R v Hore

Case [2016] SASC 21 19 February 2016

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HORE
[2016] SASC 21
Reasons for Decision of The Honourable Justice Nicholson
19 February 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by Attorney-General for an order pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order.
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, s 23A, s 24; Child Sex Offenders Registration Act 2006 (SA) s 44, s 66JB, s 66M, s 66N; Criminal Law Consolidation Act 1935 (SA) s 63A; Summary Procedure Act 1921 (SA) s 99AA, s 99AB, referred to.
Police v Hore [2015] SASC 150; R v Sumner [2015] SASC 177; R v England [2004] SASC 20, (2004) 87 SASR 411; R v Whyte [2006] SASC 56; R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238; R v Armfield [2005] SASC 108; R v Warsap [2011] SASC 73; R v Warsap [2011] SASCFC 129, (2011) 111 SASR 232; R v Williams [2006] SASC 377, (2006) 96 SASR 226; R v Wichen [2005] SASC 323, (2005) 92 SASR 528, considered.

R v HORE
[2016] SASC 21
Criminal: Application
NICHOLSON J.
Introduction

The respondent is presently serving a term of imprisonment of 16 months with a non-parole period of ten months which commenced on 10 April 2015. He pleaded guilty to three counts of failing, as a registrable offender, to comply with reporting conditions without reasonable excuse[1] and one count of possessing child pornography knowing of its pornographic nature.[2]
[1] Contrary to section 44(1) of the Child Sex Offenders Registration Act 2006 (SA).
[2] Contrary to section 63A of the Criminal Law Consolidation Act 1935 (SA). The nature of the offending, the respondent's personal circumstances and criminal antecedents are summarised in Police v Hore [2015] SASC 150.
At the time of committing these offences, the respondent had a history of sexual offending. He has committed a number of offences that fall within the definition of “relevant offence” for the purposes of section 23 of the Criminal Law (Sentencing) Act 1988. By application dated 26 June 2015,[3] the Attorney-General applied pursuant to that section for an order that the respondent be detained in custody until further order and notwithstanding that the term of imprisonment presently being served is due to expire on or about 9 August 2016.
[3] Amended by second originating application filed on 25 September 2015.
On 9 February 2016 and given the proximity of the expiration of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hore

Details

AGLC: R v Hore [2016] SASC 21
Case: [2016] SASC 21
Decision Date: 19 February 2016

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against a sentence of indefinite detention imposed by the Supreme Court. The respondent, Hore, had been found guilty of serious sexual offences against children. The appeal was against the severity of the sentence and the imposition of indefinite detention under the Sentencing Act. The legal issues for the court to consider included the appropriate sentence for the respondent given the gravity of his offences, the risk he posed to the community, and the potential for rehabilitation.

The court examined the evidence provided by various experts on the respondent's risk of reoffending and the effectiveness of rehabilitation programs. The court found that the respondent was at a very high risk of reoffending without further treatment and that past rehabilitation efforts had been ineffective. However, there was potential for successful rehabilitation if the respondent genuinely engaged with a program. The court considered the advantages of in-custody programs, which offered a significant incentive for participation due to their impact on parole prospects, over voluntary community-based programs, which posed a higher risk due to the respondent's history of deceit and exploitation.

After weighing the evidence and expert opinions, the court determined that the best way to manage the risk posed by the respondent was through an order for indefinite detention, allowing him to participate in rehabilitation programs while in custody. The court also ordered that the respondent be assessed for and included in further rehabilitation programs as soon as practicable, to assist him in applying for release on licence or discharge of the detention order in the future. The court believed this approach would provide the best chance for reducing the respondent's risk to the community through effective rehabilitation.

Orders

Orders of the court

In these circumstances, it is important that the respondent be assessed for and included in further rehabilitation programs, designed to assist him to press an application for either release on licence or for the discharge of the section 23 order that I have made, as soon as practicable.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

