State of New South Wales v Biggers

The Legislative Scheme

1. The primary object of the 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: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).
2. The Court's power to make an ESO is discretionary. Section 5B of the Act provides that the Court may make a ESO if four preconditions are made out. It is common ground that the following three preconditions are satisfied: 1. Mr Biggers is an offender who is serving or who has served a sentence of imprisonment for a "serious offence" as defined in s 4 of the Act: s 5B(a). 2. Mr Biggers is a supervised offender within the meaning of s 5I of the Act: s 5B(b). 3. The present application has been made in accordance with s 5I of the Act: s 5B(c).
3. The fourth condition under s 5B comprises the substantive test for consideration before this Court. It provides that in order to make an ESO, the Court must be "satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept under supervision under the order": s 5C(d). It is conceded by the defendant that requirement is met. That concession is appropriately made and on my assessment of the evidence tendered, and for the reasons that follow, I am satisfied to the necessary high standard that Mr Biggers poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

The evidence

1. The State tendered the following evidence: 1. Two affidavits of Lucy Nichols, solicitor, affirmed 17 February 2023 and 16 March 2023. 2. Affidavit of Nichole Ahern, chief psychologist of Intensive Therapeutic Programs at Corrective Services NSW sworn 16 March 2023. 3. Affidavit of Angela West, General Manager of the State-wide Classification and Placement Group, affirmed 16 March 2023. 4. Two affidavits of Alexandra Burkitt, solicitor affirmed 19 June 2023 and 27 June 2023. 5. The report of Dr Dayalan, psychiatrist dated 9 June 2023. 6. The report of Dr Yousseff, forensic psychologist dated 12 June 2023.
2. The defendant tendered a bundle of certificates attained by the defendant from TAFE NSW and Corrective Services directed to the defendant's pursuit of work and employment competencies whilst in custody. There was a focus on the defendant's position on the role of work in helping him rehabilitate himself back into the community. He wants to return to work as a truck driver which is work he has done in the past.

