State of New South Wales v Hordern

[2024] NSWSC 746

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hordern [2024] NSWSC 746

Hearing dates:

17 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), Mr Hordern be subject to an Interim Supervision Order commencing on 26 May 2024.

(2)   Pursuant to ss 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

(3)   Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

(4)   Pursuant to ss 7(4) of the Act:

(a)   I appoint two qualified psychiatrists or two registered psychologists, or a combination of one of each, to conduct separate psychiatric and/or psychological examinations of Mr Hordern and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b)   I direct Mr Hordern to attend those examinations.

Catchwords:

HIGH RISK OFFENDERS – extended supervision order – interim order – order agreed – conditions agreed – orders made – conditions attached

Legislation Cited:

Crimes Act1900 (NSW), s 61M(2)

Crimes (High Risk Offenders) Act 2005 (NSW), ss 5, 5B, 5D, 5H, 5I, 9(2), 9(3), 10A

Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Hordern v R (2019) 278 A Crim R 353; [2019] NSWCCA 138

Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Hordern (Supreme Court (NSW), 17 September 2009, unrep)

State of New South Wales v Hordern (Supreme Court (NSW), 18 December 2009, unrep)

Tillman v Attorney General for New South Wales (2007) 178 A Crim R 133; [2007] NSWCA 327

Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Timothy Hordern (Defendant)

Representation:

Counsel:
K. Ng (Plaintiff)
S. Climo (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission (Defendant)

File Number(s):

2024/00113913-1

Publication restriction:

Nil

JUDGMENT

1. Mr Hordern has a criminal history of committing sexual offences against young children which began in 2003, when he was charged with 3 counts of aggravated indecent assault of his two-year-old victim. In 2008, while subject to a good behaviour bond, he was convicted of the aggravated indecent assault of a five-year-old victim, committed when he had unsupervised access to her for only a short period: Crimes Act1900 (NSW) ss 61M(2). He was then conditionally discharged, because he was diagnosed to be suffering from Asperger’s syndrome, with the result that he was dealt with under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

2. In 2009 Fullerton J first imposed a five-year extended supervision order on Mr Hordern, after RA Hulme J had first imposed an interim order: State of New South Wales v Hordern (Supreme Court (NSW), 17 September 2009, unrep); State of New South Wales v Hordern (Supreme Court (NSW), 18 December 2009, unrep).

3. Fullerton J noted that Mr Hordern had disclosed to court-appointed psychiatrists that he had also committed a large number of sexual offences against mostly female children for which he had never been convicted, at times during periods when he quite frequently committed such offences. This while he was subject to a good behaviour bond: at [19].

4. In 2017, while still subject to the final supervision order, Mr Hordern was convicted of two further indecent assaults of victims who were aged two and four years, to whom he had also had only short unsupervised access. His sentence for these offences was later reduced: Hordern v R (2019) 278 A Crim R 353; [2019] NSWCCA 138. These were also “serious sex offences” within the meaning of ss 5(1) of the Crimes (High Risk Offenders) Act 2006 (NSW). The result of his sentences for those and other offences which he committed suspended, at various times, the operation of his extended supervision order.

5. Since 2011 Mr Hordern has been repeatedly convicted of breaching his extended supervision order. His most recent conviction being in August 2023. While he is pursuing an appeal against that latest conviction, the result of his conviction for his repeated breaches is that the current order is only due to expire on 30 June 2024, despite having been first imposed in 2009.

6. The State of New South Wales now seeks a further five-year extended supervision order: Crimes (High Risk Offenders) Act s 5H, 5I. Mr Hordern consented to the making of an interim supervision order: s 10A

7. For reasons which follow, I am independently satisfied that the orders which the parties have agreed must be made, on the conditions which they also finally agreed.

Issues

8. There is no issue about the Court’s power or exercise of the discretion to make the interim order, given the admitted risks of further serious offending which Mr Hordern still continues to pose. The parties were also agreed about the statement which the State was obliged to file in support of its application, the relevant facts and the terms of the proposed order.

9. When the hearing commenced the dispute between the parties was confined to two of the proposed new conditions of the interim supervision order. During the course of the hearing, however, even that disagreement was finally resolved.

The requirements of the statutory regime are satisfied

10. I accept the parties’ common position that all of the requirements of the statutory scheme are satisfied on the evidence; that the Court does have the discretion to make the proposed interim order; and that it must be exercised, given the high risk that Mr Hordern undoubtedly continues to pose, of committing further “serious sex” offences, as they are defined in ss 5(1) of the High Risk Offenders Act. He is an “offender” as defined in s 4A and a “supervised offender” as defined in ss 5I(2). The preliminary jurisdictional requirements are thus satisfied.

