State of New South Wales v Hordern

1. [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 Act 1900 (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. [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. [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. [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. [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. [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. [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

1. [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.

2. [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

1. [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.

2. [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].

3. [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.

4. [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].

5. [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.

6. [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.

7. [16]

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

The evidence establishes that an interim order must be made

1. [17]

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

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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.

15. [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.

16. [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

1. [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].

2. [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.

3. [35]

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

Orders

1. [36]

   For the reasons given, I order that:

   1. (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. (2)

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

   3. (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. (4)

      Pursuant to ss 7(4) of the Act: