State of New South Wales v Hordern (Final)

[2024] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hordern (Final) [2024] NSWSC 1169

Hearing dates:

5 September 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order (‘the extended supervision order’) for a period of five years from the date of the order.

(2) An order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these orders.

Catchwords:

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – conditions to be imposed as part of the ESO – no point of principle

Legislation Cited:

Crimes Act 1900 (NSW), s 61M(2)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5H, 5I, 6, 7 (4), 9(1)(a), 9(2)-(3), 10A, 10C(1), 11, 12

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

Cases Cited:

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

Category:

Principal judgment

Parties:

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

Representation:

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

Solicitors:
Crown Solicitor of New South Wales (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2024/00113913

Judgment

Introduction

1. By a summons filed on 25 March 2024, the plaintiff, the State of New South Wales, sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) in respect of the defendant, Mr Timothy Hordern, as well as interim orders pending the final determination of the matter.

2. A preliminary hearing took place on 20 June 2024. On that day, Schmidt AJ made the following orders:

“(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 30 June 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.”

3. On 20 March 2024, Schmidt AJ’s reasons for making these orders were provided to the parties. There were 51 conditions imposed under order (3). The interim supervision order (ISO) made by her Honour has been extended on a number of occasions with the result that it is due to expire at the end of 22 September 2024.

4. In accordance with the orders of Schmidt AJ, the defendant was examined by Dr Sally McSwiggan, clinical neuropsychologist, and by Ms Laura Durkin, forensic clinical psychologist. Each of those experts provided to the Court a report as a result of their examinations.

5. On 5 September 2024, the matter came before me for a hearing in relation to the final relief sought. At that hearing, the defendant did not wish to be heard in opposition to the making of an ESO for five years. In addition, most of the conditions to be imposed as part of that order were not in dispute.

Facts and matters agreed

6. Commendably and in accordance with cl 26(i) of Supreme Court Practice Note SC CL 12, the parties produced a Joint Statement of Agreed Facts for the purposes of the final hearing. In all the circumstances and in light of all the evidence in this matter, I was satisfied that it was appropriate to accept the facts and matters as agreed between the parties.

Defendant’s background

7. The defendant was born in 1986 and is presently aged 38 years. He has a younger sister and an older brother, and his parents separated when he was a young boy. The defendant lived with his mother until he was “forced out of home” at the age of 16, following which he lived in youth accommodation services for 6 months before returning to live with his mother. He then lived on his own in Smithfield and other Western Sydney suburbs.

8. The defendant has described his mother as being “abusive to me in every way except sexually”, and has suggested that his sexual interest in children was partly due to his mother’s behaviour towards him. In a HISOP Treatment Report dated 20 December 2022, the author noted the defendant described being bathed by his mother until his teens. The defendant reports he has never smoked due to being allergic to cigarette smoke. He also denies ever being dependent on alcohol, and of only trying cannabis once. The defendant has claimed that he has never used substances when asked about his drug history.

9. The defendant became a member of Holroyd New Life Church, when the congregation provided support to him after he left home at 16 years old. His social relationships and adult lifestyle are orientated around his involvement with this church, with many of his supporters being fellow members. The defendant’s only intimate relationship as an adult was conducted online with a woman from Brazil for a period of three to four years. This relationship ended upon the defendant’s return to custody in late 2015.

Mental health diagnosis

10. The defendant was diagnosed with Asperger’s Syndrome (a diagnosis now subsumed under the diagnosis of Autism Spectrum Disorder or “ASD”) by Dr Whan on 3 March 2004. While practitioners have agreed that the defendant demonstrates some ASD-related symptoms, this diagnosis has been debated in subsequent reports due to his psychiatric history and ability to interact without difficulty in interviews.

Criminal history

11. On 6 November 2003, when he was aged 17, the defendant was charged with three counts of aggravated indecent assault, where the victim was a two-year old female child and the daughter of two members of the Holroyd New Life Church. Two of those charges were later withdrawn and dismissed and, with respect to the final charge, the defendant was discharged pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

12. On 15 November 2006, the defendant was convicted of two counts of aggravated indecent assault on two girls aged six and seven on 12 May 2025. The victims lived in the same suburb as the defendant and were riding their pushbikes in a concrete area near the driveway of a residential unit complex. The defendant approached the girls on a large pushbike and offered to pump air into the tyres of the children's bikes. While doing so, the defendant picked up grass and rubbed it on the vaginal area of one child and then placed his hands under her pants and touched her vagina. The defendant also placed his hand in the pants of the other child and touched her vagina. The defendant received a five-year s 9 bond for this offending. The offences were “serious sex offences” for the purposes of s 5(1)(a)(ii) of the CHRO Act.