11. In making orders under that Act its objects must be born in mind, including the primary object of providing for the extended supervision of high risk sex offenders so as to ensure the safety and protection of the community and encourage such offenders to undertake rehabilitation: s 3. An offender’s right to personal liberty after serving a term of imprisonment is not a consideration in the evaluative task the Act requires the Court to undertake: Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44], [55]-[58], [128] and [148].

12. The Act only permits supervision orders to be made if the Court is satisfied, to a high degree of probability, that an offender poses an “unacceptable risk” of further such offending, if not kept under supervision: s 5B. That term is not defined but must be understood in the context of the objects and provisions of the Act.

13. It does not require the Court to be satisfied that it is more likely than not that the offender poses an unacceptable risk: s 5D. ‘Likely” means probable, the degree of probability being at the upper end of the scale, but not necessarily more than 50 percent: Tillman v Attorney General for New South Wales (2007) 178 A Crim R 133; [2007] NSWCA 327; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

14. In exercising the discretion to make an order, safety of the community is the paramount consideration: ss 9(2). The matters specified in ss 9(3) must also be taken into account. Importantly, they include relevant reports, treatment and rehabilitation programs undertaken and the likelihood of compliance with the order. In this case, there is evidence of Mr Hordern’s repeated failures to comply with supervision orders imposed by the Court, as well as his compliance, since August 2023, although the evidence also sheds light on his risk of future non-compliance.

15. I am satisfied on all of the evidence that there is a high degree of probability, that Mr Hordern is likely to continue committing further serious sex offences against young victims, if not kept under the proposed supervision.

16. I am also satisfied about the other relevant statutory requirements, which include those of s 5B, which requires that:

1. Mr Hordern be an offender who has served a sentence of imprisonment for a serious offence in custody, who is now in the community under supervision, that making him a “supervised offender” within the meaning of s 5I;

2. The application be made, as it was, in accordance with the requirements of s 5I; and

3. The Court be satisfied to a high degree of probability, as I am, that Mr Hordern poses an unacceptable risk of committing another serious offence if not kept under supervision under the proposed order.

The evidence establishes that an interim order must be made

17. The evidence well establishes that the interim order must be made.

18. It also establishes why the five-year supervision order was made by Fullerton J, given the serious sex offences Mr Hordern had committed and the expert reports which her Honour had to consider in 2009. In addition to this, it establishes how the order was suspended while Mr Hordern was in custody in 2011, 2012, 2013, 2015 and 2023 because of his further offending. This resulted in the end date of that order not being arrived at until 30 June 2024, Mr Hordern having spent some 3,490 days in custody, in total, since her Honour imposed that order.

19. The result is that Mr Hordern is now a ‘supervised offender’ on whom I am satisfied a further interim supervision order should be imposed: ss 5I(2), the State having made its application on 1 October 2023, as the Act permitted.

20. Both the material on which Fullerton J was satisfied in 2009 gave the Court power to make the order she was persuaded had to be imposed on Mr Hordern, and the further 2023 risk assessment report which establishes the continuing risk which Mr Hordern now poses, are in evidence.

21. I am satisfied that the evidence thus well establishes the high risk that Mr Hordern regrettably continues to pose, if he has even the briefest unsupervised access to young children, of committing further serious sex offences against them, despite courses he has undertaken which are designed to help address such risks.

22. Fullerton J explained the risks which experts had explained Mr Hordern then posed at [26]-[31], despite his pleas and candour about his extensive offending.

23. The further evidence led on this application establishes that he later continued to act on his tendency to commit opportunistic, serious sexual offending when he was able to gain access to unsupervised, very young children. For his 2017 offending, his sentence was reduced on appeal because the appeal bench arrived at a different view on the evidence, concluding that whether there had been planning involved in his offending had not been proven beyond reasonable doubt.

24. That Mr Hordern continues to pose the risk of further opportunistic offending was established by the views of those who have since dealt with Mr Hordern and prepared current risk assessments.

25. Dr Richard Parker explained in his September 2023 risk assessment report the assessment instruments he had utilised and the dynamic risk factors which he had considered. He explained that Mr Hordern appeared to have little appreciation for the perspectives of others, due to “an impaired theory of mind”. This led him to behave in socially inappropriate ways. He observed that it was not clear whether Mr Hordern considered that children were capable of consenting to sexual activity, but observed that when it came to his sexual offending, Mr Hordern did not care about the child’s wishes. This helps explain both his offending and failed compliance with the conditions of his current supervision order.

26. His impairment also presents Mr Hordern with the problem of not recognising the hurt he has caused his victims. The result is that he fails to care about the consequences of his actions for others. His continuing sexual attraction to children and his willingness to sexually assault them during even brief periods of opportunity, compounds the risk he poses, given that he has little awareness of the harm his offending results in. Despite his involvement in treatment programs, he has developed little appreciation of this.

