State of New South Wales v Biber (Preliminary)

Catchwords: HIGH RISK OFFENDER – preliminary hearing – serious sex offender – application for interim supervision order – where nature of one condition contested by defendant – interim supervision order imposed

Legislation Cited: Crimes Act 1900 (NSW), s 66C
Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 5, 5B, 6, 7, 10A, 5I
Criminal Code (Cth), ss 474.17, 474,26

Cases Cited: State of NSW v Biber (No 2) (Final) [2021] NSWSC 104
State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Andrew Biber (Defendant)

Representation: Counsel:
W Bruffey (Plaintiff)
W Tuckey (Defendant)
Solicitors:
NSW Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2025/00404394

JUDGMENT

1. By way of summons filed on 21 October 2025, the State of New South Wales (the plaintiff) seeks, by way of final relief, that Mr Andrew Biber (the defendant) be subject to an extended supervision order, or ESO, for a period of 18 months subject to conditions.

2. In the interim, and before the Court today, is an application for an interim supervision order (ISO), pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for a period of 28 days, as well as orders for the appointment of two qualified psychiatrists and/or psychologists to conduct separate examinations of the defendant, and to furnish their reports to the Court pursuant to s 7(4) of the Act.

3. The defendant is currently under the supervision of an ESO which was imposed by Button J (first ESO). As before Button J, the unacceptable risk contended for is the risk of the defendant committing another “serious sex offence”. The first ESO commenced on 19 February 2021 for a period of 18 months. It was suspended twice whilst the defendant spent time in custody for further offending. The first ESO is now due to expire on 12 February 2026.

4. The defendant is also currently on parole, serving the balance of a sentence for offences of possess child abuse material and failing to comply with the first ESO. He is supervised by the Young Community Corrections Office, having most recently been released from custody on 13 October 2024. That sentence will expire on 13 February 2026.

5. The defendant does not contest the imposition of the ISO and concedes, for the purposes of the ISO, that the statutory preconditions have been satisfied. The only contest that was remaining this morning was that the defendant was seeking the amendment of one of the proposed conditions. All other amendments which had been sought by the defendant have been the subject of agreement between the parties.

6. Even though the defendant is not contesting the imposition of the ISO, the Court is still to be satisfied it is an appropriate order to make.

7. The plaintiff relies on the affidavits of James Palmer affirmed on 20 October 2025 and 11 December 2025, with their accompanying exhibits; the affidavit of April Brennan affirmed 2 February 2026 with annexures; and the affidavit of John Banton affirmed 2 February 2026.

8. The defendant relies on the affidavits of Elizabeth Tsitsos affirmed 20 January 2026 and 2 February 2026, together with their annexures.

9. The plaintiff was represented at the hearing by William Bruffey, and the defendant by Will Tuckey. I am grateful for their assistance and that of their instructing solicitors. Their approach has allowed this matter to be dealt with efficiently.

A brief background

10. The defendant is a 39 year old man. His childhood was generally stable, with no trauma, nor history of abuse. He suffered, however, from a number of health issues from a young age including spina bifida and epilepsy (with the last seizure at about 19 years old). He left school around the age of 13 to 15 years, having been expelled or suspended a number of times prior to finally leaving school, and then being homeschooled by his parents.

11. The defendant has also been diagnosed with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Personality Disorder (Antisocial and Borderline features) and Substance Abuse (now in remission). He has received the Disability Support Pension from the age of 16 on the basis of his various physical and mental health issues. He is also currently supported by the National Disability Insurance Scheme (NDIS).

12. Until about a week ago, the defendant had been residing alone in private accommodation purchased for him by his parents. Very regrettably, on 29 January 2026, this house burnt down, after a fire had destroyed an elderly neighbour’s home which spread to his home, and he is now living in temporary motel accommodation.

13. He regularly receives support and visits from his parents, and I note that his father is online with the defendant today. His NDIS support allows for social and economic assistance with daily living and community participation for four hours, three times a week.

14. The defendant has had numerous intimate relationships with women over the years, including two serious relationships lasting five years and four years respectively. He has a 13 year old daughter, born of a previous long-term relationship, who resides with her maternal grandmother in Western Sydney, and with whom he has had supervised contact. The daughter, however, has recently indicated that she does not wish this to continue, having learnt of his offending history.

15. The defendant has a history of serious sexual offending against female children between the ages of 13 and 15 in an online context. His criminal history includes charges and/or convictions for sexual, violent, weapons, property, driving, public order, larceny, shoplifting and drug related offences.

The index offence – “serious sex offences”

16. The offences which enliven the court’s jurisdiction are four counts of use carriage service to procure person under 16 years for sexual activity in contravention of s 474.26(1) of the Criminal Code (Cth). These are defined as serious sex offences under s 5(1)(b5) of the Act. The defendant was also convicted at the same time of two counts of use carriage service to menace/harass/offend in contravention of s 474.17(1) of the Criminal Code, and for failing to comply with his reporting obligations under the Child (Protection Offenders) Registration Act 2000 (NSW) (with a further nine counts of this offence taken into account on a Form 1).