Consideration of s 9(3) factors

1. In determining whether or not to make an ESO, the safety of the community is the paramount consideration: ss 9(2) and 3(1) of the Act. When determining an application, the Court may have regard to any matter it considers relevant, but must take into account the mandatory considerations set out at s 9(3) of the Act.
2. The defendant was assessed in person by Dr Dayalan on 26 May 2023 and Dr Youseff on 24 May 2023. They are the Court appointed experts tasked to examine Mr Biggers and assess risks entailed in his release and here to assist in consideration as to how those risks can be managed in the community: (s 9(3)(b)).
3. The assessments were very thorough. At the time of the assessments Mr Biggers had been in the community on an ISO for a little over one month and was managing living in the Community Offender Support Program ("COSP"), setting up arrangements for work and independent living.
4. Dr Youssef described potential risk scenarios: "From an analysis of offence history, assessments, and input during interview, it is possible to propose a hypothetical potential risk scenario pertinent to the range of risk factors most relevant to a particular offender. Were Mr Biggers to sexually reoffend, he may initially engage in an opportunistic offence, though the subsequent interactions are likely to be planned; Mr Biggers' offence history suggests that he is likely to engage in repeated acts against the same victim. The victim would likely be an adolescent female, who is known to him in some capacity. The offending behaviour would most likely be intrusive in nature (e.g., sexual touching, sexual intercourse) after a short period of interaction, that is likely to be sexualised and intense. Mr Biggers is unlikely to use threats and/or violence to gain victim compliance and may instead use psychological coercion and enticement such as making promises, using flattery and/or being persistent in his requests. The offence is likely to occur in a secluded location like a room or within some other enclosed place where he is alone with the victim or can isolate them. In an alternative scenario, Mr Biggers may offend against a pre-pubescent female child, if provided the opportunity to be alone with them, though his preference seems to be adolescent and/or adult females. In the less likely event of contact offences against a child, the offending may be intrusive (e.g., rubbing the vagina) and is likely to recur if he has regular access to the victim. It is likely to occur in an enclosed, secluded place, such as a bedroom. Mr Biggers' offending is likely to be precipitated by a perceived sense of rejection, betrayal, undermining, or invalidation, by a woman, usually by an intimate partner. Overall, the factors most likely to provide an exponential escalation in Mr Biggers' risk of reoffending include difficulty coping and poor problem-solving; negative emotional arousal; sense of entitlement, sexual or otherwise; and interpersonal difficulties giving rise to a sense of rejection, distrust and/or hostility. Like most people who offend, Mr Biggers' history does not suggest that he would sexually act out at every opportunity. There are likely to be instances where Mr Biggers shows better judgement, or his offence cycle is interrupted by an external factor. Risk is best considered in contextual terms rather than conceptualised purely as constituted by individual deviancy (Ward, 2010). Thus, an adequate risk management plan would need to consider an individual's particular lifestyle and environment at a given point in time."
5. Dr Youseff stated that whilst there were limitations in the prediction of risk using the risk assessment tools, using the Static 99R, the defendant scored 5 which placed him into the above average risk level. It was noted by Dr Dayalan that "the predicted five-year recidivism rate for individuals who score 5 is 21.2%. In routine samples with the same score, the 5-year sexual recidivism rates between 11.7% and 14.1%, meaning that out of 100 sexual offenders with the same risk score, between 12 and 14 would be charged or convicted of a new sexual offence after 5 years in the community.
6. Using the Stable 2007, another risk assessment tool, Dr Dayalan noted that dynamic risk factors relevant to Mr Biggers's risk formulation are lack of significant social influences, capacity for relationship stability, general social rejection, impulsivity, poor cognitive solving, negative emotionality, sex drive, deviant sexual interests and cooperation with supervision. Mr Biggers was assessed to have a high level of stable dynamic risks and needs: (s 9(3)(d).
7. Dr Youssef addressed the defendant's lack of participation in group treatment programs whilst in custody at pars 72 to 78 of his report: (s 9(3)(e). Whilst this history indicates in some respects an uncooperative approach to rehabilitation, it is a clear antipathy to group programs. There are other ways Mr Biggers's needs for rehabilitation can be managed and addressed, and that is being pursued in the community with a one-on-one approach. This has been found by Mr Biggers to be helpful in the past.
8. Dr Dayalan also carried out a thorough document review and personal assessment. The following extracts from Dr Dayalan's report are instructive: "Pre-release report dated 22 February 2021 noted that there were contradictory statements regarding Mr Biggers' presentation in custody with comments about being proactive, hardworking and compliant alternating with comments of being hostile, abusive and belligerent. He had made threats to report staff members to authorities. Mr Biggers had sought psychological intervention in June 2020 and in January 2021. Whilst in custody, he had completed the Health Survival Tips and Aboriginal Cultural Strengthening program. (Page 12). …. The dynamic risk factors judged as relevant to Mr Biggers included problems with mental illness, stress, coping and substance use; extreme minimization or denial of sexual violence, negative emotionality; problems with self-awareness and treatment; cooperation with supervision; chronicity of sexual violence, sexual deviance and use of psychological coercion; sex drive/sexual preoccupation; problems with intimate relationships (associated with unhelpful attitudes towards women) and problems with non-intimate relationships and general social rejection/loneliness. (Page 13). …. The nature of the symptoms reported would indicate that Mr Biggers suffers from complex post-traumatic stress disorder. It is however, noted that on psychometric testing Mr Biggers had been assessed to have a tendency to exaggerate symptoms and some caution needs to be exercised in making a diagnosis largely based on symptoms reported. Nevertheless, deficits in interpersonal functioning, problems with anger management and emotional dysregulation are features of complex PTSD that have been noted from reviewing the documents provided. Mr Biggers had exhibited conduct problems in childhood which included running away from home, fighting, stealing, assaulting a school authority figure, truanting and use of substances. In adulthood failure to conform to social norms, poor impulse control, irritability and aggressiveness have been chronic features. Denial of some of the offending behaviour that he has been convicted of, and externalisation of blame is noted. He also displays affective instability and a pattern of unstable relationships. Mr Biggers probably has a personality disorder with antisocial and borderline traits. (Page 14). …. Mr Biggers' dynamic risk factors relevant to his risk of sexual offending do not appear to have been addressed. It is unlikely that Mr Biggers will engage in any treatment or rehabilitation on his own accord. The risk factors relevant to his risk of committing a serious sex offence are unlikely to be addressed if he was placed in the community without any order being imposed. (Page 18). …. The pattern of reoffending indicates that the victims of Mr Biggers are known to him. Therefore, restrictions on association with children/vulnerable individuals and conditions necessary to monitor his compliance with the restrictions are important to managing his risk of committing a serious sex offence. Given his history of breaching orders and reoffending whilst under legal orders, the conditions may need to be comprehensive at least in the early stages of his transition into the community. (Page 20 - regarding conditions to be imposed)."
9. During the term of the ISO there have been no reported breaches of his ISO conditions. Given this position, I am satisfied that Mr Biggers is capable of complying with the obligations of an ESO: (ss 9(3)(e) and 9(3)(f). The notes tendered with Ms Burkitt's 19 June 2023 affidavit show a good level of communication with supervisors, including honest feedback and identification of stressors and problems Mr Biggers is experiencing. This demonstrates good insight on his part and a high level of cooperation, despite some initial frustration and some minor setbacks encountered in this reintegration process.
10. As a result of the defendant's conviction for sexual offending in 2013, he was identified as a Registerable Person and made subject to the requirements of the Child Protection Register ("CPR"). Despite being subject to these requirements, the defendant breached his reporting requirements on 5 occasions between 1 January 2015 and 15 April 2016: (s 9(3)(g)). I consider Mr Biggers well-motivated not to make any similar mistakes.
11. I have had regard to the other materials tendered on this application including the extensive materials contained in Exhibit LN-1 to the affidavit of Lucy Nichols of 17 February 2023. I consider there is positive trend in Mr Biggers's response to supervision. The attitude taken to this application for supervision demonstrates insight into the fact that Mr Biggers needs support in the community but he seeks some flexibility to allow him to pursue employment of the type he has had in the past.
12. I accept the plaintiff's submissions as to the nature and extent of the unacceptable risk presented by Mr Biggers as comprising: 1. The nature of the defendant's sexual offending is such that the harm of that risk manifesting is of significant gravity, particularly when regard is had to the number of occasions, three, in which he has offended against different victims, five; 2. Although the defendant has largely accepted responsibility for his offending, he has not done so completely with the index offending; 3. The defendant has only shown a superficial acceptance of responsibility and displays very limited insight into his offending behaviour and the effect that his offending has had on his victims; 4. The defendant has not engaged in any custody based treatment options such as HISOP or RUSH, despite being offered the opportunity to do so; and 5. The defendant's risk of sexual offending arises, at least in part, as a maladaptive response to stresses in his life, and in particular when he has been faced with stressors in the form of issues arising in his personal relationships, and he has not yet developed a more positive response to those stressors.
13. Having said that, in my view Mr Biggers is showing strong signs towards positive rehabilitation and conditions should be fashioned to recognise that important consideration.