A substantial amount of information was provided by Mr Sim and Mr Balfour on the topic of rehabilitation program options. It is not necessary to repeat that information in detail; the following general propositions are not seriously or significantly in dispute.(i)Actuarial and clinical risk assessments available to the Department for Correctional Services estimate the respondent to be at very high risk of sexual reoffending should he not receive any further treatment. The evidence relied on by and opinions expressed by both Dr Begg and Dr Nambiar support this conclusion.(ii)The respondent’s offending history has been described as covert, deceitful and exploitative. He has a history of obtaining access to young children through forming a relationship with their mother or their families. (iii)The results of past participations in therapeutic programs both in custody and in the community, to this point, have been disappointing. On all of the evidence, the respondent has been either incapable of genuine engagement with such programs or unwilling to genuinely engage with such programs. As a consequence, he has obtained some intellectual appreciation of the wrongfulness of his conduct but no genuine understanding of or commitment to its wrongfulness and to the need for change. (iv)Both the prison system and Owenia House offer rehabilitation programs, courses of counselling and access to suitable professional assistance such that should the respondent genuinely engage through either avenue, an appreciable measure of rehabilitation might be obtained. (v)It is not possible to predict in advance the extent to which further rehabilitative efforts, whether pursued through the in custody programs or through the Owenia House or private psychologist options, might succeed. I accept, on the evidence and notwithstanding the limited progress made by the respondent to this point in terms of genuine rehabilitative effort, that if he were to properly apply himself and genuinely engage with a rehabilitative process the risk he continues to pose to the community may be appreciably reduced. I am satisfied of this whichever of the in custody or Owenia House avenues were to be pursued.(vi)Pursuing rehabilitation through the programs available whilst in custody has a significant advantage over the pursuit of rehabilitation whilst in the community. Whilst such participation is not compulsory when in custody, there is a major incentive to genuinely participate. Genuine participation or lack thereof is likely to have a significant impact on parole prospects or, in the case of the respondent, on his prospects of having any section 23 order for indefinite detention revoked or of obtaining favourable consideration of an application to be released on licence pursuant to section 24. (vii)By way of contrast, the programs offered by Owenia House or through a private psychologist, are truly voluntary. If the respondent were to be granted parole it could be made a condition of his parole that he attend such a program. However, any parole period that might be enjoyed by the respondent would be only a matter of months. According to all of the professional opinion and on any analysis, this would not be anywhere near a sufficient time period within which to achieve a successful rehabilitation. The respondent’s present sentence will expire in August of this year at which time he would be entitled (absent an order for continued detention under section 23) to be released into the community unconditionally. Given the respondent’s history of covert and deceitful behaviour aimed at permitting him to continue to offend without detection and given the obvious and significant risk to the community posed by the respondent unless and until some successful rehabilitation occurs, the risks associated with relying on voluntary attendance at Owenia House or a private psychologist are of significance. (viii)The significant disadvantage that comes with an order for indefinite detention is that the rehabilitation programs available in custody will take quite some time to be offered and to be completed. It is quite possible that should an order for continued detention be made, the respondent will be required to spend a substantial period of time, perhaps one or more years, in custody after the expiration of his present sentence before the indicated programs would be offered and completed. Further, it is likely, although not inevitable, that the respondent will need to successfully complete the rehabilitation programs available whilst in custody and demonstrate a major change in his attitude, understandings and behaviour before he would succeed with an application for any section 23 order to be discharged or for a release on licence pursuant to section 24.Consideration

Citations

AGLC Citation

R v Hore [2016] SASC 21

Most Recent Citation

R v Hoare [2017] SASC 7

Cases citing this decision · 5 of 5 shown

Hore v The King
[2023] SASC 108 Para 1

…sexual instincts and he was detained in custody until further order, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).[1] [1] R v Hore [2016] SASC 21.…
Hore v The Queen
[2022] HCA 22 Para 11

…following a prosecution appeal against his original sentence, to 16 months' imprisonment with a non‑parole period of ten months[14]. [11] R v Hore [2016] SASC 21 at [5]‑[6], [8]. [12]Contrary to s 44(1) of the Child Sex Offenders Registration Act 2006 (SA). [13]Contrary to s 63A of the Criminal Law Consolidation…
Hore v The Queen
[2021] SASCA 29 Para 8

…custody until further order, pursuant to s 23 of the now‑repealed Criminal Law (Sentencing) Act 1988 (SA) (‘the repealed Act’).[4] [4] R v Hore [2016] SASC 21.…
Hore v The Queen
[2020] SASC 194 Para 26

…In making the order, Nicholson J said:[7] [7] R v Hore [2016] SASC 21 at [34]-[40]. I accept the submission that the respondent’s criminal conduct to this point is not of the most serious type when regard is had to the range of potential sexual offending against young children. Nevertheless, it is of a very serio…
R v Hoare
[2017] SASC 7 Para 30

…n 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].…

View all 5 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Sumner
[2015] SASC 177 Para 9