The original index offending

13. On 2 October 2008, the defendant was convicted of one count of aggravated indecent assault of a child under the age of 10 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offence occurred on 14 March 2008, when the defendant was subject to a good behaviour bond and he was employed by an electrical appliance store, tasked with delivering and installing electrical goods at a unit in West Ryde. The victim was a five-year-old girl, living at the unit with her parents. The defendant touched the victim’s vagina over her clothes with his left hand while his right hand touched her bottom. The offence was a “serious sex offence” for the purposes of s 5(1)(a)(ii) of the CHRO Act. On that same day, the s 9 bond imposed on 15 November 2006 for the earlier offending was called up.

14. The defendant was sentenced to imprisonment for 18 months commencing on 28 March 2008 with a non-parole period of 12 months.

The first ISO and ESO

15. On 17 September 2009, following a preliminary hearing, RA Hulme J made orders appointing two experts to examine the defendant and to furnish their reports to the Court together with an ISO. Dr David Greenberg and Dr Anthony Samuels were the experts appointed and they subsequently provided reports to the Court.

16. On 18 December 2009, following a final hearing, Fullerton J made an ESO for a period of 5 years.

Offending while on the ESO

17. On 7 July 2017, the defendant was convicted of two counts of indecent assault in contravention of s 61M(2) of the Crimes Act, in that on 15 October 2015 the defendant kissed the vaginas of two children aged two and four (having pulled down their pants and underwear), when he entered their residence to wash his hands in the course of providing volunteer assistance with the victims' father's car. These offences were "serious sex offences" under s 5(1)(a)(ii) of the CHRO Act.

18. After a severity appeal, the defendant received sentences totalling 7 years’ imprisonment commencing on 16 October 2015, with an effective non-parole period of five years and nine months. [1]

    1. The statement in the agreed facts that “the defendant received a total sentence of five years with a non-parole period of three years and 9 months” is not consistent with what is recorded in Hordern v R [2019] NSWCCA 138 at [79]; 278 A Crim R 353.

19. In addition, the defendant has been convicted of breaching his ESO as set out below.

1. On 22 June 2011, the defendant was convicted of one breach relating to declining to follow verbal directions given to him to return to his accommodation.

2. On 20 October 2011, the defendant was convicted of one breach relating to attending a church camp despite a direction not to and to remain at his accommodation.

3. On 28 March 2013, the defendant was convicted of a singular (rolled-up) charge of breaching his ESO by failing to attend counselling sessions on six occasions as directed, and by failing to adhere to a curfew on two occasions.

4. On 7 July 2017, the defendant was convicted of breaching his ESO, in addition to the indecent assault offending against the two victims aged two and four 15 October 2015, already referred to above.

5. On 8 August 2023, the defendant was convicted of two breaches of ESO offences relating to scheduling deviations.

Treatment

20. The defendant participated in the Custody-based Intensive Treatment (CUBIT) program from 3 June 2013 to 14 August 2013.

21. The defendant participated in the High Intensity Sex Offender Program (HISOP) from 26 May 2021 to 13 October 2022.

22. The defendant has also attended regular appointments with the Forensic Psychology Service (FPS) whilst in the community and he is currently attending monthly appointments.

Risk management and assessment

23. On 21 September 2023, Dr Richard Parker, Senior Psychologist, Serious Offenders Assessment Unit, Corrective Services NSW (CSNSW), prepared a risk assessment report, under s 9(3)(c) and (d) of the CHRO Act. The results of his assessments were as set out in the table below.

Risk Assessment Instrument	Date of Assessment	Score	Risk Assessment
LSI-R	16 August 2015	25 / 54	Medium category.
STATIC-99R	3 September 2021	8 – Level IVb	“Well above average risk”.
STABLE-2007	31 October 2021	18 / 26	High
Combined Static 99R and Stable- 2007	Level IVb	“well above average risk”

24. In Dr Parker’s opinion:

“… [the defendant] has demonstrated a willingness to sexually molest children in brief periods of opportunity and appears to have little awareness of the harm this causes.