Determination of appropriate conditions

1. The form of conditions was the subject of ongoing discussion between the parties prior to and during the hearing. There was substantial agreement. The conditions that remained in dispute comprised: the form of the schedule of movements conditions needing to allow for contingencies of employment and a potential "sunset" clause: (plaintiff's proposed conditions 5, 6 and 7), visitors: (plaintiff's proposed condition 13), non-association: (plaintiff's proposed condition 29), whether disclosure of Mr Biggers's criminal record should be limited to circumstances relevant to the protection of minors: (plaintiff's proposed condition 32), the contents of the proscription regarding access to pornographic material: (plaintiff's proposed condition 47), the requirement for Mr Biggers to identify and allow access to the records from all health care practitioners: (plaintiff's proposed conditions 53 and 56) and whether those health care practitioners should be told of his criminal record: (plaintiff's proposed condition 58).
2. Dr Dayalan noted the following in relation to the effect of "extensive restrictions" (having regard to the initially proposed usual constellation of extensive and rather unfocused conditions sought by the plaintiff): "Extensive restrictions over an extended period of time can impede upon his rehabilitation as they could affect his employment (restriction that he should be at his approved residence between 9pm and 6am could limited his employment opportunities as a truck driver) and engagement in treatment (concerns regarding sharing of information provided in confidence to health professionals). Therefore, the ongoing need for these restrictions will require reviewing on a periodic basis."
3. Section 11 of the Act provides for a discretion to direct the defendant to comply with such conditions as the Supreme Court considers appropriate, including but not limited to directions requiring the offender to do or not to do certain things set out in s 11(1) of the Act.
4. It is sometimes suggested that the list of matters set out in s 11(1) of the Act are mandatory. I do not agree with that interpretation, although it certainly sets out the type of conditions that could to be considered, and, if appropriate, imposed.
5. The proper approach to the imposition of conditions was set out by the Court in Wilde v State of New South Wales [2015] NSWCA 28: "[47] Section 11 provides that the court may impose such conditions as it considers appropriate. The discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects. [48] The purpose and statutory objects of the Act are referred to above at [25]. The scope of the Act, so far as it is relevant to the making of an extended supervision order, is to be found in those provisions which govern the making and determination of an order, namely, s 9(3) and s 11. The matters specified in those sections are not exhaustive of the matters to which the court is to have to have regard or to which any condition imposed by the court must relate. Rather, as s 9(3) provides, the court must have regard to matters specified in the subsection "in addition to any other matter it considers relevant". Likewise, the conditions that may be imposed are not restricted to those that fall within the paragraphs of s 11. [49] The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being "another object of this Act". Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to "undertake" rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates. …. [53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, 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 the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant…."

