State of NSW v Biber [2021] NSWSC 104 | Case summary

Supreme Court of NSW|2021-02-12|Before: Button J

Procedural history

This is an application by the State of New South Wales (the plaintiff) for a three-year extended supervision order (ESO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against Mr Andrew Biber (the defendant).
It was listed before me for final hearing on 3 February 2021. On that occasion, I dismissed a claim for public interest immunity made by the Commissioner of Corrective Services (the CCS): see State of NSW v Biber [2021] NSWSC 47. I was told that, in all likelihood, an appeal would be lodged against that interlocutory decision. In order to accommodate that foreshadowed appeal, the final hearing was adjourned until Friday, 12 February 2021. In the event, no appeal was pursued (I am not being critical of that decision).
The hearing of the matter on the latter date took a whole day, and involved cross-examination of four witnesses. As is invariably the case in applications such as these, a plethora of documentary evidence was also placed before me.
On the same day, I imposed an interim supervision order (ISO) upon the defendant, with the consent of his counsel. He had been subject to such interim orders since late last year. Pursuant to the Act, no further diminution of the liberty of the defendant can be imposed beyond Saturday, 20 February 2021.
The final contextual aspect is that I do not feel comfortable depriving a person of his or her liberty, or diminishing it, without providing contemporaneous reasons for doing so.
The upshot of all of that was that I have had four working days in order to provide a judgment in this serious matter, whilst of course having other judicial responsibilities.
I recount all of that not to be critical of any person or party, but simply to explain that the conciseness of this judgment does not signify disrespect for the voluminous evidence, expert and otherwise, and submissions placed before me, but rather is simply born of exigencies.