Additionally, his introspection ability appears limited, so he has gained little appreciation of the harm caused by his offending, and methods to avoid future offending, despite completing an intensive program designed to address this.

…

[His] past convictions for sexually offences against children have all unfolded fairly quickly, so it is likely that any future offence would be similar, with [the defendant] taking an opportunity to offend when a child is (even briefly) unsupervised. Most sexual offenders tend to modify their offending process to avoid detection, such as through grooming children and/or adults to gain trust and unsupervised access to children. Whilst there isn’t any evidence of this in his detected offending, it is also possible he could develop a more sophisticated method of offending.”

Psychologists’ reports

25. The two psychologists who examined the defendant as a result of Schmidt AJ’s orders on 20 June 2024 provided reports as required, under s 9(3)(b) of the CHRO Act.

26. Dr Sally McSwiggan, neuropsychologist, in her report dated 5 August 2024 expressed the following opinions:

“[The defendant’s] risk will decline over time, the longer he spends in the community without reoffending. His supervision however can slow the autonomy one has in the community to have greater opportunity to reoffend and choose not to. …

…

[The defendant’s] static risk using the Static 99-R places him in the Well Above Average range, or the 4th out of 5 categories.

A significant reduction of reoffending (i.e., 10 percent) would be expected when people in Level IV are provided evidence-based correctional strategies in sufficient dosage (which has occurred for [the defendant] during HISOP). At best, however, the reoffence rate remains high, though reducing over time. It is an expectation that a substantial proportion of Level IV people will reoffend, with a greater risk of recidivism sooner after release.

…

For [the defendant] maintaining lifestyle stability, promoting permitted engagement with others, and having continued oversight of his movements and mental health would assist towards trying to cement the outcomes he has achieved since his last release, and what he wishes for his future.

The dynamic risk factors relevant in [the defendant’s] risk formulation were; emotional identification with children, deviant sexual preference, minimal capacity for relationship stability, poor supervision cooperation, sex as coping and lack of concern for others. He was assessed to have a High level of risk needs.

[The defendant’s] history demonstrated multiple failures of supervision and serious sexual offending while on an ESO. His ongoing risk of sexual reoffending could be managed, in part, under an ESO with monitoring of his schedule of movements and personal contacts.”

27. Dr McSwiggan made specific recommendations concerning many of the proposed conditions and supported a term of 5 years for an ESO.

28. Ms Durkin, a psychologist, provided a report dated 12 August 2024 and noted the defendant’s diagnosis of Autistic Spectrum Disorder (ASD). In her view, this diagnosis had generally been accepted by most practitioners engaged in his care over the years.

29. Ms Durkin referred to the defendant’s score on the Static-99R risk assessment tool and observed that:

“a total score of eight on the Static-99R … place[d] him at Risk Level IVb or Well Above Average Risk for being charged with/ convicted of another sexual offence within five years of now. This means he is considered a notably greater risk of reoffending than typical of offenders in the middle of the risk distribution. In routine correctional samples, out of 100 offenders, 98 would have a lower score, 1 would have the same score, and 1 would have a higher score than [the defendant] on the Static-99R.”

30. It was noted, however, that the Static-99R was not intended to be a comprehensive assessment and it could not tell whether or not the individual offender will fall into the percentage of offenders who sexually recidivate at the level of risk identified, or the percentage of offenders who do not. Dynamic risk factors which were described as particularly relevant to the defendant were identified as:

1. chronicity and diversity of sexual violence;

2. problems with minimization/denial of sexual violence;

3. problems with self-awareness;

4. antisocial attitudes;

5. problems resulting from child abuse;

6. sexual deviance;

7. problems with intimate and non-intimate relationships; and

8. problems with supervision.

31. Protective factors in the defendant’s case which potentially reduced the risk of reoffending were identified by Ms Durkin as including:

“•   [The defendant], while not working, is seeking work and he has been dynamic and adaptive in his thinking and behaviour concerning the acquisition of structured daily activities.