27. Dr Parker thus considers any future offending against children would also be likely to unfold quicky, when Mr Hordern is able to take the opportunity to offend when a child is even briefly unsupervised. There was no evidence that he has progressed to modify his offending process to gain access to children through grooming behaviour, but Dr Parker considered that it was possible that he could develop more sophisticated methods of offending.

28. His conclusions were that Mr Hordern’s risks, assessed by the tools he had used, fell into the medium category, posing well above average risk, a risk which was assessed also to be high.

29. This accorded with reports of Mr Hordern’s lack of therapeutic progress when he undertook the Cubit course in 2015. Then he experienced difficulties, given his lack of real understanding of his problems with and responsibility for his own offending behaviours. He was then also assessed as remaining of high risk, which accorded with his later further sexual offending.

30. During Mr Hordern’s participation in the HISOP program in 2021 and 2022, after he was refused parole, he revealed an understanding of loopholes in his electronic monitoring, which had seemingly permitted his further offending, although he still denied any planning. His capacity to manage his offending behaviour was then found to be limited. He had an entrenched pattern of paedophilic interest and sexual preoccupation and was found to be vulnerable to his deviant sexual pattern. While the justice system provided a deterrent, it did not prevent recidivism and he did not have the skills or knowledge to manage the risks which he posed. They then remained well above average. It was thus considered that he would benefit from ongoing support. To Dr Parker, Mr Hordern later denied saying during the HISOP program, that his offending was low-level in the eyes of the law, having only involved cunnilingus. But he continued to blame factors outside of himself for his offending and his responsibility for breaches of his supervision order. He also refused to discuss his most recent offending.

31. In the result, the conclusion that Mr Hordern continues to pose an ongoing considerable and unacceptable risk of further serious sexual offending against young children, to whom he remains attracted, given that he is now in the community having served his sentences for his most recent sexual offending, cannot be doubted.

32. That explains the agreement which the parties reached about the interim orders and why I am also satisfied that they must now be made.

The conditions

33. The conditions which may be imposed by an extended supervision order are dealt with in s 11. The Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address Mr Hordern’s risk of future offending of the type which is the basis of the order, rather than general future criminal conduct: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [53]-[54].

34. The parties finally resolved their differences about the only disputed aspect of the proposed conditions, which concerned search and seizure. The agreed conditions of supervision, which I consider do address Mr Hordern’s particular risk of future offending, are attached as a schedule to the orders.

35. I am satisfied that they are all appropriate, given the continuing risk of future serious sex offending that he still now poses.

Orders

36. For the reasons given, I order that:

1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), Mr Hordern be subject to an Interim Supervision Order commencing on 26 May 2024.

2. Pursuant to ss 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

4. Pursuant to ss 7(4) of the Act:

1. I appoint two qualified psychiatrists or two registered psychologists, or a combination of one of each, to conduct separate psychiatric and/or psychological examinations of Mr Hordern and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. I direct Mr Hordern to attend those examinations.

SCHEDULE OF CONDITIONS OF SUPERVISION

TIMOTHY HORDERN

In these conditions:

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Commissioner” means Commissioner for Corrective Services.

“CSNSW” means Corrective Services NSW.

“Defendant” means Timothy Hordern, also known as Tim Hordern; and Timothy Eli Hordern, the defendant in these proceedings and the subject of the order.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Electronic Identity” means each of the following:

a.   an email address,

b.   a user name or other identity allowing access to an instant messaging service,

c.   a user name or other identity allowing access to a chat room or social media on the internet,

d.   any other user name or other identity allowing access to the internet or an electronic communication service.

“Material” includes:

a.   any written or printed material;

b.   any picture, painting or drawing;

c.   any carving, sculpture, statue or figure;

d.   any photograph, film, video recording or other object or thing from which an image may be reproduced;

e.   any computer data or the computer record or system containing the data; and

f.   any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Search” includes:

a.   A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

b.   A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about:

   a.   where he is or has been;

   b.   where he is going;

   c.   who he is with or has been with;

   d.   what he is doing or has been doing; and

   e.   the nature of his associations.

4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.

5. The defendant must agree to any information relating to his risk, supervision or rehabilitation being shared between those persons and agencies that are involved in his supervision, including, but not limited to, a DSO, NSWPF and CSNSW.

Electronic Monitoring

1. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

Schedule of Movements

1. If directed, the defendant must provide a schedule of movements.

1. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

2. The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

1. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

10A. The DSO must respond to requests for approval of accommodation with a determination of the request in a timely manner.