Background

The defendant was born in Sydney in February 1986, and will shortly turn 35. He grew up in a family free from material and emotional deprivation in the suburbs of the same city. Indeed, in all the years since, his mother and father have been supportive, loving, and positive influences. Sadly, through no fault of theirs, or of the defendant, things commenced to go wrong when he was very young indeed.
In short, he has suffered from physical difficulties from birth, and psychological difficulties from a very early age. The physical problems do not need to be elaborated upon here. As for the psychological problems, to give a very early example, he was expelled from kindergarten for an act of serious violence against another child. More suspensions and expulsions followed, including from schools that catered specifically for children with learning and behavioural difficulties. He ended up attending at least a dozen schools; the disruption to his education was inevitable. He left school in year 9 at the age of about 14. The defendant has not really worked since the age of 16, except for a period as a butcher on a casual basis, and at a newsagency in his late teens. Since the age of 16 he has received a Disability Support Pension.
The defendant has been diagnosed as suffering from Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), and a significant measure of cognitive impairment. He is also said to suffer from a personality disorder. He is impulsive, and sometimes obstreperous. He currently lives independently in a small country town within New South Wales in a home arranged by his parents.
The defendant commenced to intersect with the criminal justice system in 2004, when he was aged about 18. Many of those intersections are less serious, and are such things as road traffic offences, not paying public transport fares, and shoplifting. Some of the allegations against him have been diverted from the criminal justice system pursuant to mental health legislation. Even so, by 2011, he had garnered a not insignificant criminal record not entirely free of violence, albeit for less serious matters generally. His record from an early stage also bespeaks a developing problem with drugs or alcohol or both.
In July 2011, when he was aged 25, the defendant had penile/vaginal sexual intercourse with a 15-year-old girl. It seems that he met her on a train station, thereafter there was social media contact between the two of them, and eventually they had sexual intercourse at his home. Counsel for the defendant suggested to me that a plea of guilty had been entered on the basis that the defendant had made an honest mistake about age, but it had been conceded that that mistake was an unreasonable one: see CTM v The Queen [2008] HCA 25; 236 CLR 440. Counsel for the plaintiff submitted that the agreed facts tendered in the proceedings on sentence demonstrate that there could have been no mistake at all about the age of the child, because the defendant had been informed of it, and "warned off".
Whatever the true position - perhaps, bearing in mind the level of intellectual functioning of the defendant, some middle ground between the two of them - the defendant was convicted of the offence in the Local Court at Campbelltown in April 2012. A bond for 18 months with supervision was imposed. That was called up six months later, but no action was taken on the breach. Separately, because of the nature of the conviction, the defendant was placed on the Child Protection Register (CPR) and had various statutory responsibilities imposed upon him.
The defendant continued to interact with the criminal justice system, though his offences remained at the less serious end of the spectrum. Discharges pursuant to mental health legislation continued to be granted.
Eventually, however, in late 2013, an aggregate head sentence of 16 months with a non-parole period of 6 months was imposed upon the defendant for an offence of assault occasioning actual bodily harm, and the contravention of an apprehended violence order (AVO). The conditions of parole are replete with references to the need for psychiatric and psychological help, including from the Autistic Spectrum Association.
Thereafter, in December 2016, the applicant used a carriage service to procure a number of persons under the age of 16 years for sexual activity. He also failed on many occasions to comply with his reporting obligations with regard to the CPR, itself a criminal offence of course.