17. In brief, the facts of these offences are that between 1 July 2014 and 16 December 2016, whilst on the Child Protection Register (CPR) and aged approximately 28 years old, the defendant engaged in online communications with eight children under the age of 16. He contacted females between the ages of 13 and 15 on Facebook and over the phone and sought to have sexual contact with them. The defendant failed to report this contact in breach of his CPR obligations and failed to report online accounts he had in names other than “Andrew Biber”.

18. The defendant’s contact with four of the victims (predominantly via Facebook and Facebook Messenger) were found to have been with the intention of procuring them for sexual activity. He made sexualised comments and requested the victims to send him pictures of their breasts and their genitals. He also sent them pictures of his penis and offered them drugs or money to meet up with him.

19. In relation to another two victims, aged 14 and 15, the defendant sent messages which were harassing and offensive.

20. The defendant was arrested, charged and taken into custody on 19 December 2016. He was sentenced by Buscombe DCJ on 23 November 2017 to a term of imprisonment of 2 years and 6 months, to commence on 16 June 2017 and expire on 15 December 2019, to be released on a recognisance release order of 15 months to commence after serving 1 year and 3 months. He was released to the community on the recognisance release order on 15 September 2018.

21. In a Risk Assessment Report dated 14 September 2020 prepared by Dr Samuel Ardasinski, it was observed that the defendant’s index offending demonstrated a consistent trajectory in relation to each victim, including the initial point of contact being a request to ‘friend’ the defendant over Facebook; sexualised comments then being introduced into subsequent conversations; requests by the defendant for the victims to send intimate photos, with some photos of penises being sent in return by the defendant; with several victims, requests to meet in person, with incentives such as money, cigarettes or drugs; and when the victims had rejected the defendant’s advances early on, threats to send “dick pics” in retaliation or engaging in unwanted descriptions of fantasies involving the victims.

Subsequent offending and imposition of first ESO

Subsequent offending

22. Having been released from custody on 15 September 2018, on 4 November 2019, the police visited his home and the defendant provided his phone to the police to be checked. Police found an HTML file saved to his phone which opened a website called […] which contained over 100 images of child abuse material depicting real pre-pubescent children engaged in sexual acts and images focussing on the child’s genital region. This included images of young female children and teenagers being sexually assaulted, posing in a sexual manner and performing sexual acts. The defendant was also found to have a Tinder account with a username of ‘Dre’ about which he had failed to notify police in contravention of his CPR obligations.

23. The defendant was arrested and charged with an offence of possessing child abuse material and failing to comply with his reporting obligations under the CPR. On 17 April 2020, the defendant was sentenced to an aggregate sentence of one year and two months’ imprisonment to commence on 5 November 2019 and expire on 4 January 2021. A non-parole period of five months and 13 days was imposed which concluded on the date of sentence. This conduct also amounted to a breach of the good behaviour condition of the recognisance release order imposed by Buscombe DCJ. This breach was dealt with by Buscombe DCJ on 15 April 2020 by the extension of the period of good behaviour for a period of 18 months from 13 December 2019 until 13 June 2021.

Imposition of first ESO

24. On 28 October 2020, the plaintiff filed a summons seeking an ESO in respect of the defendant. An ISO order was made by Bellew J on 20 November 2020, and on 19 February 2021, Button J imposed the first ESO for a period of 18 months. Button J found the defendant posed an unacceptable risk of further sexualised contact with persons under the age of consent by way of the Internet.

25. Since the imposition of the first ESO, the defendant has been charged with criminal offences on two further occasions.

First group of offences charged after imposition of first ESO – February 2021

26. On 19 February 2021, the same day the first ESO was imposed, the defendant was arrested, charged and remanded in custody in relation to offences of possess child abuse material, contravene Child Protection Prohibition Order (CPPO), use carriage service to menace/harass/offend and five counts of failing to comply with the ISO imposed by Bellew J on 20 November 2020. The facts underpinning these offences were as follows:

