R v Hoare - [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

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.
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 be made.[2] Further, his conviction and imprisonment for indecent assault means that he is a high risk offender within the meaning of s 5 of the High Risk Offenders Act. He is then a person in relation to whom an application for an extended supervision order may be made.[3]
[1]    His sentence is due to expire on 31 January 2017.
[2]    Criminal Law (Sentencing) Act 1988 (SA) ss 23(1) and (2a).
[3]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(1).
In support of the applications I received two affidavits from Joseph Nguyen, both sworn 18 August 2016, one filed in support of the s 7 application and the other in support of the s 23 application, an affidavit from Katharine Short, sworn 20 January 2017, and an affidavit from Ryan Mark Harber, sworn 20 January 2017. I also received the following expert reports:
· Report of Dr William Brereton (Exhibit A1) prepared pursuant to a direction made by this Court under s 23(3) of the Sentencing Act;
· Report of Dr William Brereton (Exhibit A2) prepared pursuant to a direction made by this Court under s 7(3) of the High Risk Offenders Act;
· Report of Dr Paul Furst (Exhibit A3) prepared pursuant to a direction made by this Court under s 23(3) of the Sentencing Act;
· Report of Dr Paul Furst (Exhibit A4) prepared pursuant to a direction made by this Court under s 7(3) of the High Risk Offenders Act.
Mr Hoare did not call nor give evidence.
Mr Hoare conceded the application under s 7 of the High Risk Offenders Act. He is not opposed to the Court ordering that he be subject of an extended supervision order. Nonetheless, the Attorney-General pressed for the making of an order pursuant to s 23 of the Sentencing Act. Mr Hoare opposes the application pursuant to s 23. The essential difference between the s 7 and s 23 applications is that the latter provides for incarceration and treatment whilst the former provides for supervision in the community and can include treatment. The question for the Court is, if Mr Hoare is incapable or unwilling to control his sexual instincts, is an order for indeterminate detention apt to ensure the adequate protection of the community, having regard to the risk that he poses. That question is to be answered bearing in mind the order that may be made under s 7 and what may be achieved under such order.
On 30 January 2017 I made an order for the indeterminate detention of Mr Hoare pursuant to s 23 of the Sentencing Act. My reasons for doing so follow.
Mr Hoare’s personal circumstances
Mr Hoare was born in Victoria in May 1985. He has two brothers and two sisters. Whilst he was still very young his family moved to Adelaide. His childhood was generally happy.
Mr Hoare is now 31 years of age. He has two daughters, aged 7 and 8 years old, from a three year relationship that ended in 2010. Both children are in the care of the Minister for Child Protection and have been since not long after Mr Hoare was charged with sexual offences in 2009. Mr Hoare last saw his children when they were aged two and a half and one and a half. The Department has reported concerns of sexual abuse. Those concerns were investigated and dismissed. I pay no regard to them.
Mr Hoare’s parents have been married for now on 38 years. They currently live in the Barossa. His father is 61 and in receipt of a disability support pension, whilst his mother is 66 and receives the pension. Mr Hoare reported a relatively stable family background. Currently Mr Hoare has no contact with his siblings. His parents, however, remain supportive of him. More than that, his parents remain his primary social support network. Mr Hoare told Dr Brereton that his relationship with his parents was good. His father is, however, disgusted by the nature of his offending and has been less forgiving than his mother.
With respect to his education, Mr Hoare changed schools a number of times but appears to have adapted to the changes. His academic work was generally B grade. He required no special education, he is literate, and described his maths as very good. That said, harassment and bullying at his last school caused Mr Hoare to withdraw socially and leave school partway through year 10. Since leaving school he has managed to complete a Certificate III in Stores and Warehousing.
Mr Hoare has not been in gainful employment since 2007. Prior to then he had been sporadically employed largely in semi-skilled labouring positions. His employment prospects are poor.
Mr Hoare has reported that his aimless employment history is the consequence of never forming much in the way of a goal or career plan. He has said he would like to be a “computer software person” and has said that he is good at mechanics or he might be able to test video games. When not working, Mr Hoare spends his time playing video games and “sitting around”. Mr Hoare reported that he has never had many friends.
Mr Hoare has indicated that he first started using illicit drugs at age 14. His drug of choice was cannabis. He has experimented with other drugs. He has reported using cannabis to assist with feelings of depression and anxiety and to help him sleep.
There is no evidence before the Court to suggest that Mr Hoare currently suffers from any mental health issues, although in 2010 he was diagnosed with depression for which he was prescribed medication. Upon being imprisoned in 2011 he ceased taking his medication and appears to have coped ever since.
Mr Hoare’s history of offending
Mr Hoare has come into contact with the authorities on three occasions for sexually related offending. In August 2000 he was cautioned by police for engaging in an act of gross indecency. In March 2011 he was imprisoned for three counts of aggravated indecent assault. In September 2014 he was imprisoned a second time for aggravated indecent assault. In what follows I set out the details of his offending, refer to the remarks made by the sentencing judges and the reports to which they had regard, in addition to reports provided as to treatment undertaken by Mr Hoare whilst in custody.
The July 2000 offending
In July 2000 at age 15, Mr Hoare was formally cautioned after he was reported for indecent behaviour.[4] The Apprehension Report records that a witness saw Mr Hoare’s body going up and down and assumed that he was having sex;[5] however, as the witness was about to retreat, he heard a dog yelp and saw the dog to be directly in front of Mr Hoare. The witness reports that Mr Hoare then continued to masturbate before fixing his clothes and walking off. When questioned by police, Mr Hoare denied that he had been having sex with the dog but admitted that he had masturbated in public.[6] He was cautioned by police in August 2000.
[4]    Exhibit JN3, Pre-sentence report dated 19 January 2011, at 6.
[5]    AP 01/Y01977.
[6]    Exhibit JN6, Offender Risk Needs Analysis-Revises Assessment Report dated 24 June 2011, at 2.
In February 2010 at age 24, Mr Hoare was charged with child pornography offences which were ultimately dismissed. He said that he had purchased a second-hand computer from another that had turned out to be stolen and contained erased child pornography from a previous owner.[7] I disregard the allegations of possessing child pornography.
[7] Exhibit JN5 at 8.
First period of imprisonment
On 2 March 2011,[8] at age 24, Mr Hoare was sentenced to imprisonment for one year and 10 months with a non-parole period of 10 months for three counts of aggravated indecent assault. That sentence and non-parole period both commenced from 27 January 2011. The offences were committed on 30 November 2009. His victim was the daughter of his brother’s partner. She was aged 9 years and 10 months.
[8] Exhibit JN1.
In his sentencing remarks his Honour Judge Brebner summarised the circumstances in which the offending occurred:
Your victim was nine years and 10 months when you committed your crimes. She was the daughter of your brother’s partner. She was staying overnight in your caravan with you and your partner and your infant child. You must have realised that she was very young, even if you did not know precisely how old she was.
You, your victim and your partner watched a movie. It was a hot night and your victim was naked and you were wearing shorts. After the movie was over your partner left the caravan and she returned to find you kissing your victim on the nipples. When you were eventually spoken to by the police you admitted that you had asked your victim if you could lick her breasts because you liked the look of her nipples and you admitted that you had given her a quick kiss on each nipple and you ultimately pleaded guilty to a charge of aggravated indecent assault based on this activity.
Your victim gave evidence that some time later in the evening, and while she was still naked, you picked her up in such a way that her legs were around your waist and that you then proceeded to rub one of your fingers over her buttocks and her vagina.
Your victim then gave evidence that still later in the evening, and after she had gone to bed, you put your hand underneath her boxer shorts and touched her. However, she was unable to say precisely where you touched her.
The jury accepted her evidence and found you guilty of two crimes of aggravated indecent assault accordingly.
Your crimes thus amount to a course of intermittent conduct over a period of hours.
Mr Hoare explained his conduct as being the product of his being heavily intoxicated by cannabis and alcohol which, Judge Brebner accepted, clouded his judgment at all relevant times. The judge considered the offending opportunistic, predatory and a gross breach of trust.
A pre-sentence report dated 19 January 2011 was prepared to assist Judge Brebner.[9] That report is exhibited to the affidavit of Mr Nguyen.
[9] Exhibit JN3.
The report writer records Mr Hoare as describing his relationship with the mother of his children as “terrible” largely because of a lack of sexual interest on her part. At the time the report was prepared, Mr Hoare’s children were aged two and one. They were in the care of the Minister after concerns of child neglect and sexual abuse allegations unrelated to the subject offences. The allegations, according to Mr Hoare, were investigated and dismissed as false.
In describing the offence to the pre-sentence report writer, Mr Hoare made comments to excuse and justify his behaviour. He said that he was intoxicated, that he had asked the victim’s permission, he implied the victim had been provocative, and he appeared to place blame on his partner and her not fulfilling his sexual appetite. His partner’s attitude toward him, in his mind, gave rise to an erroneous sense of entitlement. He was noted as having no sympathy for the victim and feeling victimised himself “for being different”.
Under the heading, “Analysis of Offence”, the report writer records that it was difficult to analyse the circumstances that might have led to the commission of the offence because, in the main, Mr Hoare continued to maintain his innocence and contended that he had been judged on a misrepresentation of the truth. He was, however, considered to be a person with a high sexual drive “exacerbated possibly by the use of alcohol and cannabis and possibly an untreated mental health condition, namely depression and anxiety”.[10]
[10] Exhibit JN3.
I note that by this time Mr Hoare had sought the assistance of Owenia House, but had not had the benefit of completing any program offered as he had missed sessions. I understand that he first engaged with Owenia House at the insistence of the authorities as part of a plan for his eventual reunification with his daughters.
Initially sentencing submissions were made on 27 January 2011. On that occasion Judge Brebner ordered a second pre-sentence report to be prepared by the same report writer after being told by counsel for Mr Hoare that Mr Hoare’s attitude had changed and that he now accepted responsibility for his actions.
