In Hore v The Queen; Wichen v The Queen  HCA 22 (15 June 2022), the High Court was required to consider the operation of s59 of the Sentencing Act 2017 (SA) (the Act).
Under s57 of the Act, the Supreme Court of South Australia may order that a person who has been convicted of certain sexual offences may be detained in custody until further order.
Section 59(1) of the Act provides that the Supreme Court may authorise a person who has been detained in custody, under s57, to be released subject to certain conditions – that is, ‘on licence’. Section 59(1a)(a) provides that people applying for release on licence cannot be released unless they satisfy the Supreme Court that they are “both capable of controlling and willing to control … (their) sexual instincts”.
The term ‘willing’ is not defined in the Act. But s57(1) provides that a person, to whom s57 applies, will be regarded as “unwilling to control [his or her] sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person’s sexual instincts”.
Both appellants are subject to an order for detention under the predecessor to s57 of the Act. Both appellants applied for, and were refused, release on licence pursuant to s59 (Kourakis CJ in respect of Wichen, and Hughes J in respect of Hore).
Both primary judges held that, on a proper construction of s59(1a)(a), the term ‘willing’ means the opposite of ‘unwilling’ as defined in s57(1) of the Act. And, in each case, the primary judge was not satisfied that the appellant was willing to control his sexual desires.
Both primary judges also considered that the willingness to control sexual desires was, essentially, a threshold question that had to be satisfied before the court could consider the imposition of conditions on release.
Both appellants appealed unsuccessfully to the Court of Appeal of the Supreme Court of South Australia (Kelly P, Lovell and Bleby JJA). The appellants then appealed to the High Court – this time with mixed success. The High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) reached a unanimous decision and set out its reasons in a single judgment.
The appellants advanced two broad arguments. First, the appellants argued that ‘willing’ should be given its ordinary meaning, which is to signify a subjective state of mind on the part of the detainee. The appellants argued that the definition contained in s57(1) of the Act applies only to s57. The High Court dismissed this argument.
The High Court, at -, observed that the appellants’ argument could not be reconciled with other sections of the Act, which required the Supreme Court to obtain medical reports on whether the person (applying for release) is either incapable of controlling his or her sexual instincts, or is at significant risk of failing to control those instincts if given the opportunity to commit a relevant offence.
The High Court noted, at , that the “unmistakeable” intention of the Act is that the question of a person’s willingness is not to be resolved by “uncritical acceptance of the person’s expressed inclination to control … his or her sexual desires”.
Second, the appellants argued that willingness depends on the circumstances in which the opportunity to commit a relevant offence may arise. And the appellants argued that these circumstances may include the conditions of release. The High Court accepted this argument.
The High Court, at , recognised that the conditions of release may have a bearing on the Supreme Court’s assessment of a person’s commitment to exercising appropriate self-control. The High Court considered, at -, that there was nothing in the text of s59 of the Act that required the Supreme Court to disregard the conditions of release in evaluating a person’s willingness to control his or her sexual desires.
The High Court, at , also had regard to the purpose of s59(1a)(a) as set out in the second reading speech. The High Court, at , found that the amendments introducing s59(1a) were not concerned to deny the possibility of finding a person has the required willingness to exercise appropriate self-control, on the basis that the person’s conditions of release may help to strengthen that self-control.
The High Court made orders setting aside the order of the Court of Appeal and decisions of the primary judge in each matter, and remitted each of the appellant’s applications for release on licence to the primary judge to be determined according to law.
Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.