•   [The defendant] has sought out appropriate leisure activities including engaging in computer repair and attending a Men’s Shed. Further, he regularly engages with his church and is, by his account, an active member of the church community.

•   [The defendant] endorsed a stable and emotionally reciprocal relationship with members of his social network. While some of his relationships appear to be more mentoring in nature, he endorsed appropriate connections with peers, he is able to engage in supportive and prosocial relationships with these associates and he maintains regular contact with his peer group.

•   [The defendant] has a generally positive and prosocial connection with a social network.

•   [The defendant] is receiving and has ongoing access to offence specific treatment that is considered appropriate in meeting his criminogenic needs.

•   The available information indicates that [the defendant] is motivated to engage in treatment to manage his risk, although some issues are acknowledged in terms of the depth of his interaction and particularly concerning his motivation to reflect internally and express and discuss any areas of issue.

•   At present [the defendant] is reportedly receiving appropriate benefit from medication treatment to moderate his experience of sexual urges and he endorsed a willingness to remain compliant with that intervention.

•   [The defendant] has access to both formal (the ESO team) and informal (his associates) supervision for his conduct. The formal support is provided on a constant basis and results in monitoring of his whereabouts and his online access.”

32. Ms Durkin went on, however, to note that:

“many of [the defendant’s] protective factors relate to formal risk management strategies and are external to him, such as social connection and the reward he receives from that or treatment and supervision. However, more internal mechanisms identified as potential protective factors in the literature are less evident in [his] case and this highlights the benefit of maintaining his connection with appropriate services and supports, including with regards to supervision and monitoring.”

33. In Ms Durkin’s opinion:

“The available information indicates that [the defendant] remains in the high risk range for sexual re-offending and while he is not endorsing deviant sexual interests and he claims to not engage in any conduct of direct concern with regards to sexual offending against children, there is concern about his transparency in discussing his thoughts and feelings and his behaviour in that regard. Further, there is evidence that risk factors related to more internal factors have been largely unaddressed by [the defendant]. Indeed, his account at the current interview and in other contexts suggests that he largely relies on avoidance and suppression to manage his risk and that he has only a one notable strategy for managing deviant sexual thoughts (by occasionally using cognitively challenging and perspective taking) and he has had difficulties engaging in interventions to process, gain insight and actively address the factors that contribute to his risk offending cycle. While it is accepted that [the defendant] is committed to change and he does appear to genuinely want to avoid future offending, his difficulties engaging at a meaningful and positive level in both treatment and with services engaged in managing his risk appears to have undermined his ability to address those internal factors that appear to continue to underpin his risk.

[The defendant’s] account revealed a reasonable grasp of the how to implement basic, environmental or behaviourally based risk management strategies. However, he lacked sufficient insight to his own, internal, processes generally and specifically concerning his offending, precluding him from offering a sufficiently nuanced and comprehensive risk management strategy. For instance, he was well versed in how to moderate his risk in the community if he encountered a child, he described having established strategies for managing contact with children with the Men’s Shed and his church, and he expressed a clear understanding of the necessity for him to avoid all contact with children. He indicated also that he is always on guard and checking around him and checking the time to ensure he remains on schedule.”

34. Ms Durkin commented on various proposed conditions. Her comments included:

“With regards to monitoring and reporting, it is suggested that such is considered positive, although it is acknowledged that [the defendant] becomes distressed and stressed by the nature of some of his interactions with the supervising teams and he struggles to negotiate. As such, the manner in which such supervision is framed and managed for[the defendant] will influence how his risk is mediated (or not) by this strategy. [The defendant] appears motivated to continue reporting and being monitored but there is a balance that will have to be struck to ensure that the requirements of such do not overwhelm him to the point abiding by the conditions becomes a purposeless exercise for [him] or one that triggers uncontrollable negative emotions. …

There is a cognitive burden concerning the scheduling of movements requirement of the monitoring aspect of the Order, and this is a measure that [the defendant] has experienced some difficulties with. He indicated that his day or week can be adversely affected by being unable to obtain confirmation of changes to his schedule and it is noted that can lead to a lack of structure in his day, emotional dysregulation and/or excessive available time, all of which may elevate his risk. As such, any measures that can limit the emergence of such is recommended and will limit this condition becoming a counterproductive measure.”