(a) On 5 February 2021, the defendant added his ex-partner on Facebook where they exchanged messages on the platform, which included the defendant making various derogatory comments about his ex-partner’s 17 year old daughter’s physical appearance, alleged behaviours including sexual preferences and substance use. (b) The defendant then sent several images of the 17 year old, seemingly obtained from her Facebook profile to his ex-partner, along with a photograph of a transexual person exposing their penis. When his ex-partner indicated that she planned to report his behaviour, the defendant deleted the messages without being aware that she had already saved them. (c) The defendant was charged with breaching his ISO by deleting material from his device and sending messages via the Internet without the approval of the Departmental Supervising Officer (DSO) and a breach of his CPPO by failing to be supervised while using the Internet. (d) On 17 February 2021, while at Parramatta Local Court, the defendant was observed by police to be using a tablet and watching YouTube videos in breach of the first ISO. (e) On 19 February 2021, police executed a warrant at the defendant’s home and located “a large amount” of pornographic videos and images on various devices. This constituted a breach of an ISO condition. (f) A USB was also found to contain child abuse material, including images of pre-pubescent female children, specifically a female child aged between 5 and 7 years old holding an adult penis, being orally penetrated by an adult penis, a 5 year old female vaginally penetrated by an adult penis, a 5 year old female touching her vagina, and an adult male standing on a child between 2 and 3 years old. (g) Finally, an iPod was located capable of accessing the Internet and storing electronic date, and the defendant declined to provide the password during the search. Further, he had not declared this device to his DSO.

27. On 22 June 2021, the defendant was sentenced at Young Local Court to an aggregate term of imprisonment of three years with a non-parole period of two years.

28. On 6 December 2021 the defendant successfully appealed this sentence, and the sentence was reduced to two years and nine months expiring on 17 February 2024, with a non-parole period of 15 months, ending on 17 August 2022.

Second group of offences charged after imposition of first ESO – October 2022

29. On 14 October 2022, the defendant’s premises were searched in accordance with his ESO conditions. In a Mariah Carey DVD case, 20 photographs with pornographic content were located. Five memory cards wrapped in tape located hidden in a picture frame behind a photo of the defendant’s daughter contained 60 images of child abuse material. This consisted of pictures and videos of children in sexual poses and performing sexual acts including penile and vaginal intercourse. The children appeared to range from two years old to 15 years old. The memory cards also contained images and videos of adult pornographic content in contravention of an ESO condition, with some 433 images and 209 video files.

30. During the search, the defendant claimed not to know the passwords to some of the devices in contravention of another condition of his ESO which required him to inform his DSO of all devices and their passwords.

31. The defendant was charged with possess child abuse material and three counts of failing to comply with his ESO (two of which were taken into account on a Form 1).

32. On 2 November 2023, the defendant was sentenced to an aggregate term of imprisonment of three years, with a non-parole period of one year and eight months, commencing on 14 February 2023. The non-parole period ended on 13 October 2024 and the head sentence will end on 13 February 2026.

Relevant prior offending

33. In addition to the ‘serious sex offences’ identified above, the defendant also has a prior conviction for another ‘serious sex offence’.

34. In July 2011, when he was 25 years old, the defendant had penile/vaginal sexual intercourse with a 15 year old girl he met at a train station. The defendant pleaded guilty to the offence of ‘have sexual intercourse with a person of or above the age of 14 and under the age of 16 contrary to s 66C(3) of the Crimes Act 1900 (NSW) in relation to which he was sentenced on 5 April 2012 to a supervised s 9 bond for 18 months. He was also placed on the CPR.

35. The statement of agreed facts can be summarised as follows. On 2 July 2011, the defendant approached the victim, then 15 years old, at Fairfield railway station, asking for a cigarette and struck up a conversation. They exchanged contact details. Two days later, the victim sent the defendant a ‘friend request’ and the two began to correspond using Facebook as well as texting on mobile phones. The victim’s carer became aware of the contact and told him on 7 and 8 July to “back off” informing him of the victim’s age.

36. On 10 July 2011, the defendant and an associate arranged to meet the victim at Marayong train station from where they travelled to the defendant’s home at Fairfield East and they watched movies together until about 10pm. After the defendant’s associate left at around 10pm, the defendant and the victim engaged in penile-vaginal intercourse in his bedroom. The defendant asked the victim to leave after he had ejaculated, however, she had no way of getting home so stayed the night. She was dropped off to the train station the next day around 4pm and returned home.

37. Police attended the victim’s residence on 12 July 2011 in relation to an unrelated issue and were informed by the victim’s carer of the correspondence between her and the defendant. The victim disclosed the sexual contact with the defendant to police.

Treatment and programs

38. During his most recent incarceration, the defendant completed the Explore, Question, Investigate, Practice, Succeed (EQUIPS) Foundation program on 8 May 2024 and the EQUIPS Addiction program on 28 June 2024.

39. He was deemed unsuitable for the High Intensity Sex Offender Program (HISOP), in custody due to difficulties with group environments and learning impairments. On 10 October 2024, prior to his release on parole, the defendant was referred to Forensic Psychology Services for the HISOP, but was deemed ineligible due to residing remotely.

40. The defendant was also deemed ineligible for community sex offender programs due to residing outside of the metropolitan area.