In a nutshell, the applicant contacted a number of persons on Facebook and over the phone and sought to have sexual contact with them. They were in fact girls under the age of 16 years. His position was that he was ignorant of their age, at least at first, and the contact developed a sexual flavour without deliberation on his part.
In November 2017 in the District Court at Penrith, Judge Buscombe imposed a head sentence of 2 years 6 months, to commence in June 2017 and conclude in December 2019. Pursuant to the federal sentencing regime, the defendant was ordered to serve 1 year 3 months in custody, and thereafter to be released on recognisance.
In the remarks on sentence, his Honour referred to the defendant's history of repeated contact with female children; in particular, extensive online contact that the defendant had had with female children of under the age of 16, including instances where the defendant had transmitted images of his penis. His Honour also referred to the breaches committed by the offender of his obligations with regard to the CPR. However, having regard to the reports by psychologists and other medical evidence, as well as the presence of protective factors, his Honour was not satisfied that the defendant would represent a danger to the community. Again, the conditions of the recognisance are replete with references to the need for prescribed medication to be taken, avoidance of non-prescribed drugs and alcohol, and the need to get help from mental health professionals.
The defendant was duly released from custody on 15 September 2018.
He returned to the District Court at Penrith in April 2020. His recognisance was extended, seemingly now to conclude on 13 June 2021. He was separately imprisoned again, this time in the Local Court in Lithgow, for failing to comply with his reporting obligations again. Also reflected in a new aggregate sentence was a count of possession of child abuse material.
The facts underpinning the latter allegation were that, on 4 November 2019, following a police visit to his home, the accused handed over his phone for police to check (on the information police had obtained, the defendant was in possession of a Tinder account which contravened his obligations under statute). It was discovered that the defendant had saved, on his phone, an HTML file that opened a website that contained numerous photos of young female children and teenagers being sexually assaulted.
In relation to the possession of the Tinder account, which underpinned the former allegation, it was revealed that a former employee of a Correctional Centre had been using Tinder. That employee subsequently showed photos of the defendant, who had used an alias on Tinder, to another staff member of the Correctional Centre, who had also identified the defendant.
The Magistrate emphasised the fact that the offences were breaches of conditional liberty; the objective seriousness of what the defendant had done; his ASD and cognitive impairment; the need for "extensive support going forward"; the "loving family" of which the defendant had the benefit; and the need to give weight to both specific and general deterrence.
An aggregate head sentence of 1 year 2 months was imposed, to commence in November 2019 and expire in January 2021. A non-parole period of a little over five months was imposed, which concluded in April 2020. As can be seen, special circumstances led to a marked deviation from the statutory ratio.
The defendant was released on parole in April 2020, and has been on various forms of conditional liberty ever since. His head sentence expired last month. Things have proceeded reasonably well, at least with regard to further intersections with the criminal justice system. The only example of that is that, in September 2020, he was charged with impersonating a police officer. That allegation is that he created some sort of document that he placed in a motor car that made it look as if the vehicle was an unmarked police car, presumably so that he could park without penalty in police parking zones. I regard that offence as eccentric and not serious. He remains on bail for that offence, and it has not led to revocation of parole.
In short, as at the hearing, my understanding is that the defendant was living alone in a small country town, but with the long distance love and support of his parents. His use of the Internet is restricted by way of an ISO, for obvious reasons. His life, I infer, is a constrained and isolated one. His ISO proceeds "bumpily", but satisfactorily. The defendant is exasperated by, and sometimes angry about, the infringements upon his autonomy arising from his conditional liberty.