35. Ms Durkin was of the opinion that the defendant had “not displayed notable improvements over the course of the previous ESO and, as such, from a rehabilitative perspective there is further to be gained [from another ESO] … A further Order will support [the defendant] to engage with professional services and not leave him in a position of relying only on social supports and the assistance of his church.”

Statutory preconditions for the making of an ESO

36. The parties expressly agreed that all statutory preconditions to the making of an ESO have been met, subject to the Court being satisfied that the defendant is an unacceptable risk within the meaning of s 5B(d) of the CHRO Act.

37. In light of that agreement and on the evidence before me, I am satisfied that: the defendant is a “supervised offender” within the meaning of s 5I of the CHRO Act; the prerequisites in s 5B(a), (b) and (c) of that Act are satisfied; and, the requirements of ss 5H, 5I, 6 and 7 had been complied with.

38. As to the making of an ESO in those circumstances, ss 5B and 5D relevantly provide:

“5B   Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

…

(d)  the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

39. The Court’s determination of the application for an ESO is to be made in light of the objects of the CHRO Act found in s 3 and is more specifically governed by s 9 of the Act. Section 3 is as follows:

“3 Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.”

40. Section 9 provides:

“9   Determination of application for extended supervision order

(1)  The Supreme Court may determine an application for an extended supervision order:

(a)  by making an extended supervision order, or

(b)  by dismissing the application.

(2)  In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A)  (Repealed)

(3)  In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a)  (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)  the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)  the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1)  any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e)  any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1)  options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)  the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)  without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g)  the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h)  the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1)  the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i)  any other information that is available as to the likelihood that the offender will commit a further serious offence.

(4)  In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

41. Furthermore, the term of an ESO is to be set in accordance with s 10 which relevantly provides:

“10 Term of extended supervision order

(1) An extended supervision order commences when it is made, or when the offender’s current custody or supervision expires, whichever is the later.

…

(1A) An extended supervision order expires at the end of—

(a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or

(b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.

…”.

42. In the present case, the defendant did not wish to be heard in opposition to the making of an ESO for five years.

Should an ESO be imposed?

43. In determining whether I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO, and whether to make such an order, I had regard to the safety of the community as the paramount consideration in accordance with s 9(2), the matters identified in the relevant paragraphs of s 9(3) of the CHRO Act and to the relevant provisions of the CHRO Act including those identified above and the two objects of that Act stated in s 3.

44. Since there was no dispute as to the appropriateness of the imposition of an ESO, I shall not refer in detail to all of the material I have considered. It is sufficient to note what has been set out above, the detailed summary of the OIMS case notes contained in the agreed facts, which I have taken into account but will not set out in detail in this judgment, the material in the report concerning management of the defendant in the community and the views of the magistrates and judge who have sentenced him.

45. In all the circumstances and given the absence of opposition, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision of an ESO and that it is appropriate to make an ESO for five years.

Conditions of ESO

46. The conditions that may be imposed as part of an ESO are governed by s 11 of the CHRO Act. The conditions must include the condition in s 11(2) that the defendant is not to leave New South Wales except with the approval of the Commissioner of Corrective Services and may include, but are not limited to, those specified in s 11(1) of the CHRO Act. Section 11(1) relevantly provides as follows:

“An extended supervision order … may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender—

(a) to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1) to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b) to make periodic reports to a corrective services officer, or

(c) to notify a corrective services officer of any change in his or her address, or

(d) to participate in treatment and rehabilitation programs, or

(e) to wear electronic monitoring equipment, or

(ea) to reside at an address approved by the Commissioner of Corrective Services, or

(f) not to reside in or resort to specified locations or classes of locations, or

(g) not to associate or make contact with specified persons or classes of persons, or

(h) not to engage in specified conduct or classes of conduct, or

(i) not to engage in specified employment or classes of employment, or

(j) not to change his or her name, or

(k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m) to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.”

47. The terms of s 11(1) make it clear that the conditions which may be imposed are ones with which an offender is directed to comply and do not include directions to persons other than the offender who is to be the subject of an ESO or ISO.