Part A: Reporting and monitoring obligations - new conditions 5, 6 and 7

1. Mr Biggers has agreed to electronic monitoring and to provide a schedule of movements generally, but rigid requirements around the schedule of movements was in issue because it provided insufficient flexibility to allow him to pursue employment as a (long distance) truck driver. Mr Biggers also sought a "sunset clause", suggesting that a 12 month limit be imposed by the Court on the requirement upon him to provide a schedule of movements to his DSO.
2. I have adjusted conditions 5, 6 and 7 to take into account the submissions made on behalf of Mr Biggers. I do not consider it appropriate however to impose a timeframe as to when the schedule of movements requirement should be downgraded or altered. This is a matter that should be decided by Mr Biggers's DSO and should be able to be stepped down if and when the DSO and team finds it appropriate. This may well be earlier than the 12 month period proposed.

Part B: Accommodation - new condition 12

1. There was an issue regarding the form of the condition and whether the DSO had to be informed of any visitors to the premises, or whether it should be limited to being informed of visitors under 25 years of age.
2. Given the risk scenarios identified by Dr Dayalan and Dr Youseff, I do not consider there to be any basis to require that every visitor be notified to the DSO. As proposed on Mr Biggers's behalf, I consider it appropriate that the DSO be told of any visitor entering and remaining, who is under the age of 25 years. A condition is imposed to that effect.

Part F: Non-association - no general non-association condition and new condition 27

1. There was an issue about whether Mr Biggers needed to agree to the DSO permitted to disclose his criminal history to another person if the disclosure was reasonably necessary, or whether it should be limited to where it was "necessary for the protection of a minor". Given the history of offending relates to minors and the need for the conditions to address that type of offending, I will impose the form of condition proposed by the defendant.

Part I: Access to pornographic, violent and classified material - new condition 42

1. The defendant submitted that this condition should be modified to prohibit him only from accessing illegal pornographic material, including child abuse material or material that sexualised children. The plaintiff submitted that Mr Biggers should not be allowed to access any pornography without the prior approval of his DSO, maintaining that the condition was appropriate to address the identified risk factor of "sexual preoccupation". The evidence offered in support of this argument was a reference in the November 2022 Risk Management Report where there is a reference to the perception held by Ms Cieplucha and Dr Parker that Mr Biggers's sex drive is likely to increase on release to the community.
2. Given there is no evidence linking the risk of reoffending to Mr Biggers accessing pornography, and that neither Dr Dayalan nor Dr Youssef specified the need for monitoring or enforcing a condition regarding access to pornographic material, this condition is neither protective nor rehabilitative and so the form of condition is limited to prohibition from accessing material involving children.

Part J: Personal details - no conditions regarding disclosure to health care practitioners

1. Mr Biggers opposed conditions requiring identification to his DSO of any health care practitioners consulted, agreement to those practitioners sharing his information, and agreement to disclosure of his criminal history to the health care practitioners treating him.
2. I do not consider those conditions to be appropriate. In my view they are counter-productive to Mr Biggers's rehabilitation and add nothing that addresses community risk.

Orders

1. I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an extended supervision order for a period of three years. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, is to comply with the Conditions set out in Annexure A to this judgment.

Schedule of Conditions - State of NSW v Biggers (134862, pdf)

Amendments 10 July 2023 - Para 11, line 1: removed the word "either" Para 31, line 1: corrected the word "in" to "an". 21 November 2023 - Amendments to Schedule of Conditions: • Condition 3: corrected "her" and "she" with "him" and "he". • Condition 5: addition of (c) before the third alternative. • Condition 10: the word "his" has been changed to "him". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2023