Expert opinions

As one would expect, the defendant has been seen by countless medical experts over the years: as a child, adolescent, adult, defendant, prisoner, and convicted sex offender.
Mr Ardasinski, a psychologist employed within the correctional system, noted that the defendant had not received therapy in custody, chiefly because his ASD presented a barrier to that. He spoke of the mitigation of future risk that could be enhanced by an ESO; on the other hand, he noted that the parole of the defendant was to expire on 4 January 2021, the recognisance to expire on 13 June 2021, and his statutory obligations as a result of the earlier conviction not to expire before early 2025. He spoke of a "composite risk/needs level" that was "Well Above Average".
Notably, Dr Furst, a highly experienced forensic psychiatrist, has been seeing the defendant for various reasons over a period of about a decade. Pursuant to court order, he was also recently seen by Dr Pulman, clinical neuropsychologist, who has a special expertise with regard to persons who suffer from ASD. He was also recently seen by Dr Davis, consultant forensic clinical psychologist, qualified by the legal team of the defendant, and who has assessed literally hundreds of persons subject to an application similar to an ESO in Victoria. All of those experts have administered risk assessment tools that are, on the one hand, well validated, but, on the other hand, inevitably limited to generalisation when one is called upon to reflect about an individual. And, of course, they have brought to bear their own clinical judgment and experience as well.
Dr Furst expressed the view that the defendant is at high risk of committing violent and sexual offences, in light of his ASD, ADHD, and personality disorder. The forensic psychiatrist emphasised the anger, impulsivity, lack of emotional regulation, lack of empathy, and lack of respect for young females demonstrated by the defendant. He also spoke of the fact that the conditions from which the defendant suffers will not resolve or improve in the future. Dr Furst spoke of the defendant as being a person who would be likely to benefit from the intensity of supervision and treatment offered by an ESO.
Dr Pulman expressed the view that the defendant has "an abnormal cognitive profile", and that his functioning is quite variable. For example, in conversation the defendant may not give the impression of suffering from a cognitive impairment. She spoke of the risk of the defendant engaging in future sexual violence as being "moderate/elevated". She emphasised the history of sexual offending; his poor insight into that offending; the complex constellation of psychological (and physical) difficulties from which the defendant has suffered and suffers; the deleterious effect of drug abuse, including "ice", in the past; and his poor compliance with conditional liberty on many occasions. She spoke of the family of the defendant as a "protective factor". A "risk scenario" that Dr Pulman emphasised was contact on social media by the defendant with a girl under the age of consent. The ultimate "convergent risk rating" at which Dr Pulman arrived was high.
Dr Davis noted that, when asked about the question of sexual contact with children under the age of 16 years, the defendant queried the "bright line" nature of an age of consent. The defendant denied that he had ever been attracted to girls of the age of 14 or 15 years, but rather suggested that he had been attracted to "the individual person". He rejected the usefulness of further conditional liberty, and spoke of it "going on and on and on and on".
Dr Davis also emphasised the problems of impulsivity and recklessness. He also spoke of testing that suggested that the defendant does indeed have a problem with anger. More positively, the opinion of Dr Davis was that testing suggests that the defendant is "unlikely to have a preferential sexual interest in pre-pubescent or young pubescent children".
Ultimately, Dr Davis felt that it was important that the defendant has not committed a "contact sexual offence" for a period approaching a decade. The expert also felt, for a number of reasons, that it was unlikely that the defendant would be able to persuade any female under the age of consent to provide putative "consent" to sexual contact with himself.
Dr Davis felt that there was a "low-to-moderate" risk of the defendant committing a "contact sexual offence". On the other hand, the expert felt that the defendant poses a "moderate-to-high" risk of committing more offences in the nature of online procuring or grooming of young pubescent and adolescent females. (I interpolate that counsel for the defendant conceded that some such offences are "serious sexual offences" for the purposes of the Act.)
My understanding is that, speaking generally, the defendant has cooperated and engaged with all of the persons asked to make assessments of him.
In short, it can be seen that there was a great deal of agreement between the three experts who were cross-examined before me. Although cross-examination revealed differences of opinion about details of various tests administered, none of them bitterly impugned the ultimate opinion of any other. And as I remarked to counsel at the hearing, it seems to me that their ultimate opinions are based upon differences of emphasis, resulting in different points on a spectrum with regard to assessment of risk, and that those points are in reality not too far apart.
Finally, with regard to reports the consideration of which Parliament calls upon me to demonstrate explicitly, a deal of evidence has been placed before me about how the defendant has proceeded so far whilst subject to ISOs, and how it would be proposed he would be managed if subject to an ESO.