Judge Brebner received the second pre-sentence report.[11] Mr Hoare told the report writer that he was ashamed of his actions and was sorry for what he did, but continued to struggle with accepting full responsibility as he was unable to recall the actual events. Mr Hoare said that he had become aware of how intimidated his victim must have been and stated that he took full responsibility for his actions and that he had no one to blame but himself. He said that during the first interview he was unable to discuss the offences as he had difficulty remembering the events that had occurred, due to having been heavily intoxicated at the time of the offending. He identified impulsive behaviour exacerbated by substance use as the factors contributing to his commission of the offence.
[11] Exhibit JN4.
Approximately six months into his sentence an Assessment Report was prepared by the Department for Correctional Services.[12] The report noted:
Mr Hoare noted that he had an unrewarding relationship with his partner during the PSO [period surrounding the offending] and stated that he believed that this was a contributing factor to his offending behaviour. Based on the information available, it does not appear that this is the primary reason as to why he committed the subject offences, nor does it appear that this fact is directly related to his offending behaviour. As such, this should be further explored through his assessment for the Sexual Behaviour Clinic (SBC); however, at this stage, relationships have not been identified as a criminogenic need.
[12] Exhibit JN6 dated 24 June 2011.
The report recommended that Mr Hoare’s suitability for the Sexual Behaviour Clinic be assessed. If he was found unsuitable, it was recommended that Mr Hoare be referred to Owenia House post-release.
Mr Hoare was also identified as having poor problem solving skills and antisocial/pro-criminal attitudes. Unfortunately accompanying this was an absence of protective factors such as employment.
On 15 November 2011 Mr Hoare was assessed for the purposes of determining his suitability to participate in the Sexual Behaviour Clinic.[13] As part of that assessment no indication of a thought, perceptual, anxiety or depressive disorder was detected despite Mr Hoare stating that when he committed the offences for which he was in prison he was experiencing severe anxiety and depression. Mr Hoare was assessed as posing a moderate to high risk of sexual re-offending without treatment. His risk factors were identified as including “his lack of positive social influences, social rejection and loneliness, impulsivity, problem solving, deviant sexual preferences and substance abuse.” He was considered suitable for participation in the Sexual Behaviour Clinic.
[13] Exhibit JN7.
Unfortunately Mr Hoare was unable to be placed in a Sexual Behaviour Clinic group program due to there being insufficient time to complete that program prior to his sentence expiry date. Instead Mr Hoare received individual intervention.
Mr Hoare’s Individual Treatment Summary Report, dated 20 March 2013, reported that he had the benefit of individual intervention to address sexual offending needs from 7 August 2012 to 26 November 2012, during which time he attended seven sessions of approximately one and a half hours duration each.[14] It is noted that this treatment was not equivalent to that required for completion of either the Sexual Behaviour Clinic or the Sexual Behaviour Clinic - me programs.
[14] Exhibit JN8.
The Individual Treatment Summary analysed in detail some of Mr Hoare’s risk factors, the treatment targets addressed and progress made. The risk factors identified included a tendency to use sex, pornography and masturbation to manage negative emotions. Mr Hoare denied any sexual attraction towards children or any sexually deviant preferences. The report writer considered:
It was considered likely that Mr Hoare’s early experiences of parental disinterest and lack of appropriate role models led to a paucity of skills in expressing and managing emotions, as well as the ability to develop relationships with others. There were indications that Mr Hoare was exposed to sexualised behaviour between his parents from an early age. Mr Hoare developed a belief that sexual activities were a large part of intimate relationships and he had little knowledge of the skills required to maintain a healthy adult relationship. He also expressed a belief that he had ‘missed out’ on the early relationship experiences that other people had, and that may have led to feeling depressed, frustrated and lonely.
It is likely that Mr Hoare’s sexual offending occurred in the context of loneliness, a lack of social support, substance use, impulsivity and sexual preoccupation. The victim likely presented as more approachable and less intimidating than managing his relationship difficulties with his current partner, and Mr Hoare lacked adequate self-management strategies to manage his desire for intimacy and heightened sexual arousal in an appropriate way.

The report writer’s clinical opinion and recommendations were:
Mr Hoare will not be on parole due to serving his full sentence in prison, although will be under ANCOR obligations.
If Mr Hoare were to come into contact with the system in the future, it is strongly recommended that he undertake further therapeutic intervention to his sexual offending, with particular focus on exploring sexual deviance.
Mr Hoare served his entire sentence and was released on 26 November 2012.
Second period of imprisonment
Approximately 13 months after being released from prison, now aged 29, Mr Hoare pleaded guilty to one count of aggravated indecent assault. The offence occurred on 1 March 2014. The victim was the six year old daughter of a friend of Mr Hoare.
The sentencing judge, Judge Muscat, described the circumstances of Mr Hoare’s offending as follows:[15]
In relation to your offending on this occasion, you were visiting a neighbour’s house. You had been there from about 2 pm having a few drinks. At around 8 pm that evening, the father of the child found you in his daughter’s bedroom laying on the bed next to his daughter. You were seen to have your hand on the girl’s crotch. Not surprisingly, the girl’s father reacted violently by assaulting you.
[15] Exhibit JN2.
Judge Muscat had the benefit of a report from Richard Balfour, a forensic psychologist, dated 1 September 2014.[16]
[16] Exhibit JN5.
Mr Balfour formed the opinion that Mr Hoare was of low-average intelligence. He reported:
For the last ten years, Mr Hoare has had access to the Internet mainly through a pre-paid Wi-Fi USB sticks (sic). He does not routinely spend most of his day on the Internet. He has viewed Internet pornography. He does not have a history of hoarding pornography.
Mr Hoare does not have a history of socially gravitating towards activities in the community which would bring him into frequent contact with children. For example, he has never worked as a children’s sporting coach, scoutmaster, or volunteer.
Mr Hoare does not have a history of loitering in swimming centres to look at children.
Mr Hoare has never done babysitting.
Mr Hoare has no history of voyeurism, frotteurism, exhibitionism, snow dropping, or up skirting.
He also recorded:
Mr Hoare is devoutly heterosexual. He is sexually attracted to females aged between 20 and 40 years of age. He has no history of homosexual experimentation.
Mr Hoare has age-appropriate sexual fantasies during masturbation. He does not have fantasies which emphasise themes of rape, sadomasochism, submission and dominance, or other types of bizarre paraphilia. I quizzed him as to whether he is sexually attracted to children and has masturbatory fantasies about prepubescent girls. He said that he does not sexually fantasise about female children.
Despite this when Mr Balfour asked Mr Hoare if he was a paedophile, he received the following answer – “Yes. I just like to give women of all ages pleasure, girls included. Get them to orgasm.”
Mr Balfour was of the opinion that:
Mr Hoare possesses some of the traditional static and dynamic criminogenic risk factors which have been identified by researchers as predisposing an individual towards offending behaviour. He did not exhibit evidence of a conduct disorder during his adolescence. He does not socially gravitate towards a predominantly negative peer group. He is prone to boredom. He does not have a formal juvenile offending history. He has a limited adult offending history. He does not suffer from sever polydrug abuse problems. He has a history of weekend cannabis and alcohol abuse. He does not have a history of generalised impulse control problems in the community, and does not engage in reckless, thrill-seeking offending behaviours. I would rate his general criminogenic profile as being in the low range for committing (non-sexual) offences during the next 12 months (i.e. on a scale of low, moderate, and high).
I could not find any clinical evidence to suggest that Mr Hoare suffers from a psychotic illness (break with reality), intellectual disability, major mood disorder, acquired brain injury, or serious personality disorder.
The psychological profile is that of a 29 year old man of low-average intelligence with adequate literacy and numeracy skills. He has barely attained a Year 10 educational standard. He has a fair work ethic, but poor employment history. He has an introverted personality. He has low self-esteem, but a reasonable body image. He is a psychologically and socially inadequate man. Consequently, he has become socially isolative and reclusive. He has the added social stigma of being a convicted child sex offender which has resulted in him becoming socially ostracised. He has poor coping skills. He has a low tolerance of sexual frustration. He is not prone to feeling depressed, or anxious. He has never attempted suicide or engaged in self-mutilating behaviour during times of personal crisis. His primary diagnoses are paedophilia, and binge alcohol and cannabis abuse.
…
After completing his prison sentence, Mr Hoare became increasingly socially dislocated and marginalised due to his inability to secure stable employment because he has few marketable employment skills. He has led a socially isolated and aimless existence in the community. For 13 months prior to committing the current offence, he spent most of his time at home. He has become a very lonely and sexually frustrated man.
Mr Hoare told Mr Balfour that he was not in denial regarding his offending but Mr Balfour formed the view that he had poor insight into the power imbalance between him and the victim’s inability to consent. Regarding the offending, Mr Hoare said to Mr Balfour, “honestly, because I was sexually frustrated. Because I’d been out of prison for 13 months and I had not had one sexual encounter”. Mr Hoare reported having two de facto relationships lasting two and a half years, and six months. The relationship with the mother of his children was a happy one, but she was given an ultimatum by welfare services that she must terminate her relationship with Mr Hoare if she wanted to regain custody of their children.
Mr Hoare told Mr Balfour that when first in prison he had wanted to participate in the Sexual Behaviour Clinic, but he was made to complete the Making Changes program instead. Mr Balfour was critical of the fact that Mr Hoare had not completed the Sexual Behaviour Clinic when first imprisoned in 2011. He said:[17]
For reasons I do not understand, Mr Hoare was directed to participate in the Making Changes Programme and not the Sexual Behaviours Clinic when he was first imprisoned for child sexual offences. Consequently, nothing was done to lower his sexual risk to children in the community prior to him being released into the community. Furthermore, he was not released on parole with a condition of strict community supervision to ensure the safety of children in the community. He completed his 22 month prison sentence and was then released in the community without any rehabilitation for his sexual offending behaviour. I am therefore not surprised that he has reoffended because his last sentence represents a missed opportunity to rehabilitate him. I therefore respectfully suggest to the Court direct he complete the Sexual Behaviours Clinic and Owenia House programme, and upon his release he be strictly supervised by community corrections officers.