1. If directed by a DSO, the defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.

2. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

3. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses without the approval of a DSO.

4. The defendant must promptly notify a DSO of any person who is visiting him and remaining at his approved address.

5. The defendant must not permit any person to stay overnight with him at his approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.

Part C: Place and travel restrictions

1. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

2. The defendant must not leave New South Wales without the approval of the Commissioner.

3. The defendant must not go to any place specified by a DSO.

4. Without limiting condition 18 above, the defendant must not go to any of the following places without the prior approval of a DSO or unless the defendant is accompanied by a person approved in advance by the DSO:

   a.   Day-care centres, pre-schools and schools;

   b.   Amusement parlours, amusement parks and theme parks;

   c.   Cinemas;

   d.   Libraries and museums;

   e.   Camping grounds and caravan parks;

   f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

   g.   Pools, playing fields and sporting facilities;

   h.   Activities intended for the entertainment of children; and

   i.   Residences where he knows that persons aged under 18 years ordinarily reside.

5. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

1. The defendant must take all reasonable steps to participate in programs as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development activities.

2. The defendant must not start or change any job, volunteer work or educational course without the approval of a DSO and such approval should not be unreasonably refused.

Part E: Non-association

Association with Children

1. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than:

   a.    incidental contact in a public place in the course of the duties of the minor; or

   b.   with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO; or

   c.   in the presence of an appropriate adult (being a person previously approved by the DSO for the purpose of this condition).

Associations with Others (not children)

1. The defendant must not associate with any person specified by a DSO.

   a.   The defendant is not to associate with a person who is a parent or guardian or has the care and control of a child under the age of 18 years, without the prior approval of the DSO.

2. Without limiting condition 24, the defendant must not associate with any person who is held in custody without prior approval of a DSO.

3. The defendant must not engage the services of sex workers without the prior approval of a DSO.

4. The defendant must agree to a DSO disclosing his criminal history to another person. Before any disclosure is made, the defendant will first be given the opportunity to make the disclosure himself within a timeframe as identified by a DSO.

5. The defendant must obtain written approval from a DSO prior to joining or affiliating with any club or organisation.

Part F: Access to the internet and other electronic communication

1. The defendant must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet.

2. The defendant must disclose the following information to a DSO if directed:

   a.   Aliases, electronic identities and log-in names;

   b.   Email addresses;

   c.   Telephone numbers;

   d.   SIM cards;

   e.   Applications used (including any social networking service);

   f.   Online gaming services;

   g.   Instant messaging services;

   h.   Service provider account numbers; and

   i.   All passwords and log-in details (this does not extend to any online bank accounts).

3. The defendant must not use any of the following unless approved by a DSO:

   a.   Social networking applications or services (including dating services or applications);

   b.   Encrypted messaging applications or services;

   c.   Online gaming applications or services;

   d.   Instant messaging applications or services.

4. The defendant must give a DSO a list of the electronic devices he uses to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. The defendant must advise a DSO of any change to the list immediately.

5. The defendant must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

6. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by him, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

7. The defendant must not delete or alter any of the following from his electronic devices without prior approval of a DSO:

   a.   Applications;

   b.   Emails;

   c.   Text messages;

   d.   Electronic messages;

   e.   Call history;

   f.   Files or documents;

   g.   Photographs, images and videos; or

   h.   Internet or application usage and search history.

8. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part G: Search and seizure

37A.  If the DSO forms a reasonable suspicion that a search is required, either to monitor the defendant’s compliance with this Order, or for the safety and welfare of any other person, or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search by his DSO (or any other person as directed by the DSO) of person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search.

37B.  The defendant must submit to the search by his or her DSO  (or any other person as directed by the DSO) of any computer, electronic or communication device in his possession or under his control and to the seizure of such devices.

1. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part H: Access to pornographic, violent and classified material

1. If directed by the DSO with respect to concerns related to the risk of committing a serious sexual offence, the defendant must inform the DSO when he purchases, possesses, accesses, views, participate in, or listens to material classified as Refused Classification, X18+ Restricted, Category 1 Restricted and Category 2 Restricted as defined under the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

Part I: Personal details and appearance

1. The defendant must not change his name from “Timothy Hordern” or use any other name without notifying a DSO.

2. The defendant must not significantly change his appearance without the approval of a DSO.

3. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

4. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part J: Medical intervention and treatment

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

2. If directed, the defendant must undergo an assessment for the purposes of a Mental Health Care Plan or Community Treatment Order.

3. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

4. The defendant must take medications that are prescribed to him by his healthcare practitioners and only in the manner prescribed.

5. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

6. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

7. The defendant must agree to any information obtained under condition 49 being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

8. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

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Decision last updated: 20 June 2024