Contending positions

The foregoing is a thumbnail sketch of the context in which the plaintiff has sought, as I have said, an ESO for three years with many conditions.
The position of the defendant is that the statutory test for diminution of liberty has not been made out; in the alternative, I would exercise my discretion nevertheless not to impose it; in the further alternative, the ESO should be shorter; and additionally, some of the conditions should be made less rigorous.

Determination

Turning to my determination, there is no dispute that all of the "mechanistic" statutory preconditions for the making of an ESO have been established. The question is whether the plaintiff has also fulfilled the central test to be found in section 5B(d) of the Act: whether I am satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
In determining whether there is an unacceptable risk, I am, of course, not required to determine that the risk of an offender committing a serious offence is more likely than not: s 5D of the Act.
My thinking is as follows. On the one hand, I do not consider that it has been established on balance that the defendant is a recalcitrant, committed paedophile who is determined to act upon a sexual attraction to young prepubescent children. In that sense, I do not believe that he is to be thought of as a "true" paedophile, in the sense that that term is commonly understood.
I also accept that much of his offending, including his sexual offending, is a function of the deficits and disabilities from which he suffers. For example, I do not believe that it is uncommon for cognitively impaired persons to be attracted to others who are much younger than themselves, simply because there may be a comfortable equivalence of sophistication and maturity and cognition. On balance, I infer that that is something of an explanation for some of the sexual offending of the defendant.
I also accept that the love and support of his parents, over what must have been many difficult decades, and which continues today, is a significant protective factor.
Finally, I accept that many of the intersections between the criminal justice system and this man more generally are functions of his own significant psychological and cognitive difficulties, rather than a considered decision to break the law. I think the same can be said about his problematic responses to supervision and conditional liberty generally, not least compliance with the CPR.
On the other hand: my impression is that the defendant is leading a difficult and reasonably isolated life. His criminogenic attributes are permanent. Neither imprisonment nor conditional liberty in the past has forestalled reoffending, including sexual reoffending. Most importantly, I do think that there is a pattern of sexual interest in persons under the age of consent that has been established over the course of almost a decade: full sexual intercourse with a 15-year-old girl, first encountered in a public place, and thereafter communicated with on social media; later, sexualised contact with many young girls on social media, sufficiently serious to call for imprisonment; and thereafter, the location of material on the mobile phone of the defendant that is strongly suggestive of a sexual interest in children who, at the least, are under the age of consent.
The various explanations and prevarications of the defendant about all of that do not dissuade me from satisfaction that that pattern is established.
Furthermore, I regard the seeming depreciation by the defendant of the importance of the age of consent, and sexual contact with children who are approaching it, as a troubling insight into his thinking about what he has done in the past, and what he may do in the future.
Having said that, I agree with his counsel that it is to the credit of the defendant that he has been able to manage in the community for something like 10 months without there being any suggestion of further sexual offending against children (as I have said, there have been some minor fresh charges of a different nature). I also appreciate that being closely supervised in the community pursuant to conditional liberty, and especially after one's sentence has expired, can often be a significant burden to bear. In other words, I accept that every day of progress made by the defendant is of value.
To be weighed against that is the pattern that I discern that has existed for almost a decade; the repeated breaches of the obligations arising from being on the CPR; the other unsatisfactory responses to other forms of conditional liberty; and the degree of difficulty that the defendant has created in his management (to repeat: I accept that his oppositional attitudes are largely a function of his psychological problems and cognitive impairment, rather than something deliberate).
Trying to weigh up everything with which I have been provided, and without being unduly condemnatory of a man such as the defendant, labouring under the difficulties that he does, I am satisfied that there is a risk of serious sexual reoffending in the future, and that that risk is an unacceptable one. In particular, I think that there is an unacceptable risk of further sexualised contact with persons under the age of consent by way of the Internet.
Nor do I believe that there is any discretionary reason why I should not make an order in an effort to protect against that risk. A significant part of my thinking in that regard is that the commission of such an offence - even though "non-contact", in terms of actual physical touching - can do very grave damage to a child or young person.
It follows that I shall impose an ESO on the defendant.
Having said that, I do not believe that a duration of three years is called for, not least because, as I have said, I think that many of the failings of this man on conditional liberty are the result of his personality, not defiance or deliberation. I also think that, if things could "settle down", there is the possibility of significant progress being made, especially with a "light at the end of the tunnel" that is not too far away. Finally, an ESO can be applied for again by the plaintiff as necessary without fetter.
For all of those reasons, the ESO will extend for 18 months.