[17] Exhibit JN5, Report dated 1 September 2014 by Mr Balfour, at 16.
Unbeknown to Mr Balfour, time prevented Mr Hoare from taking part in programs offered by the Sexual Behaviour Clinic and Mr Hoare had had the benefit of the seven individual sessions, each of approximately one and a half hours duration, to which I have already referred.
Mr Balfour brought his report to a close as follows:
Without the assistance of a supervised, structured rehabilitation programme, I believe that Mr Hoare’s prognosis to cease offending in the near future is poor (i.e., on a scale of poor, fair and good).
Mr Balfour then detailed factors favourable to Mr Hoare’s rehabilitation. In the course of doing so he expressed the opinion that whilst Mr Hoare satisfied the diagnostic criteria for paedophilia, he considered Mr Hoare’s offending against female children as “sexual displacement activity in a psychologically inadequate man”. He considered Mr Hoare in the early stages of his paedophilic disorder, a time when such disorder is most amenable to rehabilitation.
On 2 September 2014, Judge Muscat sentenced Mr Hoare to imprisonment for two years and 11 months with a non-parole period of two years and two months, both commencing on 1 March 2014.
In his sentencing remarks, Judge Muscat said:
Disturbingly, you have similar convictions for indecently assaulting a young girl. In March 2011 you were sentenced to imprisonment for one year and 10 months with a 10 month non-parole period being fixed. That sentence ended on 26 January 2013. I have been told this morning that you served that entire sentence. You were not released on parole by the Parole Board. Mr Katsaras has provided me with a letter from the Parole Board which states that you did not submit an application for release on parole, although you have instructed Mr Katsaras that is not the position. Whilst you were serving your sentence of imprisonment, it appears that you did not receive any sexual offender treatment or counselling. That is of great concern because the court expects prisoners who are convicted of sexual offences, in particular child sexual offences, to be offered the opportunity to receive such treatment whilst serving their sentences to equip them for their eventual release from prison and thereby reduce, hopefully, the risk of further reoffending.
In relation to your offending on this occasion, you were visiting a neighbour’s house. You had been there from about 2 p.m. having a few drinks. At around 8 p.m. that evening, the father of the child found you in his daughter’s bedroom laying on the bed next to his daughter. You were seen to have your hand on the girl’s crotch. Not surprisingly, the girl’s father reacted by violently assaulting you.
…
In my view, you clearly have paedophilic tendencies. I have received and considered a report prepared by Mr Balfour, an experienced forensic psychologist. Your personal circumstances are well detailed in that report. Of great concern to me is your response to Mr Balfour’s question whether you were a paedophile, your answer being: ‘Yes. I just like to give women of all ages pleasure, girls included. Get them to orgasm.’ Your explanation for your offending to Mr Balfour was: ‘Honestly, because I was sexually frustrated because I’d been out of prison for 13 months and I’d had not one sexual encounter.’ That is an absolutely pathetic excuse for sexually interfering with a six-year-old girl.
As I have observed, in my view, you are indeed a paedophile. You seem to be at a loss as to what you need to do to curb your paedophilic tendencies.
I accept that you are remorseful for your offending and determined to seek treatment for your paedophilia. Having said that, if that was your determination, you did nothing about it upon your release from prison on the last occasion.
…
That you were prepared to abuse the daughter of your friend in their own home demonstrates to me just how severe your paedophilic impulses must be and your preparedness to abuse the trust and confidence placed in you to satisfy your perverted sexual desires.
…
I am afraid that your prospects of successful rehabilitation must be considered extremely guarded as you have offended after completing a prison sentence for identical offending.
It is this sentence that is due to expire on 31 January 2017. Like Mr Balfour, Judge Muscat was misinformed about the treatment provided to Mr Hoare during his first period of imprisonment.
Treatment since being imprisoned in March 2014
Mr Hoare participated in the Sexual Behaviour Treatment Program between 18 November 2014 and 30 June 2015. His Post Treatment Report, dated 7 April 2016, reported that Mr Hoare attended 97% of group sessions, receiving approximately 191 group treatment hours and 10 individual treatment hours.[18]
[18] Exhibit JN11.
Prior to receiving the treatment, Mr Hoare reported that he has “no friends at all” and generally spends time on his own. It was recommended that his treatment targets included:
…lack of significant social influences, capacity for relationship stability, emotional identification with children, general social rejection, lack of concern for others, impulsivity, poor problem solving skills, sexual preoccupation, sexual coping, deviant sexual preference and cooperation with supervision.
His involvement in the program started off well. He demonstrated some insight into the function of his offending behaviour. He reported that in the past he would go home and masturbate over what he had done with his victim and fantasise about his victim asking him to touch her and do things to her. He acknowledged that this had provided him with sexual gratification in a negative and unhealthy way.
He displayed understanding of the concept of deviant sexual arousal and was open in admitting that this was a risk factor influencing his sexual offending. However when facilitators met with him on an individual basis to address this issue, he declined their assistance considering it no longer necessary that he work on managing his sexual arousal. He continued to attribute adult characteristics to children regarding sexuality such as considering that a young child could be sexually interested in him and may flirt with him. He appeared to struggle in challenging the view that sex with children was permissible in other cultures and historically.
Mr Hoare did not appear to make progress during the program module that focussed upon empathy. He appeared unmoved when watching videos of the impact of sexual offending on children.
Under the heading, “Formulation”, the Post Treatment Report writer records:
It was hypothesised that Mr Hoare’s sexual offending occurred within the context of social rejection and isolation, substance use, cognitive distortions and deviant sexual arousal.
It was considered likely that Mr Hoare’s early experiences of perceived parental disinterest and a lack of appropriate role models led to a paucity of skills in expressing and managing emotions, as well as the ability to develop relationships with others. Mr Hoare was frequently rejected by others at school and failed in his attempts to lead a productive life by gaining regular employment. Mr Hoare developed a belief that sexual activities were a large part of intimate relationships and he had little knowledge of the skills required to maintain a healthy adult relationship. He also expressed a belief that he had ‘missed out’ on the early relationship experiences that other people had, and that may have led to feeling resentful, depressed, frustrated and lonely. Mr Hoare managed his negative emotional states with marijuana, and later alcohol. Mr Hoare developed a belief that ‘no one gives a shit about me so why should I give a shit about them’ and it was within that context of an unfulfilling intimate relationship with the mother of his children that he committed his first sexual offence.
Upon release from prison it was considered likely that Mr Hoare returned to a similar context of isolation and substance use. He experienced a brief period of relative stability when he moved in with his sister and her partner and made contact with an old female friend, but after all of these relationships disappeared from his life he appeared to increasingly turn to his previous strategies for managing difficult emotions, particularly loneliness. Mr Hoare met his neighbour and it was hypothesised that despite knowing that engaging in a friendship with someone with children was risky for him, he chose to continue this relationship as he felt that he did not have anyone else. When the victim displayed behaviour that Mr Hoare perceived and interpreted as being supportive of sexual advances, he offended. Mr Hoare lacked adequate self-management strategies to manage his desire for intimacy and heightened sexual arousal in an appropriate way.
At the conclusion of the program it was evident that Mr Hoare had limited protective factors that may reduce the likelihood of future offending.
Mr Hoare was required as part of the program to produce a self-management plan. His plan was considered to lack both detail and an understanding of suitable strategies to manage his ongoing risk.
At the conclusion of the program Mr Hoare was assessed as having not progressed on any of his dynamic risk factors with the exception of improvements in impulsive behaviour. As mentioned, he had displayed some insight into the function of his offending and his problematic thinking and core beliefs, but it was not apparent that this insight had translated into behavioural change:
Significant areas of concern remain around Mr Hoare’s deviant sexual arousal, ability to manage his negative emotional states, tendency to minimise the role that substance use plays in his sexual offending and a lack of victim empathy.
Mr Hoare was assessed at the conclusion of the program as remaining at a high risk of sexual offending. He had not gained significant insight and skills into his treatment targets. Uncertainty regarding his unwillingness to control some aspects of his sexual instincts in the community remained. It was considered that he would probably require stringent conditions during a process of reintegration into the community.
Mr Hoare applied to be released on parole, but his application was refused on 16 June 2016. The Parole Report included the observation that not only had Mr Hoare placed his hand over her vagina but at the same time had placed his other hand over her mouth.
The statutory schemes and applicable legal principles
a. Section 23 of the Sentencing Act
Pursuant to s 23(4) of the Sentencing Act this Court may order that a person subject of an application made by the Attorney-General under s 23(2a) of the same Act be detained in custody until further order. As mentioned the Attorney-General may only make an application under s 23(2a) in relation to a person who has been convicted of a relevant offence and is in prison. Section 23(3) conditions the power conferred by s 23(4) upon this Court first directing that at least two legally qualified medical practitioners inquire into the medical condition of a person to whom this section applies and report to the Court on whether the person subject of the application is incapable of controlling, or unwilling to control, his or her sexual instincts. Thereafter ss 23(5) and (5a) govern the exercise of the discretion conferred by s 23(4). They provide:
(5)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)    The reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;
(b)    Any relevant evidence or representations that the person may desire to put to the Court;
(c)    Any report required by the Court under section 25;
(d)    Any other matter that the Court thinks relevant.
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community.[19] Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
[19] R v Schuster (2016) 125 SASR 388 at [97]-[98].

While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.[20]
[20] R v Ainsworth (2008) 100 SASR 238 at [81] (White J, Doyle CJ agreeing).
