorder that includes an attraction to female children, his history of sexually fantasising about female children, his history of acting upon his distorted thinking, his poor internal controls, and his absence of protective factors which will probably continue, there is a significant risk, I would say very high risk, that given an opportunity to sexually offend against a female child, he will do so. Three main threads run through the various reports prepared in relation to Mr Hoare’s treatment in custody. Those threads are repeated in the reports and the evidence of Drs Furst and Brereton. They are the presence of cognitive distortion, the absence of insight and the absence of protective factors. I am concerned that despite the treatment Mr Hoare has received his distorted pattern of thinking has not significantly altered. I am concerned that the gains Mr Hoare has made are not genuine or sufficiently entrenched. His reference to historic attitudes to suggest that current laws governing age and sex are wrong, or not morally based, is most concerning. I accept that here I am reliant upon the impression of Dr Brereton. However, I note the absence of any qualification made by Mr Hoare to the views expressed, suggesting that he remains of that opinion. I also note that his engagement in the second half of the Sexual Behaviour Clinic waned and that he did not consider that he needed the assistance of facilitators with his deviant thinking. I am not persuaded that he has made significant gains with his internal controls.