…The relevant law has recently been summarised by me in the following terms.[10] [10] R v Sumner [2015] SASC 177 at [31]-[41]. The fundamental purpose of an order for indefinite detention pursuant to section 23 is to assist with protecting the public from persons who are incapable of controlling, or unwilling to co…
Police v Hore
[2015] SASC 150 Para 1

…lidation Act 1935 (SA). The nature of the offending, the respondent's personal circumstances and criminal antecedents are summarised in Police v Hore [2015] SASC 150.…
R v Warsap
[2011] SASCFC 129 Para 9

…Criminal Appeal; the appeal was dismissed, see R v Warsap [2011] SASCFC 129; (2011) 111 SASR 232. [29] Section 23(6) of the Sentencing Act . [30] Section 23(7) of the Sentencing Act . [31] Sections 23(9), 23A and 24 of the Sentencing Act . The expert and other evidence…
R v Warsap
[2011] SASC 73 Para 9

…6], [60]. [27] R v Armfield [2005] SASC 108 at [67]. [28] [2011] SASC 73. The sentence in this matter was appealed to the Court of Criminal Appeal; the appeal was dismissed, see R v Warsap [2011] SASCFC 129; (2011) 111 SASR 232. [29] Section 23(6) of the Sentencing Act . [30] Section 23(7) of the Sentencing Act .…
R v Ainsworth
[2008] SASC 67 Para 9

…v England (2004) 87 SASR 411 at [58]. [25] R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [41]. [26] [2006] SASC 56 at [15]; R v England (2004) 87 SASR 411 at [56], [60]. [27] R v Armfield [2005] SASC 108 at [67]. [28] [2011] SASC 73. The sentence in this matter was appealed to the Court of Criminal Appeal…
R v Williams
[2006] SASC 377 Para 12

…epresents a sufficient and continuing degree of danger to the community can the making of such an exceptional order be justified. [38] R v Williams [2006] SASC 377; (2006) 96 SASR 226 at [13]-[14]. [39] R v Wichen [2005] SASC 323; (2005) 92 SASR 528 at [121].…
R v Whyte
[2006] SASC 56 Para 9

…sideration when determining whether to make an order for indefinite detention. [12] R v England [2004] SASC 20; (2004) 87 SASR 411 at [11], R v Whyte [2006] SASC 56 at [13]. 23—Offenders incapable of controlling, or unwilling to control, sexual instincts (1) In this section— institution means— (a)a prison; and (b…
R v Wichen
[2005] SASC 323 Para 12

…unity can the making of such an exceptional order be justified. [38] R v Williams [2006] SASC 377; (2006) 96 SASR 226 at [13]-[14]. [39] R v Wichen [2005] SASC 323; (2005) 92 SASR 528 at [121].…
R v Armfield
[2005] SASC 108 Para 9

…gland (2004) 87 SASR 411 at [56], [60]. [27] R v Armfield [2005] SASC 108 at [67]. [28] [2011] SASC 73. The sentence in this matter was appealed to the Court of Criminal Appeal; the appeal was dismissed, see R v Warsap [2011] SASCFC 129; (2011) 111 SASR 232. [29] Section 23(6) of the Sentencing Act . [30] Section…
Fardon v Attorney-General (Qld)
[2004] HCA 46 Para 9

…ueensland legislation considered in Fardon v Attorney-General (Qld) [2004] HCA 46. [21] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ. The Court directed that two psychiatrists inquire into the mental condition of the defendant and to report on whether he is incapable of controlling,…
R v England
[2004] SASC 20 Para 9

…Sentencing Act provides that this is the paramount consideration when determining whether to make an order for indefinite detention. [12] R v England [2004] SASC 20; (2004) 87 SASR 411 at [11], R v Whyte [2006] SASC 56 at [13]. 23—Offenders incapable of controlling, or unwilling to control, sexual instincts (1) I…
Boughey v the Queen
[1986] HCA 29 Para 9

…on v Attorney-General (Qld) [2004] HCA 46. [21] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ. The Court directed that two psychiatrists inquire into the mental condition of the defendant and to report on whether he is incapable of controlling, or unwilling to control, his sexual instinc…

Legislation cited in this decision · 5

Criminal Law Consolidation Act 1935 (SA)
267, 270A, 63A 4 mentions (from Para 1)
Child Sex Offenders Registration Act 2006 (SA)
44 2 mentions (from Para 1)
Criminal Law (Sentencing) Act 1988 (SA)
23 2 mentions (from Para 2)
Summary Offences Act 1953 (SA)
1 mention (from Para 9)
Summary Procedure Act 1921 (SA)
99AA 1 mention