State of NSW v Hordern [2009] NSWSC 982

New South Wales Supreme Court

CITATION : State of NSW v Hordern [2009] NSWSC 982

HEARING DATE(S) : 17 September 2009 JUDGMENT OF : R A Hulme J

EX TEMPORE JUDGMENT DATE : 17 September 2009

DECISION : Interim orders made

CATCHWORDS : CRIMINAL LAW - SERIOUS SEX OFFENDER - application for extended supervision order - preliminary hearing - order sought for examination by psychiatrists - release from custody imminent - interim supervision order for 28 days

LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 Crimes Act 1900

CATEGORY : Procedural and other rulings

Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 CASES CITED : Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 State of New South Wales v Manners [2008] NSWSC 1242 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327

PARTIES : The State of New South Wales (Plaintiff) Timothy Hordern (Defendant)

FILE NUMBER(S) : SC 14332/2009

COUNSEL : Mr D Kell for the Plaintiff Mr D Thiering for the Defendant

SOLICITORS : Crown Solicitor's Office Legal Aid Commission

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

R A Hulme J

17 September 2009

14332/09 The State of New South Wales v Timothy HORDERN

JUDGMENT 1 His Honour: This is an application pursuant to s 6 of the Crimes (Serious Sex Offenders) Act 2006 for an extended supervision order. That is ultimately what is sought in the summons that has been filed in the proceedings but today the plaintiff seeks certain interim orders. 2 S 6(1) provides that the State of New South Wales may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision. 3 In this case I am satisfied that the defendant is a "sex offender". The definitions in s 4 and s 5 of the Act provide, in effect, that a sex offender is a person who has at any time been sentenced to imprisonment following conviction for a serious sex offence. In this case the defendant was sentenced to imprisonment for an offence of indecent assault on a child under the age of ten years, (s 61M(2) Crimes Act 1900, an offence carrying a maximum penalty of imprisonment for ten years. Such an offence is, under the definition in s 5(1)(a)(i), a "serious sex offence". The defendant was in custody serving the sentence for that offence at the time the application was made. The summons in these proceedings was filed on 7 September 2009 and today an amended summons has been filed in court. The defendant remains in custody and will do so until his sentence expires on 27 September 2009. 4 S 6(2) provides that the application not be made until the last six months of the defendant's current custody or supervision. From what I said a moment ago that prohibition does not apply. 5 S 6(3) provides that the application must be supported by certain documentation. I am satisfied that those requirements have been fulfilled. 6 S 6(4) is to the effect that the application may indicate the kinds of conditions considered to be appropriate for inclusion in an extended supervision order. The summons and the amended summons in this case does so by annexing a schedule of conditions. 7 S 7 of the Act makes various provisions for pretrial procedures. Subsections (1), (2) and (3) provide for the timing and service of the application upon the defendant, disclosure to the defendant of the documents et cetera to be relied upon and the timing of the matter being heard. There is nothing of significance to be noted in relation to any of those matters. 8 Ss (4) of s 7 provides that if the court is satisfied: "That the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order" the Supreme Court must make orders appointing two qualified psychiatrists (or the like) to conduct separate psychiatric examinations of the defendant and furnish reports of the results and directing the defendant to attend on those examinations. Ss (5) provides that if the Court is not satisfied of the matters in ss (4) the Court is to dismiss the application. 9 In the State of New South Wales v Manners [2008] NSWSC 1242 at [9] per Johnson J, the purpose of a preliminary hearing such as in occurring today is to filter out unmeritorious applications at an early stage. His Honour also noted that it was to give the Court the benefit of expert opinion of two independent witnesses before making that final decision. 10 It is s 8 that makes provision for the Court to make interim supervision orders. S 8(1) provides the Court may make an interim supervision order if the current custody will expire before the proceedings are finalised and that the matters alleged in the supporting documents would, if proved, justify the making of an extended supervision order. 11 In this case, as I have said, the defendant's current custody will expire on 27 September and so I am satisfied that the first part of that provision has been established. As to the second part, the Court is required to proceed on the basis that the material in the supporting documentation is proved, which has been held to be similar to the requirement for a prima facie case consideration at committal proceedings: Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 at [6] per Price J. It does not involve the weighing of the material or predicting the outcome: Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98]. 12 Whether the material would justify the making of an extended supervision order requires consideration of the requirements of s 6 and s 9. I have already considered the provisions of s 6. As to the requirements of s 9 the question is whether the material filed in support of the application is capable of establishing: "To a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision": see s 9(2). The "high degree of probability" has been held to be a standard higher than the civil standard but lower than the criminal standard: Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27] per Bell J. "Likely to commit a further serious sex offence" has been held to require a degree of probability at the upper end of the scale but not necessarily exceeding 50 percent: see Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 at [89] per Giles & Ipp JJA. I note their Honours were there speaking in the context of s 17(3) of the Act but there is no reason to take any different approach to 9(2). 