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order.[21] In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite.[22] He said:[23]
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(footnotes omitted).
[21] R v England (2004) 87 SASR 411 at 423-4 (Bleby J); R v Ainsworth [2008] SASC 67 at [56] (White J).
[22] (2004) 87 SASR 411.
[23] R v England (2004) 87 SASR 411 at 423-4 (Bleby J).
What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23.[24] He said:[25]
… The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
[24] (1986) 41 SASR 52.
[25] R v Kiltie (1986) 41 SASR 52 at 62.
Unwilling is defined in s 23(1) as follows:
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 his or her sexual instincts.
In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “…recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. [26] White J added:[27]
In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.
[26] [2006] SASC 56 at [28].
[27] R vWhyte [2006] SASC 56 at [29].
In R v Schuster the Full Court observed:[28]
…more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
[28] (2016) 125 SASR 388 at [100].
Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:[29]
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
[29] (2016) 125 SASR 388 at [79].
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”.[30] The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:[31]
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[30] R v Schuster (2016) 125 SASR 388 at [80].
[31] Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at 405.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
Lastly, a factor relevant to the exercise of the discretion in this case is Mr Hoare’s consent to the Attorney-General’s application under s 7 of the High Risk Offenders Act. That is to say, if the s 23 application is not granted, it is not simply a matter of Mr Hoare being released into the community on 31 January 2017 without the benefit of supervision or intervention of any kind. He concedes it is appropriate that he be subject of an extended supervision order under the High Risk Offenders Act and all it may entail. Accordingly, it is appropriate in considering the application under s 23 of the Sentencing Act to take into account the alternate means of ensuring the safety of the community and whether it is sufficient without more.
b. Section 7 of the High Risk Offenders Act
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
In his report Dr Brereton outlined Mr Hoare’s background, including his personal and psychosexual history, his involvement with alcohol and drugs, his psychiatric history and his offender history in terms much the same as in the various reports that had been prepared before and to which reference has already been made.
Dr Brereton was of the opinion that Mr Hoare does not have a mental illness or intellectual disability. Mr Hoare denied feeling uncomfortable in the company of adults. He said he can socialise and had no preference for the company of children, although socialising with other people is now harder in light of his offending.
Mr Hoare reported to Dr Brereton that the pornography he has accessed has been heterosexual, involving adult women. He said he has not sought out child pornography or pornography depicting rape or torture. He told Dr Brereton that his fantasies have typically involved adult women, although admitted he has had fantasies involving young girls but said he tries not to dwell on these. Mr Hoare admitted some of these fantasies have involved pre-teen, prepubescent girls aged ten to 13 that he had seen on TV. These fantasies involve mutual touching but not penetrative sex or kidnap, rape and torture. Mr Hoare admitted that these fantasies make him “feel good”. He told Dr Brereton that he does not want to have these fantasies but it is difficult to stop them. Mr Hoare believes he can suppress these thoughts around 75% of the time but he still has erotic dreams of children.
Mr Hoare told Dr Brereton that he tries not to masturbate to thoughts of children. He has masturbated once a day throughout his life, although this is less in prison due to lack of privacy. Mr Hoare said his last fantasy about children was six months previously. When asked directly, Mr Hoare told Dr Brereton that his choice of sexual partner would be an adult woman but he acknowledged he is equally aroused by female children.
Mr Hoare discussed his offending in 2000 when he had been seen in a public area masturbating with a dog. Mr Hoare said he believed he was hidden and exposing himself was not a deliberate part of the offending. Mr Hoare admitted that he had performed a similar act with his dog on a couple of occasions previously but, after being caught, never did it again. He could not explain to Dr Brereton what prompted this behaviour.
With regards to his offending in 2009, Mr Hoare admitted to Dr Brereton that he had been drinking and smoking cannabis. The nine-year-old victim had had a shower and was getting dressed in front of him. He said to her “I like your body” and asked her permission to kiss her nipples, which she granted. Mr Hoare later touched her vagina. He told Dr Brereton that this offending was not planned and he had not fantasised about it previously. After kissing her nipples, Mr Hoare could not see anything wrong with his behaviour as his victim did not seem to mind, and seemed to like it, so he proceeded to touch her vagina. Mr Hoare said that there had been no penetration, but then said it was possible that he penetrated her with his finger. Dr Brereton asked Mr Hoare what prevented him from continuing with the offending, and Mr Hoare stated that by the end of the night, she was not happy so “I didn’t do it anymore”. Mr Hoare knew she wasn’t happy as she was avoiding him.
Dr Brereton asked Mr Hoare how he now views this offending. He told Dr Brereton that he “never got anything from my missus”. On one occasion, he deliberately stopped asking for sex and it took her two months to initiate it. He said “the victim came over to stay and that’s when it happened”. Dr Brereton said that Mr Hoare did not reflect on the offending any more than that.
With respect to the second episode of offending, Mr Hoare told Dr Brereton that he had been drinking all day with the father of the victim. Two days previously Mr Hoare said that he had given the six-year-old victim a piggyback and that she had leaned back and “I had put my hands on her bum to hold her up and she wriggled her bum on my hands”. Mr Hoare said that every time he saw her after this she was wearing no knickers and would position herself so he could see her genitals. On the day of the offending she did the same and Mr Hoare thought “she must want it”. Mr Hoare told Dr Brereton that he sat with her and touched her genitals outside her clothing because “she just sat there… I thought she didn’t mind”. Dr Brereton noted that although Mr Hoare’s account was in the past tense, he gained the impression he still holds the same understanding of the offending. He said nothing to Dr Brereton to indicate his thinking had changed. He made no qualifying remarks and gave no indication that he had been mistaken.
When Dr Brereton asked Mr Hoare what effect his offending had on his victims, Mr Hoare replied “a bad one”. He said they may have problems trusting adults, their grades at school might drop and they might suffer nightmares. Mr Hoare commented to Dr Brereton that at the time his victims seemed to enjoy what he was doing but after he undertook the sex offender treatment he realised that they were “probably frightened and I was in a position of power”. Dr Brereton had the impression that Mr Hoare was not actually convinced by this as his comment appeared glib and rehearsed. He noted that Hoare qualified his statement with the word “probably”.
Dr Brereton asked Mr Hoare questions about the legal age of consent. Mr Hoare told Dr Brereton that the age of consent is 17 and the law was to do with the maturity of a person. Dr Brereton asked Mr Hoare why there might be problems associated with a man having sex with a child. Mr Hoare pointed out that as late as 1890 a man his age could have sex with a 12 year old. Mr Hoare added that women were treated as property then. He had difficulty explaining to Dr Brereton why the law had been changed, but decided that it was because of harm to the victim. Dr Brereton asked Mr Hoare to give examples of the harm, to which he responded physical harm and the victim might isolate themselves.
Dr Brereton asked Mr Hoare to reflect on his risk of re-offending. He said he did not wish to re-offend and would do anything in his power not to. He said that he would attend Owenia House and/or see a psychologist for counselling. Mr Hoare said he did not want to return to prison and did not want to hurt anyone else. Mr Hoare said he would reduce his risk of re-offending in a number of ways. He said he would monitor the company he keeps, such as avoiding children or adults with children. He would also monitor where he goes and not attend places where “kids hang out” although he has never done this in any case. He would also monitor what he drinks and moderate his alcohol use. He would also monitor his thoughts and feelings and see a doctor if he felt depressed.
Dr Brereton asked Mr Hoare about his triggers for offending. Mr Hoare said he must avoid being alone with children while drinking. He also believed his risk increased if he felt isolated and depressed. Mr Hoare said he would combat this by visiting pubs to play poker, getting a job, and playing video games in the company of other people. Mr Hoare said if he was released into the community, that he had plans which revolve around improving his employment prospects by finishing his education and undertaking work-related courses. He said he wanted to prove that he can conduct himself properly.

Dr Brereton considered Mr Hoare’s risk of sexual offending against the background of four areas of functioning being, sexual interests and arousal patterns, thought processes associated with sexual behaviour (particularly distorted patterns of thinking linked to offending), emotional regulation and problem solving and life management skills. Dr Brereton noted:
a. Sexual interests and arousal patterns
Mr Hoare is sexually attracted to adult women and female children, and is attracted to both pre-pubertal and post-pubertal females. Mr Hoare has used fantasies of sex with underage females when masturbating and although he has tried to suppress these thoughts, he has had limited success.
b. Thought processes associated with sexual behaviour
Mr Hoare presents with a worrying pattern of thinking. Dr Brereton suggested that it appeared that Mr Hoare’s cognitive distortions – his distorted patterns of thinking that facilitate offending – have not altered much since his offending. Mr Hoare has continued to see his victims as having behaved in a sexually provocative manner and as having enjoyed the sexual contact with him. Mr Hoare did not appreciate the power imbalance between an adult and a child. He had a poor understanding of the harmful emotional and psychological effects of child sexual abuse on the victims and had limited empathy. He justified sexual contact with children by referencing historical precedent.
c. Emotional regulation
In terms of risk, it was positive that Mr Hoare did not have a mental illness or severe personality disorder and did not display a tendency towards emotional or affective instability. Dr Brereton noted that the assessments by the Sexual Behaviour Clinic identified that Mr Hoare has a tendency towards using sex to manage negative emotions. Here Dr Brereton focused upon the fact that Mr Hoare offended against his victims in a context of being rejected sexually by his partner in the first instance and having had no sexual contact for some months in the second. It was considered that he managed his emotional and sexual feelings by offending against young children, which Dr Brereton suggested was because he could not find an outlet for his feelings with an adult female and so targeted a child instead. Dr Brereton referred to Mr Balfour’s comment that Mr Hoare is psychologically and socially inadequate.
d. Problem solving and life management skills
Mr Hoare, when feeling rejected and/or lonely, has turned to children, by virtue of them being less intimidating and easier to manipulate than adults, in order to satisfy his emotional and sexual needs. He has demonstrated poor coping skills in his tendency to resort to substance abuse, which has a disinhibiting effect and which has raised his risk of offending. Dr Brereton commented that Mr Hoare has demonstrated a poor ability to problem solve and manage his life, as evidenced by his inability to find fulfilling employment or establish functional relationships or friendships, despite wishing to do so.