48. The conditions to be imposed are those that the Court considers appropriate in order to mitigate the unacceptable risk otherwise posed by the offender. The application of s 11 does not require that there must be a specific, demonstrated link to the past offending which is the basis of the ESO. Rather, the Court must be satisfied, having regard to the scope, purpose and objects of the CHRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [53] (Beazley P, McColl and Ward JJA).

49. In its summons, the State sought the imposition of 51 proposed conditions. By the final hearing many of the conditions were not the subject of dispute and the defendant was prepared to accept them. In addition, during the hearing the parties made substantial submissions concerning appropriate conditions and, in the course of interactions between the bench and the parties, the parties were able to reach agreement on some proposed conditions. Finally, the parties were given leave to provide to the Court, within two days after the hearing, a note of any further conditions which were not disputed and of any proposed conditions which were not agreed. A number of conditions were able to be agreed during that further time.

50. I have considered the undisputed conditions and am satisfied that they are appropriate in the circumstances to address the risk of future serious offending by the defendant and should be imposed, subject to some minor rewording of a small number of conditions and the renumbering of condition 10A as condition 11 (the original condition 11 having been deleted). It is not necessary to say more about those conditions which are not disputed.

51. The only proposed conditions which remained in dispute were conditions 7, 8 and 9 relating to movement scheduling.

52. It was not in dispute that it was appropriate in the defendant’s case for there to be conditions in some form which permitted a Departmental Supervising Officer (DSO) to require the defendant to provide, and adhere to, a schedule of movements. The purpose and appropriateness of such conditions in the defendant’s case were well established on the evidence. The dispute was as to the precise terms of such conditions.

The contending proposals were as set out in the table below.

The State’s proposed condition

The defendant’s proposed condition

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

7. If directed, the defendant must provide a schedule of movements subject to conditions 8 and 9 on the basis that the DSO reasonably attempts to consult with the defendant, including providing feedback to the defendant as to his current progress on scheduling, prior to the ESO team conducting bi-monthly scheduled reviews.

8. 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.

8. 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.

9. The defendant must not deviate from his approved schedule of movements except:

a. in an emergency;

b. for a toilet break; or

c. attendance at a petrol station for the purpose of purchasing petrol.

9. The defendant must not deviate from his approved schedule of movements except in the following circumstances:

- in the event of a deviation for the following purposes

i. Toilet break

ii. Attendance at a petrol station for the purpose of attending to service of tyres or obtaining petrol

iii. Extension or reduction of time at an approved location not exceeding 15 minutes

iv. The Post Office for no more than 15 minutes

v. An emergency

Condition 7

53. As to the competing proposals for condition 7, the form proposed by the State is the form of condition presently applying to the defendant, with which he is familiar. The form proposed by the defendant involves an attempt to put in place a structure whereby he receives feedback from a DSO as to his compliance with the condition and whether he is likely to progress to less restrictive stages of scheduling over time and at any particular point in time. This is sought in order to encourage rehabilitation and minimise the potential for frustration and a negative response to a lack of information and a lack of progress through the stages.

54. The background to the defendant’s proposal is found in the affidavit of Jessie Slattery-McDonald affirmed 14 August 2024 which concerned the management of individuals subject to an ESO. That affidavit included the following:

“33. The ESO monitoring stages may be progressed, regressed or varied. An offender will generally commence an ESO at stage one, which involves the offender being subject to electronic monitoring and restrictive schedules. The offender’s progress through the stages (and the use of electronic monitoring) is reviewed at a bi-monthly case plan review which is attended by the offender’s DSO and their unit leader. It is a requirement of policy that in each case plan review the DSO considers the appropriateness of the offender’s current electronic monitoring stage.

34. The offender’s progress through the stages is also considered at a [6 monthly] case management review meeting … At each management review meeting, he every offender who is subject to an ESO will have their case reviewed and the appropriateness of their stage of electronic monitoring will be considered. Any concerns regarding the management of each offender, specifically in relation to electronic monitoring, will be considered.…

35. In the long-term, it is not ideal for an offender who is approaching the end of an ESO to still be subject to electronic monitoring and schedules. At each case management review meeting, consideration is given to the length of the offender’s order and what progress will be needed to ensure the end goal of having the offender within the community without schedules and without monitoring for a period of time prior to the expiration of their ESO. It is desirable that the offender is not subject to either electronic monitoring or scheduling for as long as possible prior to the end of their ESO to see how they are progressing in the absence of electronic monitoring and scheduling and to identify any concerns or any need for additional supports.

