State of New South Wales v Hordern (Final)

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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

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.

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

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.

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]

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

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

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

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

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.

In Dr Parker’s opinion:

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.

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

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

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.

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

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:

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

Ms Durkin went on, however, to note that:

In Ms Durkin’s opinion:

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

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.”

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.

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.

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

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:

Section 9 provides:

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

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

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.

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.

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.

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:

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.

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).

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.

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.

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

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.

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.

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:

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.

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.

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.

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:

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

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.

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.