Conclusions
Dr Brereton noted that it was of particular concern that Mr Hoare had undertaken the Sexual Behaviour Clinic Program but failed to make gains, and had appeared to deteriorate during the course of the program. Ultimately he demonstrated little improvement with his level of risk at the end of the program still considered as high. Dr Brereton was also concerned with the rapidity of Mr Hoare’s offending after he was first released from prison.
Dr Brereton considered that, taking into account the above factors and particularly Mr Hoare’s deviant sexual interests and cognitive distortions, Mr Hoare was a high risk of further sexual offending against children. Although Mr Hoare has not shown a pattern of planned offending, it is his risk of opportunistic offending that is high. Accordingly, it was possible that very stringent restrictions and supervision in the community may be effective in reducing risk.
Dr Brereton concluded:
There is no reason to believe Mr Hoare is incapable of controlling his sexual instincts. However, in light of the discussion in part 5 of this report, I believe Mr Hoare would be at high risk of sexually offending against a female child if he were given the opportunity to do so, especially if, as previously, he were intoxicated. Mr Hoare’s internal controls, those that might prevent him offending if given the opportunity, are poor. He is sexually attracted to children, tends to justify sexual contact with them and fails to understand the harm this causes. 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 conclusion therefore, in my opinion, there is a significant risk that Mr Hoare would fail to exercise appropriate control of his sexual instincts if given an opportunity to commit a relevant offence.
Oral evidence
Dr Brereton gave evidence before me on 19 January 2017. He remained of the opinion that Mr Hoare posed a high risk of re-offending and that there is a significant risk that Mr Hoare would be unwilling to control his sexual instincts within the meaning of the Sentencing Act.
If it were determined that Mr Hoare be released, Dr Brereton considered that he should attend Owenia House and continue treatment. That treatment would focus upon improving his internal controls. Mr Hoare’s poor internal controls were one of Dr Brereton’s main concerns, in particular that Mr Hoare did not fully comprehend why his attraction to children was wrong and the consequences for behaving as he had. Further, Mr Hoare misinterpreted the behaviour of children as exhibiting sexual interest themselves. As the Sexual Behaviour Clinic put it, he attributed adult sexual behaviour and thinking to children. This in particular suggests that his internal controls are very poor. Dr Brereton believed that Mr Hoare’s internal controls did not improve as a result of the treatment that he had received to date.
Dr Brereton believed that one-to-one work with a psychologist would be the best option for Mr Hoare. In this regard Dr Brereton noted that when Mr Hoare was undertaking the Sexual Behaviour Clinic program, which involved primarily group work, he seemed to worsen – he withdrew from the group and his cognitive distortions did not shift as evidenced by his resort to historical attitudes to justify some of his behaviour. Dr Brereton surmised that perhaps Mr Hoare had learned of this from someone in the group and taken on the dysfunctional attitudes of his peers as opposed to benefiting from the therapeutic input of his instructors. Dr Brereton admitted that this was speculation, but because the group work had not had much benefit in the past, the first consideration in any event should be one-to-one therapy tailored to Mr Hoare’s specific cognitive distortions. Such therapy would involve challenging those cognitive distortions, or deviant thinking, educating Mr Hoare as to the consequences of his offending, assist him to manage his own risks, and equip him with techniques to manage his emotions and thinking.
Dr Brereton added that the success of cognitive behavioural therapy hinged on Mr Hoare learning to identify unhelpful thoughts and then deal with those in a constructive way rather than acting upon them. This would involve making sure that Mr Hoare understands the kinds of mood likely to precipitate his offending and the mindsets likely to put him at a higher risk, so that he may monitor himself effectively.
Dr Brereton did not believe it would be possible for Mr Hoare to change his cognitive distortions as they seemed entrenched and had not shifted so far. He suggested it would be a matter of trying to alter his cognitive distortions, and work with him so that he can better manage his own risk. It would be a matter of trying to bolster his internal inhibitions to offending.
Dr Brereton noted that Mr Hoare’s external factors would be monitored by ANCOR[34] and, ideally, would also be the subject of supervision by the Department for Correctional Services. In addition he considered that Mr Hoare should be subject to conditions relating to the consumption of alcohol and drugs. In this regard, alcohol had been a factor contributing to Mr Hoare’s offending in that it had a disinhibiting affect upon him. Other external factors to be controlled, included monitoring where he lives, who he lives with, his interaction with children (of which there should be none) and his attendance at locations where children may be expected to be. Further, Dr Brereton considered that Mr Hoare would benefit from mentorship or social support to help him establish social links. Much of Mr Hoare’s risk lies in being aimless, socially isolated and not having appropriate social contacts. Dr Brereton considered this could be done through appropriate volunteer work, obviously not involving children.
[34] Australian National Child Offender Register.
Dr Brereton also considered that it would be worth Mr Hoare being subject to psychiatric review. Dr Brereton considered that there would be options for Mr Hoare that could be helpful, such as prescribing him medication that assists in avoiding a pattern of ruminating thought. In this regard Mr Hoare has a tendency to be preoccupied with sexual matters and medication could help him to direct his thoughts elsewhere.
Dr Brereton suggested that it would also be worth considering whether Mr Hoare would be suitable for an antilibidinal medication. He noted, however, the severe side effects of such drugs, particularly if used for a lengthy period of time, and thought prescription of an antilibidinal should be considered down the track when other options have been exhausted.
If Mr Hoare were detained in custody until further order, all external factors would be controlled by his removal from society. Dr Brereton considered that Mr Hoare could then undertake the sex offender treatment program a second time or look at the option of one-to-one treatment in custody. Dr Brereton said:
I think, on balance, it is probably worth him having further one-to-one therapy while in prison to see if some headway can be made with those internal factors first. That isn't to say that I think it's unreasonable for him to be in the community surrounded by external controls while doing further sex offender work, I don't think that's unreasonable, but my preference would be for him to complete the individual work in prison first.
In cross-examination it was suggested to Dr Brereton that Mr Hoare told Dr Brereton that he had not masturbated to thoughts of children since he commenced the Sexual Behaviour Clinic and had made a conscious decision not to. Dr Brereton denied that he said this. Dr Brereton told the Court that Mr Hoare had told him that he had masturbated to fantasies of children as recently as six months ago. Dr Brereton gained the impression from Mr Hoare that masturbating to fantasies of children remained a continuing issue, particularly as he continued to describe his offending in a way indicative of continued comfort with thinking about children in this way.
Dr Brereton noted that Mr Hoare’s comment to him regarding the use of historical attitudes constituted an argument that current rules do not reflect morals, suggesting that Mr Hoare considered current laws to be wrong. Dr Brereton reiterated that Mr Hoare has a very poor understanding of the harmful emotional and psychological effects sexual offending has upon victims.
Dr Brereton considered that Mr Hoare’s risk of offending was linked to his consumption of alcohol, but was also dependent upon other factors, including whether he was fulfilled in other ways, was isolated, disaffected and so on.
Mr Katsaras took Dr Brereton to the conditions contained in the draft extended supervision order that had been provided to the Court by the Attorney-General. Dr Brereton agreed that it would be possible that Mr Hoare would exercise appropriate control if he was in the community subject to those conditions and not commit an offence.
Dr Furst
Dr Furst summarised much of Mr Hoare’s background largely in the same terms as described above.
Mr Hoare explained to Dr Furst that when he was about 14 years of age he began to masturbate and have sexual interactions with the family dog. He reported to Dr Furst that this behaviour occurred on approximately a monthly basis, although there were periods when he went two to three months without engaging in this behaviour. He reported this only occurred when he was home alone and hidden from others. He denied engaging in sexual behaviour with other animals or objects, other than a mattress with a hole in it. When he was caught at age 15 masturbating with a dog in public he said this was very embarrassing which was why he stopped engaging in such behaviour. He did not receive any counselling and said that his parents would not talk to him about it and his siblings did not know about it.
Mr Hoare described his history of offending to Dr Furst. I note that much of what Mr Hoare reported to Dr Furst he also described to Dr Brereton which I will not repeat. He added that at the time of the first offending he was not having sex with his partner and had begun to feel depressed thinking that he was worthless and that she did not want him. He said that he smoked cannabis all day and drunk alcohol most of the evening. Mr Hoare admitted to Dr Furst that he had asked to kiss the victim’s nipples as they were puffy as though they were erect. When Dr Furst questioned Mr Hoare about whether it was possible for a nine year old to have erect nipples, he stated, “I don’t know, all I know is they looked erect” and added, “I wasn’t thinking”. Dr Furst asked Mr Hoare whether it was important that he had asked to kiss her nipples. Mr Hoare replied “Yeah, I asked her permission” and said that if he had not she “would have freaked out more than she did”. When asked whether she was old enough to make that decision, he stated “I’m honestly not sure, I’d say no”.
Mr Hoare admitted that he did not ask her permission on the occasion that he touched her vagina and said he “just did it”. The girl then when to bed and while she was in bed he “touched her a second time on the vagina”. He reported that on this occasion she “freaked out” and sat up in bed but did not yell. Mr Hoare said to the victim “I was checking for another spider”. He reported to Dr Furst that early in the evening he had seen a spider crawling up her thigh and that he had brushed it off. The victim later told her mother who informed the police. He said that this process took about a month and during that time he did not do anything and “didn’t even think about it”. Despite his partner having seen him kiss the victim on the nipples, Mr Hoare said that she did not say anything to him and did not bring the subject up. Dr Furst indicated to Mr Hoare that he found this very hard to believe. Dr Furst noted that Mr Hoare sat stony-faced and stated “that’s what happened”.
Dr Furst discussed the second episode of offending with Mr Hoare. Mr Hoare told Dr Furst that he formed a friendship with the victim’s father. They drank together on a daily basis, drinking a five litre cask of wine between them. After a couple of weeks his friend’s children would come over to visit. He said that one day the victim caught him looking up her shorts. >From that point she stopped wearing knickers. Mr Hoare said that “I didn’t know what to think”. A month or so later she asked him for a piggyback ride, which he agreed to do. Mr Hoare said that she was hanging off his neck, she was choking him, he put his hands up and cupped her buttocks and he claimed that she squirmed in order to “get my hands to touch her or something, I don’t know”.
Mr Hoare told Dr Furst that about a week after the piggyback ride he was sitting at his friend’s house watching a children’s movie. He reported that she sat down beside him and he put his arm around her shoulder and “proceeded to offend against her”. Mr Hoare said that his friend was sitting in the lounge room drinking with another friend. They were playing video games so Mr Hoare went into the child’s bedroom to watch a movie. After an hour or so the victim’s father came into the room and found him offending against his daughter.
Mr Hoare told Dr Furst that “I think she must have wanted it” and when asked what gave him this impression, he said “just everything she had done prior to that”. He considered she had deliberately not worn knickers and had deliberately positioned herself so that he could see up her shorts. Further, whenever she wore a dress she would flash her knickers at him. He also referred to her behaviour when he gave her a piggyback ride. When asked whether he was suggesting that there had been a build-up of sexual tension between the two of them, Mr Hoare replied “you could say that, yes. That was what was happening.” Mr Hoare admitted to Dr Furst that he had fantasised about the victim and about how he would like to touch her and make her “feel good” and to also have her touch him. He stated “that’s all there was to it”.
Dr Furst asked Mr Hoare what he had learnt from completing the Sexual Behaviour Clinic. He stated he had learnt how to manage his thoughts, by which he meant “negative thinking, how to stop negative thinking.” He also stated “I’ve got a fair bit of insight into what my victim would have felt at the time and afterwards”. It had also taught him to “steer clear of dangerous situations”. Mr Hoare told Dr Furst that he wanted to prove that he could change and that he would be willing to be on an extended supervision order for the full five years if this was needed to prove that he was not a threat to the community.
Mr Hoare told Dr Furst that he had not been offered the opportunity to attend a medical consultation in order to explore biological treatments to reduce sexual drive. He said that he was definitely interested in attending such consult.
Dr Furst considered that Mr Hoare’s first episode of sexual offending was not an impulsive act, given that it occurred over a protracted period of time and consisted of multiple acts and, on his own self-report, involved what Dr Furst considered was a preoccupation with the victim. Dr Furst similarly did not consider that the second episode of offending in 2014 was impulsive. He considered that his behaviour in the month leading up to the offence was not mere coincidence or impulsive, but him developing a relationship with the victim and initiating interactions and contact in order to provide him with sexual gratification and content for his masturbatory fantasies. Mr Hoare had been engaged in peeping up her shorts for a month, had some previous contact with her and had been masturbating about his behaviour.
Dr Furst found it concerning that Mr Hoare had not reported to Mr Balfour his previous acts of bestiality during his teenage years. Nor did he inform Mr Balfour that he had undergone short term intensive one-to-one psychological therapy. Dr Furst surmised that Mr Hoare had misled Mr Balfour. This ultimately extended to the sentencing remarks of Judge Muscat.
Dr Furst could find no evidence that Mr Hoare suffered from any mental disorder, including major depression, or any form of anxiety disorder. He was of the opinion that Mr Hoare satisfied the diagnostic criteria for paedophilic disorder, non-exclusive type, in that he was sexually attracted to females but has had a period of greater than six months of recurrent intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child and has acted upon those sexual urges. His paedophilic disorder included the specifier of “non-exclusive type” because he was not only attracted to children but also to adult women.
In Dr Furst’s view, Mr Hoare has very limited insight into his condition. While at times he will admit that he is sexually attracted to pre-pubertal children, at other times he will deny that this is so, claiming that his offending was opportunistic, impulsive and due to unmet sexual needs.

Dr Furst assessed Mr Hoare’s risk of sexual re-offending using a number of research based risk factors from five broad areas of concern, namely his sexual violence history, psychological adjustment, mental disorder (including sexual deviance), social adjustment and manageability.
a. Sexual violence history
Dr Furst noted Mr Hoare’s previous charges of sexual offending and their nature. With respect to his second victim, Mr Hoare had established a relationship with the victim and her father. He used this relationship with the victim and her father in order to fuel his masturbatory fantasies.
b. Psychological adjustment
Dr Furst noted that Mr Hoare’s treatment reports indicate that he has made statements suggesting that the victim of his second episode of offending did not suffer any physical injuries and would have been more upset by her father assaulting him than indecently assaulting her. Mr Hoare had also expressed attitudes that support or condone sexual violence, in that he had suggested that both victims did things to encourage him or lead him on, and on one occasion suggested that the victim may have been confused by the incident as she would have enjoyed the attention. Dr Furst noted that Mr Hoare appears to have little awareness of his obvious attraction to pre-pubertal children or was certainly masking it. He considered Mr Hoare to experience difficulty in dealing with stress and with both intimate and non-intimate relationships.
c. Mental disorder
Dr Furst considered Mr Hoare to have a sexual deviance. He noted that Mr Hoare had clearly identified having sexual fantasies about the victim and masturbating to these fantasies before proceeding to a contact offence. He had subsequently denied having a sexual attraction to children.
d. Social adjustment
Apart from the difficulties Mr Hoare has reported in intimate relationships, Dr Furst noted that it appeared that he also had significant problems with non-intimate relationships. He appears to not have any friends or social supports other than his mother. He has reported being socially isolated even to the point where he has difficulty associating with fellow offenders in therapeutic groups. In this regard it was noted that Mr Hoare has an entrenched pattern of using video games in order to isolate himself and occupy his time.
Dr Furst also noted Mr Hoare’s poor work history, suggesting that he is not at all motivated to work but has been relatively happy to pursue a lifestyle that involved smoking cannabis and playing video games. Dr Furst noted that Mr Hoare suggested to Mr Balfour that he intended or hoped to pursue a career in the information technology area. In Dr Furst’s view this was quite concerning because it suggests that he had little insight into the risks associated with him pursuing a career in the information technology industry when he has a history of sexual offending.
d. Manageability
Treatment of Mr Hoare to date has not had the desired results. Despite the treatment received during his first period of imprisonment, he did not pursue outpatient treatment with Owenia House until after he was arrested for sexually offending a second time. During Mr Hoare’s second period of imprisonment he completed the Sexual Behaviour Clinic program and had the benefit of many hours of treatment, however, he continued to express attitudes that condone his behaviour, minimise the effect on the victim and show little insight. Dr Furst also noted that it was recorded that Mr Hoare did not fully engage in the program, particularly in the latter half. This was concerning to Dr Furst. Although it could reflect waning enthusiasm or motivation, it was concerning because the latter half of the program was more focused on sexual offending and its impact upon victims.
Dr Furst was also concerned that after being released from prison, and whilst subject to monitoring by ANCOR Mr Hoare had developed and maintained a relationship with a child.
Conclusions
Dr Furst considered that Mr Hoare was sexually attracted to children. He required little innocent contact with children to form sexual fantasies about then which progressed to masturbation and then to a contact offence. Dr Furst concluded:
Having considered all of the above, it is in my view that there is a significant risk that Mr Hoare would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. Therefore, I believe that he could be considered unwilling to control his sexual instincts as defined in Section 23 of the Criminal Law (Sentencing) Act 1988.
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 would benefit from treatment with antilibidinal medication to reduce his sexual drive and a prolonged period of further psychological therapy to address his sexual deviancy and sexual offending behaviours, self-awareness, problems with coping, problems with relationships and attitudes. Given his attitudes as expressed to me, I believe that he would essentially require supervision that required him to be under electronic monitoring within his accommodation, to have no contact whatsoever with any child under the age of 18 years, and for him to be mandated to attend psychological and psychiatric treatment to address his sexual offending. He would also require a comprehensive package of psychosocial supports in order to address his substance use and ensure that he is productively engaged in the community with a view to obtaining employment. In my view, any community based supervision that did not include home detention would be a high risk scenario.
Oral evidence
Before the Court Dr Furst indicated that he remained of the opinions as expressed in his report. In assessing Mr Hoare as being at a high risk of re-offending, Dr Furst took into account Mr Hoare’s previous sexual contact offences and his sexual interest in pre-pubertal children. The research literature suggests, he said, that anyone who has had contact offences in the past is at least a moderate-high to high risk of re-offending. Dr Furst was also particularly concerned about Mr Hoare minimising his offending and his thinking that the victim’s father would have upset the victim more by attacking Mr Hoare than he had in offending against her. The other area of particular concern to Dr Furst was Mr Hoare’s expression of the victim’s attitude as condoning his offending.
Dr Furst was of the opinion that there were outstanding treatment targets that Mr Hoare should attend to. The first is Mr Hoare’s sexual attitude towards children, which could be treated either in the community or in custody. In addition his heightened sexual drive needed to be addressed. In this regard, Dr Furst indicated that Mr Hoare had indicated a willingness to consider medication to reduce his sexual drive.
Dr Furst considered that if Mr Hoare were released, his supervision would need be very strict. Mr Hoare should not have any contact with any children at all until further treatment had been concluded and evaluated. Dr Furst considered it very concerning that Mr Hoare offended after his first term of imprisonment, even with his strict ANCOR reporting conditions. This suggests that supervision in the past at least of the ANCOR kind had not been effective.