…

46. Advance notification of proposed movements permit supervising staff to assess locations and activities notified by an offender and to consider whether they might raise risk concerns.

47. The requirement to provide notification of movements in advance can be flexibly applied. An offender is able to contact the DSO in relation to proposed late changes (e.g. an unanticipated appointment) and for adjustment to be made for such proposed changes. In many cases, schedules will have pre-approved locations such as a shop, doctor’s surgery or pharmacy. Should an offender wish to attend a pre-approved location, the offender would need to contact the EEM G, which would be able to grant the offender permission to attend the pre-approved location. Should an offender wish to attend a location that has not been pre-approved, they would need to contact a DSO and speak to 1 of the officers in the ESO team and seek approval. This can generally be done over the phone.

48. A schedule of movements also provides the means for random surveillance of an offender. The DSO or other offices of CS NSW will be able to conduct random compliance checks to whether the defendant is at the location that he has proposed at any particular time by referring to the schedule of movements.

49. In the defendant’s case, he has a well-documented history of opportunistic and impulsive offending and scheduling assists to quickly identify any deviations in this can be swiftly addressed with the defendant to interrupt any potential pathways of re-offence.

50. In addition, scheduling allows activities to be scrutinised and risk assessed in advance to ensure they do not expose the defendant to high-risk scenarios. An example of this would be a request to attend the movies. Scheduling provides the DSO with the ability to ascertain the cinema schedule to ensure the requested movie is age-appropriate and is not screening at the same time as a film targeted at prepubescent children where the cinema would likely be populated with minors.”

55. As noted above, Dr McSwiggan was of the view that the defendant’s risk would decline over time, the longer he spends in the community without reoffending. However, his supervision could slow the autonomy he has in the community to have greater opportunity to reoffend and choose not to. She also opined that based on the defendant’s presentation and history, there should be no ambiguity in his conditions. This was said to be necessary in order to avoid conditions or situations with his DSO which might be experienced by him as unreasonable and as a result set him against ESO officers.

56. There appears, therefore, to be a benefit in keeping the conditions simple and certain but at the same time seeking to provide encouragement for the defendant to progress through the stages of scheduling so that he can demonstrate his ability to choose not to reoffend in the community. Nonetheless, the safety of the community is to be the paramount consideration in relation to an ESO, under s 9(2) of the CHRO Act.

57. Furthermore, the defendant’s proposal seems to involve attempting to impose an obligation on a DSO to make reasonable attempts to consult with the defendant concerning his progress in relation to scheduling every two months. Such an approach does not appear to me to be consistent with the text or the scope and purpose of s 11 in that the conditions which may be imposed under an ESO do not include conditions with which someone other than the offender must comply. The evidence established that the defendant’s progress on scheduling was regularly considered, including at six monthly intervals, and a DSO would usually be prepared to discuss the defendant’s progress with him. Encouraging such discussions would be of some assistance in achieving the types of results referred to in Dr McSwiggan’s evidence. As a practical matter, such encouragement could be achieved by the conditions including a notation of what could be done in that regard.

58. Balancing these concerns and considerations, it appears to me that condition 7 should be in the same form as it is in the ISO imposed by Schmidt AJ, namely “7. If directed, the defendant must provide a schedule of movements”, but there should also be a notation that:

“The Court in imposing this condition 7 noted that the defendant’s progress through the stages of scheduling will be considered at the 6 monthly case management review meetings and, where the DSO considers it appropriate and practical, the DSO will discuss with the defendant after those meetings his progress or otherwise in relation to scheduling.”

Conditions 8 and 9

59. Conditions 8 and 9 concern the related topics of changes to, and deviations from, a schedule of movements approved by a DSO.

60. Both proposals for condition 8 involve approval being sought from a DSO for any changes. The difference is that the State’s proposal specifies a time limit within which the approval is to be sought and the defendant’s proposal has no time limit. Given the need for changes to a schedule of movements to be assessed, especially in terms of altered risk associated with any change, it appears to me that it is reasonably necessary to have a time limit within which changes should be requested and 24 hours does not seem unreasonable, especially given the flexibility provided by proposed condition 9 if an emergency should arise. Furthermore, the State’s proposal for condition 8 is the same as the existing condition under the ISO with which the defendant is familiar. Difficulties of the type that have arisen in the past where there have been delays in decisions as to whether changes to a schedule should be approved are sought to be addressed by the proposed amendments to condition 9 to take account of some common reasons for seeking a change to a schedule of movements. Thus, condition 8 should be as proposed by the State.