41. He was referred to the Treatment and Rehabilitation Clinic on 10 October 2024, for targeted intervention to address problem sexual behaviours, with an initial assessment on 6 December 2024, followed by two sessions. His engagement with the service was subsequently suspended and he was discharged in March 2025.

42. The defendant has also been referred to a CSNSW Senior Psychologist for personalized intervention to assist him to manage high risk situations. As at 18 July 2025, he had completed ten sessions. Due to his physical health and opioid treatment his engagement in these sessions has fluctuated.

The statutory preconditions

43. The Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. In an earlier judgment in the State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561, I set out a summary of the statutory scheme at [7]-[18] and I refer to those portions again. I have taken those matters into account.

44. As noted, there is no contest that the statutory conditions have all been satisfied and I am independently satisfied that the statutory pre-conditions have been met. In particular, the defendant is an offender as defined in s 4A of the Act as he is over 18 years of age and has served a full-time sentence of imprisonment following a conviction for a “serious sex offence”. He is a “supervised offender” as defined in s 5I of the Act, on a number of bases. The application is made within the last nine months of the defendant’s current supervision which expires on 13 February 2026, and it is supported by the documentation required by s 6 of the Act.

45. Further, I am of the view that if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, they justify the making of an ESO (ss 10A(b) and 5B(d) of the Act). In particular, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if he is not kept under supervision under the order.

46. In coming to this satisfaction, I have taken into account the material before me, including the defendant’s consistent, lengthy criminal history, including his longstanding pattern of sexual interest in females under the age of consent and his offences of a sexual nature committed whilst subject to an ESO in 2021 and 2022 involving child abuse material. Further, the 2025 Risk Assessment Report assessed the defendant as remaining in the high or well above average risk of committing further sexual offences. In addition, the 2025 Risk Management Report includes the view that the defendant remains effectively an untreated child sex offender, and that his ongoing supervision and participation in programs is essential for the defendant to gain insight into his risk factors and address his offending. Further, I note that his overall compliance with the first ESO has been poor, albeit it is also noted that he has been relatively stable since being released to parole on 13 October 2024. In any event, the defendant is yet to achieve a prolonged period in the community without offending. His recent improvement is relatively new and may not be sustained if the support in the community is not continued.

47. I also have regard to the views of the sentencing judge for the index offending that the defendant’s prospects for rehabilitation were no more than guarded and that the defendant had very little insight into the true nature of his offending. I also note the more recent sentencing remarks, from November 2023, including the sentencing judge’s recommendations “in the strongest of terms” that the defendant’s release to parole should be supervised and should include obeying all reasonable directions relating to ongoing treatment and counselling for substance abuse issues and mental health issues.

48. It is appropriate therefore to make orders 1 and 2 as sought by the plaintiff in the summons, together with the ancillary relief sought in order 5. As order 2 makes clear, the ISO is subject to conditions and the plaintiff has proposed a number of conditions.

The contested condition

49. The defendant originally sought the amendment of a number of the proposed conditions but by the time of the hearing, agreement had been reached in relation to all but one. The only condition that was in contention before me this morning was condition 52 and following discussion that condition has now essentially been the subject of agreement. I am of the view that the agreed version of that condition is appropriate.

50. The original proposed condition was:

"You must agree to the disclosure of your criminal history to any health care professionals that are treating you."

51. The defendant submitted to the Court that not only is the term "health care professionals" not defined in the Act, but the condition went beyond what was required to assist any relevant health care professional providing appropriate therapy to the defendant.

52. The plaintiff originally pressed the original version but has agreed to an appropriate compromise which agrees in part with one of the versions of the defendant's proposed variation. This version of the condition is appropriate in my view because it allows relevant health professionals to provide appropriate treatment with knowledge of the criminal history but also does not mean that the defendant has to disclose his criminal history to people who would not be providing relevant therapy.

53. Concerns that had been expressed in relation to young people in waiting rooms, for example, or perhaps in group therapy (and it was that latter concern which was referred to by Button J at [82] in State of NSW v Biber (No 2) (Final) [2021] NSWSC 104) are appropriately mitigated by other conditions. Further, the current form of condition 52 means that any group therapy would be covered by the condition.

54. The version of proposed condition 52 that I therefore impose is this:

“You must agree to the disclosure of your criminal history to any health care professionals that are treating you. This condition does not include podiatrists, optometrists or dentists.”

55. Otherwise, I am of the view that the remaining conditions are appropriate.

Orders

56. Accordingly, I make the following orders:

57. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act):

(a) Appointing two qualified psychiatrist or psychologists (or any combination of two such persons) to conduct separate examinations of the defendant 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) Directing the defendant to attend those examinations.

2. An order:

(a) Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order (the interim supervision order); (b) Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days commencing upon the expiry of the defendant’s current Extended Supervision Order; and (c) Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment.

3. An order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Schedule of Conditions of Supervision - Biber

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