Counsel for the Attorney-General advised of an intention on the part of the Department for Correctional Services to create and implement an individual treatment program tailored to Mr Hoare’s needs were he to be detained further. Dr Furst considered that such program would need to investigate Mr Hoare’s sexual fantasies and deviancy, the intention being to educate him as to his behaviour in order that, him accepting it, he may then have a platform from which to move forward in terms of recognising triggers and implementing techniques to manage his behaviour. Part of this would also involve dealing with Mr Hoare’s consideration that the victim’s attitude condoned his conduct. Further, the external factors that create the environment in which he explores his deviancy would also be addressed.
In cross-examination Dr Furst indicated that if Mr Hoare remained in custody he could be seen as part of Dr Furst’s clinic within a short space of time. Possible medications could then be discussed and explored. Some may take as long as three months to reach a level where they were of assistance to Mr Hoare in reducing his sexual drive. However, it is to be noted that a reduction in sexual drive did not necessarily mean a reduction in deviant fantasising.
Dr Furst agreed with the proposition that Mr Hoare was capable of controlling his sexual instincts as was evident in the passage of time between his offending, including between 2000 and 2009, but he remained of the view that Mr Hoare was unwilling to control his sexual instincts within the meaning of s 23 of the Sentencing Act.
Both Dr Furst and Dr Brereton were cross-examined on their interchange with Mr Hoare regarding his attitude toward his offending in 2013 and his victim. The intention was to gain a concession that in revealing his thinking Mr Hoare was relaying what he thought as at the time of his offending and not his current thinking. Both Doctors gave evidence that they gained the impression that he was conveying his current thinking, although Dr Furst did concede it was possible that Mr Hoare was relaying his historic thinking. Dr Furst also conceded that Mr Hoare had gained some insight into his offending. The following interchange occurred toward the end of Dr Furst’s evidence:
Q.Given that he has now had treatment from the Sexual Behaviour Clinic and some insight into his offending and given he's expressed to you and others his desire not to reoffend, is it possible that if he was given the opportunity to commit a relevant offence and he was not intoxicated, is it possible that he would exercise appropriate control of his sexual instincts.
A.If he was not intoxicated, yes, it's possible that he may not commit an offence if he had the opportunity to do so.
Q. Could you express an opinion as to the likelihood.
A.I think that he's still relatively likely to commit an offence if he has enough contact with a child. I don't think it's likely to happen on the first contact with a child, especially if he's not intoxicated. I think it's really about his amount of exposure, it also depends on what his thinking processes are at that time and that's where the alcohol very much comes in. So I would agree that intoxication by alcohol would reduce his inhibitions and he's more likely to act upon things if he's intoxicated. So I think the alcohol is important but it's not the only thing.
Lastly, counsel for Mr Hoare put to Dr Furst the draft s 7 order provided by the Attorney-General to the Court and asked whether, if subject to the conditions contained in the order, it was, likely that given an opportunity to offend Mr Hoare would control his sexual instincts. Dr Furst answered:
I think that that question's difficult to answer in one way. I think the - if he was subject to these conditions, they're very stringent and I think they would substantially reduce the risk of him offending. A lot of that is by restricting his movement, his contact, his ability to interact with children and also obviously his use of alcohol. So in many ways the effect of these conditions would be to restrict all of those things that may put him in contact with children often enough and therefore if he did come into contact with a child whilst complying with those conditions, because it would be a less frequent thing, he would be more likely to refrain, I think. If that makes sense.
Two additional affidavits
The Court received an affidavit from Katharine Short, Manager of the Rehabilitation Programs Branch, a unit of the Department for Correctional Services. The Rehabilitation Programs Branch, along with the Sentence Management Unit, is responsible for the assessment of sexual and violent offenders serving a term of imprisonment for the purposes of determining their suitability for rehabilitative intervention.
There are a range of rehabilitation programs available to prisoners once they are assessed as suitable, including group-based intervention, one to one intervention, or a combination of both. Clinicians within the Rehabilitation Programs Branch are responsible for administering and assessing the progress of participants in the programs.
Mr Hoare has undergone the intervention programs to which reference has already been made in these reasons, namely:
·An individual one on one intervention program consisting of seven sessions of approximately one and a half hours duration between 7 August 2012 and 26 November 2012.
·The Sexual Behaviour Clinic Program at Mount Gambier Prison consisting of 191 group hours and 10 individual treatment hours between 18 November 2014 and 30 June 2015.
Ms Short deposed that should Mr Hoare be held in custody pursuant to s 23 of the Sentencing Act, he would be reassessed to identify treatment targets and what intervention could be provided. That re-assessment would focus on the recommendations of the clinicians who have treated Mr Hoare to date, the opinions of Drs Brereton and Furst and the willingness of Mr Hoare to meaningfully engage with any intervention. Ms Short states that it could take six months to formulate and put in place an appropriate, tailored intervention pathway for Mr Hoare.
Ms Short suggested it would be likely that Mr Hoare would initially be provided with intervention on a one on one basis to consolidate and reinforce prior learning. The scope and duration of this intervention would depend on treatment targets identified and Mr Hoare’s willingness, insight and progress. At the end of that intervention, Mr Hoare would be reassessed and further recommendations would be made regarding outstanding treatment targets and possible future treatment options.
Mr Ryan Mark Harber is the Regional Director, Community Corrections Southern, Statewide Operations, Department for Correctional Services. He is responsible for the oversight and management of the Intensive Compliance Unit which is located at Edwardstown. The unit manages the compliance of electronically monitored offenders across South Australia. So doing the unit compliments the work of case management staff within Community Corrections to ensure offenders comply with the conditions of orders governing their liberty in the community.
The unit is comprised of two operational arms, being the Monitoring Centre, that manages alerts generated by electronic monitoring devices, and the Compliance Team, that manages the fitting and removal of equipment, home visits, compliance checks and breath and urine analysis. The Department uses both Global Positioning System (GPS) and Radio Frequency based equipment to electronically monitor individuals. In Mr Harber’s experience, electronic monitoring is most effective where home detention conditions are also concurrently granted to ensure that the individual is subject to additional oversight by a Community Corrections Officer.
Each individual on the program is allocated an individual GPS monitoring bracelet with an individual identifying serial number which is worn on the ankle. Each minute the bracelet receives a GPS signal from satellites that determine the individual’s location. The GPS transmitter from the bracelet then sends the individual’s compliance data via cellular mobile phone signal to the unit monitoring centre. The data is plotted onto a mapping system to show the position of the device. It is possible to determine the location of the device at a specific time.
Monitoring a GPS system can be done via passive, hybrid or active monitoring. A passive system collects data to enable a retrospective review of an individual’s movements. An active system relies on a dedicated officer actively watching all movements of an individual in real time and providing an immediate response to any deviations. In a hybrid model, real time alerts are acted upon in accordance with risk. Mr Harber deposed that the Department relies upon a hybrid monitoring system, which enables them to:
·Receive alerts when an offender triggers an alert by breaking curfew, interfering with equipment or entering or exiting an inclusion or exclusion zone.
·Actively track specific extreme risk individuals in exceptional circumstances only.
·Retrospectively review data of an offender’s movements if required.
The GPS monitoring system allows the Department to set inclusion zones which are used to monitor movements of an individual. If the individual is to leave an inclusion zone without approval, or to enter an exclusion zone without approval, an alert will be received by the unit monitoring centre. The Department would respond to this either with a phone call to the individual, a visit by a Compliance Officer, or, if urgent attendance is required, by the attendance of police.
Submissions
Counsel for the Attorney-General submitted that Mr Hoare was unwilling to control his sexual instincts. He identified the following aspects of Mr Hoare’s conduct and thinking as being of concern:
·      Deviant sexual arousal and sexual preoccupation;
·      Ability to manage his negative emotional states;
·      Tendency to minimise the role that substance use plays in his sexual offending;
·      Poor problem solving;
·      Impulsivity;
·      Lack of victim empathy and concern for others;
·      Limited protective factors reducing the likelihood of re-offending;
·      Lack of significant insight and skills to address key risk factors.
Counsel submitted that the Court should not countenance Mr Hoare’s release into the community unless and until he had successfully undertaken the recommended treatment and intervention.
Counsel for Mr Hoare referred the Court to R v Hore,[35] where Nicholson J said that making an order under s 23 is an exceptional order and it is only to be made where it is really required to protect the public, and it should be made sparingly. I accept this.
[35] [2016] SASC 21 at [37]-[38].
Counsel for Mr Hoare referred to a number of factors to be taken into consideration in weighing the discretion. The first was the relative youth of Mr Hoare. He is only 31 years of age. The second was his limited offender history. Here counsel conceded that Mr Hoare’s previous sexual offending was serious but contended that on the scale of seriousness they were not the most grave. Third, counsel referred to Mr Hoare only having limited treatment before his second episode of offending. As indicated Mr Hoare has now completed the intensive specialised Sexual Behaviour Clinic program. Counsel referred me to the post-treatment report of the Sexual Behaviour Clinic dated 7 April 2016 where the report writer noted that:
This situation is suggestive of a need for stringent conditions throughout the process of reintegration rather than consideration given to further incarceration via Section 23.
Fourthly, given that Mr Hoare concedes the order for supervision under s 7, counsel contended that Mr Hoare’s release under strict conditions would adequately manage his risk of re-offending. He referred to the evidence of Drs Brereton and Furst that treatment in the community under tight conditions could be effective.
Fifthly, counsel said that Mr Hoare was emphatic that the experience of his second period of imprisonment had been salutary. I was told that he has resolved not to get himself into a situation where he will offend again.
Sixthly, counsel noted that Mr Hoare’s offending occurred when he was intoxicated and disinhibited. Disinhibition due to drink or drugs would be prevented by the imposition of conditions, testing and supervision. Mr Hoare is not an alcoholic and there was no suggestion that he had a dependence on alcohol.

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.
It is also the case that Mr Hoare continues not to appreciate the power imbalance between an adult and a child, has a poor understanding of the harm sustained by victims of sexual abuse, and has limited empathy for victims. In short, he does not yet comprehend fully why offending against children is wrong.
There are also concerns that Mr Hoare has learnt to say what he thinks those treating him want to hear. For example, Dr Brereton’s opinion that when Mr Hoare said that his victims were “probably frightened and I was in a position of power”, he did so without any indication of conviction, parroting what he had been told in a glib and rehearsed manner. Parroting was also a concern of Dr Furst.
I also am concerned by Dr Furst’s opinion that Mr Hoare had not reported to Mr Balfour his previous acts of bestiality during his teenage years. Nor did he inform Mr Balfour that he had undergone short term intensive one-to-one psychological therapy. Nor did Mr Hoare tell Mr Balfour that he had sexual fantasises about female children. One wonders what Mr Balfour’s opinion might have been had Mr Hoare been full and frank in his disclosures. I cannot help but think that Mr Hoare has been less than genuine and continues to be so.
Treatment requires acceptance by the individual of their distorted pattern of thinking and insight into its harmful consequences before that person can begin to develop and invest in managing the risk they pose of acting upon their distorted thinking. To date, as mentioned, little headway has been made with Mr Hoare. Dr Brereton considered that his cognitive distortions seemed very entrenched. I repeat, it is particularly concerning that Mr Hoare chose not to engage fully in the latter stages of the Sexual Behaviour Clinic program.
I am also concerned that Mr Hoare reported masturbating to fantasies of children within six months of Dr Brereton interviewing him in November 2016. Again I accept that the evidence in this regard is dependent upon Dr Brereton’s impression as to timing, however, as Dr Brereton made clear, this interview occurred at a stage when Mr Hoare had completed the Sexual Behaviour Clinic program and that, if he were talking of something that had not occurred recently, it would be reasonable to expect, in the light of his having undertaken the program, that he would follow his disclosure with some sort of qualification reflecting change. No such qualification was forthcoming.
I turn to external factors.
The Attorney-General provided draft minutes of order for the purposes of s 7 of the High Risk Offenders Act. Those draft minutes contained the following conditions:
The Court makes the following directions and orders:
The Court orders that the respondent be subject to an extended supervision order for a period of five years pursuant to ss 7(4) and 12 of the Criminal Law (High Risk Offenders) Act 2015:
The Court orders that the following conditions apply in relation to the extended supervision order pursuant to ss 10(1)(a)-(e) and 10(2) of the Criminal Law (High Risk Offenders) Act 2015:
2.1     the Respondent will not commit any offence;
2.2     the Respondent will not possess a firearm or ammunition or any part of a firearm;
2.3     the Respondent will not possess an offensive weapon;
2.4the Respondent will be under the supervision of a Community Corrections Officer and will obey the reasonable directions of that officer;
2.5the Respondent will submit to tests (including tests without notice) for gunshot residue as required by his Community Corrections Officer;
2.6the Respondent will report to his Community Corrections Officer at the time of his release from custody and provide his address and contact details;
2.7the Respondent will not change his place of residence without the prior written permission of his Community Corrections Officer;
2.8the Respondent will attend for interviews as and when required by his Community Corrections Officer;
2.9the Respondent will report as and when required or directed by his Community corrections Officer;
2.10the Respondent will not depart or attempt to depart from the State of South Australia without obtaining the written approval of his Community Corrections Officer at least 7 days prior to travel;
2.11   the Respondent will not consume alcohol;
2.12the Respondent will submit to such tests (including tests without notice) for alcohol use as required by his Community Corrections Officer;
2.13the Respondent will not, other than in strict accordance with the directions given to him by a legally qualified medical practitioner, use, possess or administer any drug which cannot be legally obtained without prescription from a legally qualified medical practitioner unless the Respondent has a prescription form a legally qualified medical practitioner;
2.14the Respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
2.15the Respondent will submit to urine testing (including testing without notice) as directed by his Community Corrections Officer;
2.16the Respondent will attend, undertake and complete counselling, sexual offender treatment and psychiatric or psychological assessment and intervention at the direction of his Community Corrections Officer;
2.17the Respondent will wear an electronic monitoring device, to be fitted prior to being discharged from custody;
2.18the Respondent will not have contact with his own children except in accordance with any Youth Court orders;
2.19the Respondent will not contact, attempt to contact or associate in any way whether directly or indirectly, with any person under the age of eighteen (18) years whether or not that person is in the company of another adult and whether or not that association or communication is in person or written correspondence unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present;
2.20the Respondent will not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other facilities for children;
2.21the Respondent will not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground or place at which children are regularly present;
2.22the Respondent will declare and produce to his Community Corrections Officer any computer, tablet, mobile phone, photographic equipment or other electronic equipment that he purchases, loans or which otherwise comes into his possession within 48 hours of it coming into his possession; and
2.23in relation to any item declared in accordance with 2.22, if directed to do so by his Community Corrections Officer the Respondent will provide the equipment to his Community Corrections Officer for the purpose of having the equipment analysed to ensure that it is not being used by the Respondent to associate or communicate with children and/or produce, possess or view child exploitation material.
Further, if released, Mr Hoare would be a “registrable repeat offender” under the Child Sex Offenders Registration Act 2006 (SA) (CSORA). Upon release, Mr Hoare will be required to report personal details to the Commissioner of Police under s 13 CSORA, including his name, the period which he has been known by other names, his date of birth, his address, his postal address, the nature of his work and his employer (if working), affiliations with clubs or organisations that have child membership, details of any vehicle owned or driven, details of any tattoos, details of when and where he has been in custody, passport details, any plans to leave South Australia, details of any carriage service or internet service used, details of the type of email connection used, details of any email addresses, passwords, internet user names, instant message user names and access codes used. He would also be required to report annually and to provide any additional reports as required by ss 15 and 15A. Lastly, under s 16 any change to his personal details must be reported within 7 days of any change.
I accept that to release Mr Hoare into the community under strict conditions such as those suggested by the Attorney-General supplemented by obligations imposed by or under the CSORA would go a long way toward the control of Mr Hoare’s external factors. I cannot conclude that his external factors would necessarily improve. That would depend upon more than supervision and electronic monitoring. No evidence was adduced regarding what the options for treatment, education, counselling and the development of interpersonal and relationship skills in the community would consist of. I doubt that these things could be dealt with easily in the absence of also dealing with Mr Hoare’s distorted thinking and the development of skills and strategies to reduce the risk of his acting on his thoughts. They would in any event not necessarily improve his management of his internal controls, and, absent advances in treating his internal controls, protective factors do not improve. I am not convinced that merely controlling Mr Hoare’s external factors by electronic monitoring and supervision will improve the risk that Mr Hoare poses to the community. The risk he poses remains largely a reflection of his internal controls and absence of protective factors. Leaving all the work in the protection of the community to controlling Mr Hoare’s external factors does not adequately protect the community in the long term. Controlling the risk of Mr Hoare re-offending would largely be the product of intervention as opposed to Mr Hoare owning his deviant thinking, accepting that it is wrong to act on such thinking, and working to put in place measures that ensure he does not act on his distorted thinking. To release Mr Hoare does not provide any comfort as to the improvement of Mr Hoare’s distorted thinking and his internal controls nor as to his development of protective factors. The risk I have articulated would remain awaiting opportunity.
I am satisfied that the treatment afforded Mr Hoare to date has not resulted in Mr Hoare satisfying treatment targets to an extent where this Court can take comfort that he now has insight into the wrongful and harmful consequences of his acting upon his disordered or deviant thinking or is equipped with skills in managing the risks associated with such thinking. This position has been reached despite his taking part partially in treatment offered by Owenia House, having the benefit of one-on-one treatment during his first period of offending as referred to above, and his having undertaken the Sexual Behaviour Clinic program. If this level of intervention has not resulted in significant gains the implication is that he requires something more tailored and more intense. In this regard Dr Brereton expressed the opinion that the preferable course was for Mr Hoare to complete individual work in prison. That work he said would involve challenging Mr Hoare’s cognitive distortions, educating him as to the consequences of his offending, assisting him to manage his own risks, and equipping him with techniques to manage his emotions and thinking. The success of cognitive behavioural therapy hinges on Mr Hoare learning to identify unhelpful thoughts and then deal with those in a constructive way rather than acting upon them. This would involve making sure that Mr Hoare understands the kinds of mood likely to precipitate his offending and the mindsets likely to put him at a higher risk, so that he may monitor himself effectively.
The supervision regime created by the High Risk Offenders Act is not necessarily, in my view, a substitute for the regime created by Part 2 Division 3 of the Sentencing Act nor is it intended to be. The focus of Part 2 Division 3, upon an order being made under s 23, is treatment first and foremost. This is particularly evident in s 23(9) and (10) of the Sentencing Act and in the provision for release on licence and the gradual reintegration of the individual who is initially indeterminately detained. It is this sort of regime that offers the community the best protection from the risk posed by Mr Hoare.
In my view it is the treatment and improvement of Mr Hoare’s internal controls leading to the development and improvement of protective factors that will ultimately best protect the community. I appreciate that Mr Hoare can be treated in the community, but that would not be subject to the system of review and ultimate supervision of this Court provided for by the Sentencing Act. That system obliges the provision of treatment, the tracking of progress, the review of methodologies and outcomes, and change to such methodologies and outcomes if desired results are not obtained. That said, I have already referred to the inadequacies of that regime. I accept Dr Brereton’s opinion that it would be best for Mr Hoare to undertake individual work in custody rather than in the community through the programs offered by Owenia House. In my view, bearing in mind the risk that Mr Hoare poses to the community, it is apt that he be indeterminately detained in order that he take advantage of the treatment regime provided for under the Sentencing Act to ensure the protection of the public.
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.