13 S 9(3) provides that in determining whether or not to make an extended supervision order the Court must have regard to the matters listed within that subsection in addition to any other matters it considers relevant. In this matter, the State of New South Wales has drawn my specific attention to six key factors which arise from the documentation that has been filed. They are set out in the very helpful written submissions of Mr Kell and I will quote the relevant portion: 1) the defendant is diagnosed as suffering from paedophilia (being paraphilic disorder) which has been assessed as chronic, intense and recurrent. 2) the defendant is considered to have outstanding treatment needs in terms of psychological intervention to address his sexual offending. 3) the defendant is assessed as being in the high risk category for sexual offending having regards to both actuarial and dynamic risk factors. 4) the defendant has a history of sexual offending against young girls. 5) the defendant's most recent sexual offence was committed whilst he was subject to a good behaviour bond imposed following a conviction for a previous sexual offence. 6) the defendant's most recent response to supervision was unsatisfactory in that his parole was revoked following unauthorised contact with a young girl in breach of a formal direction given by his supervising parole officer. 14 In addition to those matters, which, as I have said I am satisfied are made out in the material that has been filed, I note also that in the chronology that I have been provided with by Mr Kell this morning there is disclosed that when the defendant was under parole supervision following his release on parole on 22 March 2009, in a conversation with his supervising officer on 13 April 2009 concerning him being refused permission to attend his grandmother's house at which a 15 year old girl might be present, he told that officer: "I know you have got a job to do and all, but that is not how I work, for want of a better word. I go for really young (girls) so they don't know any better and 6 and seven-year olds. I can bribe them, but once they get to 8 or 9 they know what is going on … She is fifteen years old. She'd be on to me straight away, not that I am interest in that any way". 15 I note further, in the report of Carollyne Youssef, a forensic psychologist, or 2 April 2009, that the defendant was assessed as being in the high risk category relevant to other male sexual offenders on the STATIC 99 actuarial risk assessment instrument. Then, after considering a number of static and variable factors relevant to the defendant's risk of recidivism, Ms Youssef stated that the defendant appeared to fall in the "high range for sexual offending." She also said his symptoms were consistent with the DSM-IV diagnostic criteria for paedophilia. She recommended psychological treatment and a psychiatric assessment for suitability for anti-libidinal medication. I interpolate I have been informed by Mr Thiering, who appears for the defendant, that the defendant is now on such medication and has been so for the past 8 weeks. Ms Youssef, rather bluntly, stated that the defendant should have no unsupervised access to children under 16. 16 In a joint report of Marcelo Rodriguez, senior forensic clinician and Dr Andrew Ellis, consultant forensic psychiatrist both of the Community Forensic Mental Health Service, Sexual Behaviours Clinic of Justice Health dated 8 July 2009, the clinicians expressed the opinion that the defendant demonstrated a chronic, intense and recurrent paraphilic disorder, namely paedophilia, mostly against girls but inclusive of young boys. The defendant reported sexual arousal to the age group of 8 to 10 as well as much younger girls. The authors of that report were also of the opinion that the defendant would likely benefit from anti-androgen medication. They, similarly to Ms Youssef, were of the opinion that he would require psychological intervention, psychoeducation and possible further assessment of his social difficulties. 17 Then there is a very comprehensive report of Katherine Sahm, therapeutic manager, Forensic Psychology Services of the 13 August 2009. That report also indicates that the defendant is assessed as: "High risk category for sexual re offending." She described the defendant as having a paraphilic disorder, namely paedophilia with current deviant sexual fantasies and preoccupations towards female children as young as two years old. It was noted on the positive side of things that the defendant appeared to genuinely wish to not re offend and was motivated to change. Various recommendations were made by Ms Sahm in the event that the defendant is released in the community. They include that he attend a sex offender treatment programme, that he continue in psyhchiatric care so that he may benefit from psycho pharmacological intervention to control his sexual arousal to children, that he be stabilised on medication prior to release and finally that he not be left in the company of children under the age of 18 unaccompanied. 18 In conclusion I am satisfied to the standard required, as explained in the authorities I have earlier mentioned, that the material filed by the plaintiff establish matters which would, if proved, justify the making of an extended supervision order. Given that his current custody will expire before the proceedings are determined, it is appropriate that an interim supervision order be made. 19 Accordingly, I make the orders set out in the document headed: "Orders" which was handed up in court today being orders 1, 2, 3, 5 and 6. I have initialled the document and dated it today. **********