61. The proposals in respect of condition 9 seek to give the defendant a certain degree of greater flexibility in complying with his schedule of movements taking into account circumstances that are likely to arise. This is a worthwhile aim but it must be considered in light of the risk posed by the defendant especially in relation to opportunistic, rapid offending against children of the type that has occurred in the past. In my view, the more limited approach proposed by the State is to be preferred in that it allows greater flexibility in deviating from an approved schedule but maintains an adequate limit on deviation so as to minimise the risk of further serious offending. The State’s proposal would not exclude the possibility, were it considered appropriate and practical, for standing permission for certain deviations to, for example, a post office or other specified location, to be given by a DSO if the defendant’s progress in relation to scheduling justified it. Accordingly, condition 9 will also be as proposed by the State.

Orders

For all these reasons, the orders of the Court are:

1. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order ('the extended supervision order') for a period of five years from the date of the order.

2. An order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these orders.

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SCHEDULE TO THE ORDERS MADE ON 17 September 2024 IN RESPECt of the defendant timothy hordern

Conditions of supervision

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:

1. where he is or has been;

2. where he is going;

3. who he is with or has been with;

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

5. the nature of his associations.

4   [Deleted]

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

6   If directed by a DSO, the defendant must wear electronic monitoring equipment and must not tamper with, or remove, the equipment.

Schedule of Movements

7   If directed, the defendant must provide a schedule of movements.  The Court in imposing this condition 7 noted that the defendant’s progress through the stages of scheduling will be considered at the 6 monthly case management review meetings and, where the DSO considers it appropriate and practical, the DSO will discuss with the defendant after those meetings his progress or otherwise in relation to scheduling.

8   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.

9   The defendant must not deviate from his approved schedule of movements except:

1. in an emergency;

2. for a toilet break; or

3. for attendance at a petrol station for the purpose of purchasing petrol.

Part B: Accommodation

10   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.

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

12   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.

13   The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

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

15   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

16   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.

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

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

19   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:

1. day-care centres, pre-schools and schools;

2. amusement parlours, amusement parks and theme parks;

3. cinemas;

4. libraries and museums;

5. camping grounds and caravan parks;

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

7. pools, playing fields and sporting facilities;

8. activities intended for the entertainment of children; and

9. residences where he knows that persons aged under 18 years ordinarily reside.

20   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

21   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, on the basis that the DSO is to develop in consultation with the defendant a case management plan including employment opportunities if considered available and appropriate by the DSO.

22   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

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

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

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

3. 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)

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

1. 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.

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

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

27   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.

28   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

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

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

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

2. Email addresses;

3. Telephone numbers;

4. SIM cards;

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

6. Online gaming services;

7. Instant messaging services;

8. Service provider account numbers; and

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

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

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

2. Encrypted messaging applications or services;

3. Online gaming applications or services; and

4. Instant messaging applications or services.

32   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.

33   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 on the basis that if the request by the defendant for inspection of a device, the DSO is to provide a date on which the inspection would take place within 48 hours of the request and, if the date is to be postponed, the defendant is to be provided notice of that postponement within a reasonable timeframe.

34   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.

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

5. Applications;

6. Emails;

7. Text messages;

8. Electronic messages;

9. Call history;

10. Files or documents;

11. Photographs, images and videos; or

12. Internet or application usage and search history,

on the basis that, on receipt of a request by the defendant for the deletion of material, the DSO is to provide within 48 hours of the request a date on which a decision as to whether approval will be given will be notified to the defendant and, if the decision date is to be postponed, the defendant is to be provided notice of that postponement within a reasonable timeframe.

36   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 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.

38   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, participates 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: Search and seizure

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.

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

2. 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.

3. 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.

4. 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.

5. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him if disclosure of that information is relevant to the management of the defendant’s risk factors.

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Endnote

Decision last updated: 17 September 2024