Conditions

Turning now to the dispute about conditions, it was helpfully encapsulated in a table prepared by the parties that showed all conditions proposed by the plaintiff, all conditions the subject of (contingent) acceptance by the defendant, all disputed conditions, and any alternative conditions proposed by the him.
In approaching those disputes, I have borne in mind that: conditions of an ESO must be "appropriate"; they should not be generic in terms of reducing risk; they should be sufficiently specific to be capable of practical compliance; breach thereof can lead to incarceration; and children and young persons are everywhere, and it is unrealistic to think that a person on conditional liberty can be completely isolated from them. I have also borne in mind at this further stage the deficits under which the defendant labours through no fault of his own.
I have reviewed all of the conditions to which the defendant consents, and believe that they are appropriate. I turn now to disputed conditions.
Proposed condition 1 speaks of a requirement that the defendant submit to the supervision and guidance of his Departmental Supervising Officer (DSO) The alternative proposal of the defendant is that the directions of a DSO must be "reasonably necessary for the enforcement of any of the conditions of the ESO to which he is subject". But I respectfully do not believe that a judge of this Court is called upon to determine such a "granular" difference in formulation. And if there is in fact a significant difference between the two proposed wordings, I am of the view that reasonable necessity should not be limited only to enforcement of conditions; there may be other aims - not least, rehabilitation generally - that should be able to underpin a reasonable direction.
Proposed condition 1 will therefore be made as sought by the plaintiff.
Proposed condition 4 speaks of a requirement that the defendant wear electronic monitoring equipment "as directed by a DSO". The alternative proposed by the defendant speaks of such a requirement arising "if directed". But I respectfully think that that is an arid debate: as a matter of meaning, "as directed" possesses the same degree of contingency as "if directed"; in other words, for the simple reason that of course the DSO would not impose such a requirement is a matter of course or automatically.
Condition 4 will be made as proposed.
Proposed condition 13 is that "the defendant must not frequent or visit any place or district specified by a DSO". Thereafter, proposed condition 14 prohibits attendance at a number of places without the prior approval of a DSO. Proposed condition 14 is expressed to operate "without limiting condition 13 above". The dispute here is about whether or not "cinemas" should be included in the list of locations that appears in proposed condition 14.
Again, this respectfully seems to me a highly granular debate, for the following reasons.
First, undisputed proposed condition 13 provides a broad power to a DSO to prohibit frequenting or visiting "any place or district"; no doubt, such a power would be exercised reasonably. In other words, the DSO could prohibit attendance at cinemas in any event, pursuant to proposed condition 13.
Secondly, the list of places appearing in proposed condition 14 permits of possible attendance, but simply requires prior approval.
Separately, I think it is notorious that cinemas and cinema foyers are places where persons under the age of consent enjoy themselves without the presence of adults, and tend to congregate, whether seeing a motion picture or not.
Proposed condition 14 will therefore be made in its original form.
Proposed condition 28 limits the access or use of various digital services by the defendant without the prior approval of a DSO, except in an emergency.
The first alternative proposal of the defendant is that "the Internet" be deleted from that condition. I respectfully reject that, simply because I believe that, in light of the history of this matter, there needs to be a significant and wide-ranging restriction upon the ability of the defendant to contact with others remotely. I do not accept that the Internet can be excluded from that restriction.
The second alternative proposal of the defendant is that the condition be supplemented by addition of the words "or when supervised by a responsible adult". I reject that as well, because I believe that, in light of the personality of the defendant, such a condition would immediately lead to debate and dispute about who precisely constitutes a responsible adult.
Even so, I think the condition should be made somewhat less rigorous than proposed by the plaintiff. I trust the parents of the defendant, and believe that they are a very positive influence upon him. For those reasons, proposed condition 28 will be amended by the addition of the following words at its conclusion, "and except when directly supervised by his mother or father in person."
It is said by the defendant that proposed condition 30 is ambiguous and unnecessary, when read with unopposed proposed condition 28. Proposed condition 30 says that the defendant "must not access, join and/or connect to any Internet or Messaging Service/Application without the prior approval of a DSO". Proposed condition 28 has a similar effect, except, as I read it, for the fact that it fails to capture joining or connecting to such services or applications.
I agree that there is surely substantial overlap between the two proposed conditions. But it is clear on the evidence placed before me that the defendant takes a pedantic approach to his conditions, and is prepared to argue about their precise subject matter. He is not to be punished or criticised for that; but it means that, in the interest of everyone, breadth and overlap may be more appropriate than in other cases. And it is to be recalled that this man has approached persons under the age of consent on the Internet for sexual purposes, and been imprisoned for it.
Proposed condition 30 will be imposed as made.
Proposed condition 33 limits the defendant to using his own first name and family name. The proposed amendment is, in a nutshell, that that be made less rigorous. In the circumstances, I readily reject that alternative, not least because it seems that he has in the past used an email address that features the name of his daughter. In my opinion, it is important that the defendant be restricted to using one name only, and that variations even of his own name not be permitted to cloud the picture.
Condition 33 will be imposed as proposed by the plaintiff.
Proposed condition 39 restricts the access of the defendant to material that could compendiously be described as pornography. The alternative proposal is that he be permitted to access "legal pornography", on the condition that he notify his DSO within 24 hours of doing so. But I readily reject the proposition that this man - who suffers from an autism spectrum disorder, and who has demonstrated not only a sexual interest in persons under the age of consent, but also a readiness to act upon it - should be at liberty to do so, and thereafter possibly engage in a debate with his DSO about the attributes of the pornography, and whether it is lawful or otherwise.
Condition 39 will be imposed as proposed by the plaintiff.
Finally, proposed condition 50 is that the defendant "must agree to the disclosure of his criminal history to any healthcare professionals that are treating him". The alternative proposal is that he would only need to agree to such a course "if the DSO decides that it is reasonably necessary following consultation with him". But, with respect, I do not propose to impose that degree of logistical complexity upon the question, not least because one can readily posit situations in which the defendant may be placed by an unwitting medical professional in the company of females under the age of consent in a therapeutic setting.
Condition 50 will be imposed as proposed by the plaintiff.

Orders

For the foregoing reasons, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant is subject to an extended supervision order ("the extended supervision order") for a period of eighteen months from the date of the order. 2. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions annexed to this judgment. Biber Schedule of conditions (137034, pdf)

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: 19 February 2021

State of NSW v Biber

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

Cited By (2)