State of NSW v Biber [2020] NSWSC 1656

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Biber [2020] NSWSC 1656 Hearing dates: 20 November 2020 Decision date: 20 November 2020 Jurisdiction: Common Law Before: Bellew J Decision: The parties are to bring in Short Minutes of Order reflecting the conclusions reached in this judgment. Catchwords: HIGH RISK – Offender – Preliminary hearing – No issue that statutory preconditions to the making of an order were made out – Issues as to conditions – No point of principle Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1914 (Cth) Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: State of New South Wales v Farringdon [2018] NSWSC 874 State of New South Wales v Grooms (Final) [2019] NSWSC 353 State of New South Wales v McQuilton (Final) [2019] NSWSC 265 Category: Principal judgment Parties: State of NSW – Plaintiff Andrew Biber – Defendant Representation: Counsel: S Climo – Plaintiff A Hughes – Defendant

Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid Commission of NSW – Defendant File Number(s): 2020/308697 Publication restriction: Nil

Judgment – ex tempore (revised) 1. By a summons filed on 28 October 2020 the plaintiff in these proceedings seeks a number of orders including the following: 1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act); 1. Appointing two qualified psychiatrists, psychologists (or any combination of 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 2. Directing the defendant to attend those examinations. 1. An order: 1. Pursuant to s 10A of the Act, that the defendant be subject to an Interim Supervision Order from the date of the order; 2. Pursuant to s 10C(1) of the Act, that the Interim Supervision Order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and 3. 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 Summons. 1. The summons was supported by two affidavits of Rebecca Iacono of 27 October 2020 and 4 November 2020 which were read without objection. 2. The defendant, without objection, the affidavits of Hollie Blake of 17 November 2020 and his mother, Susan Biber. 3. I should record at the outset of these reasons my indebtedness to both parties for the sensible and practical way in which these proceedings have been approached and conducted. Reflected in that approach is the fact that counsel for the defendant did not seek to be heard against the proposition that all statutory requirements for the making of the orders sought had been met. Counsel for the defendant took issue with the terms of a number of the conditions sought by the plaintiff and this was the focus of the hearing. 4. By way of background, the defendant is currently aged 34. He is serving a sentence of imprisonment in the community under a parole order for offences of failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and possession of child abuse material. That sentence will expire on 4 January 2021. He is also subject to a Recognisance imposed by his Honour Judge Buscombe in the District Court under s 20 of the Crimes Act 1914 (Cth) in respect of an offence of using a carriage service with the intention of procuring a person under the age of 16 to engage in sexual activity. He is also subject to a five year prohibition order made on 4 February 2020 in the Local Court under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) and is subject to reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). 5. There is some evidence of a pattern of sexual offending on the part of the defendant involving children, at least in the past several years. He has a prior conviction for having sexual intercourse with a person aged between 14 and 16, as well as convictions for common assault, assault occasioning actual bodily harm and contravening apprehended violence orders. To a not insignificant extent that last group of offences appear to have been committed by the defendant against one or more of his former domestic partners, although it is accepted that such offending is not recent. 6. A number of medical conditions and mental health issues impact upon the defendant. He has been diagnosed with Aspergers Disorder, Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder. His intelligence and cognitive function have been assessed as falling into a fairly low range as a consequence of which he is in receipt of a disability support pension. 7. There is no issue that the statutory preconditions to the making of the orders sought have all been satisfied. In particular, the defendant is an offender as defined in s 4A and 5 of the Act. He is over the age of 18 and has served a sentence of full-time imprisonment following his conviction for a serious sex offence. The defendant is also a supervised offender as defined in s 5I of the Act because he is serving a sentence in the community imposed for an offence of a sexual nature. 8. The first issue to be determined is whether or not I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if an Interim Supervision Order is not made. As I have said, counsel for the defendant did not wish to be heard against the proposition that the evidence supported such a conclusion. However, it is necessary for me to be independently satisfied that this is the case. For the purposes of determining whether I am so satisfied, I must have regard to the factors set out in s 9(3) and 17(4) of the Act along with any other factor which I consider to be relevant. 9. In terms of such factors, I have taken into account the defendant's criminal history, the pattern of his offending behaviour and the views of those courts which have previously sentenced him. The defendant has a not insignificant criminal history which encompasses a range of offending, including driving offences, offences of dishonesty and offences of what might be described as a sexual nature. 10. When sentencing the defendant in 2017, his Honour Judge Buscombe concluded that the defendant's cognitive limitations materially contributed to the commission of the offence for which he was then being sentenced. His Honour also observed that the defendant's limitations meant that he lacked appropriate judgment, acted impulsively, sought to befriend inappropriate persons and had a limited IQ. His Honour concluded that the defendant's mental condition was suggestive of somebody who had childlike predispositions in terms of decision making, and in terms of his approach to life in general, all of which, his Honour concluded, operated to reduce his moral culpability for the offending. Significantly, his Honour did not accept that the defendant's mental health meant that he was a danger to the community, however, that opinion was expressed to have been subject to the defendant being placed in an appropriately structured and carefully supervised environment. 11. I have taken into account other information available to the Court as to the likelihood that the defendant will commit a further offence. As I have already noted, the defendant's criminal history contains a variety of entries which include entries for offences of violence in the nature of assault as well as the inappropriate use of electronic carriage services. 12. In terms of a treatment and rehabilitation program, there is evidence that at the age of 20 the defendant was admitted into the Magistrates' Early Referral Into Treatment Program. He has since had ongoing psychiatric treatment and has previously consented to being referred to custody-based sex offender programs. He has participated in various counselling sessions within the Corrective Services environment and has continued to do so since his release from custody in 2018. 13. He has been subject to a number of orders for conditional release over the years. It would be fair to say that his response to those has been mixed, but generally poor. 14. There are a series of psychiatric reports which establish that the defendant has (inter alia) a history of behavioural problems and poor impulse control, and has been treated with various forms of antipsychotic and antidepressant medication. There are other reports before the Court which address issues such as the defendant's understanding of the concept of sexual consent and his apparent lack of insight regarding inappropriate sexualised behaviour. As I have already noted, he meets the criteria for Autism Spectrum Disorder and has a not insignificant intellectual impairment. 15. In short, a variety of mental health and associated disorders impact upon the defendant. Those disorders significantly impair his capacity to properly and effectively function within the community and to interact effectively within society. He has, it seems, a predisposition to find himself in situations of conflict. That said, there is evidence that he has strong family ties and considerable family support. His mother's affidavit, which was read without objection, makes it clear that she unequivocally supports the defendant in any way possible. 16. The defendant also has a seven year old daughter. Whilst his access to his daughter is not, as it were, structured, the evidence is that he sees her regularly under the supervision of either his mother or the child's maternal grandmother, and that his relationship with her is a healthy one. 17. There are other regimes under other legislation which are open to be implemented but in my view they are not sufficient to acceptably manage what might be described as the defendant's constellation of issues which give rise to a significant risk. 18. Having regard to all of those factors I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision under the order which has been sought. 19. That then brings me to a consideration of the issues which arise in terms of the conditions which are sought to be imposed by the plaintiff and which have been annexed to a summons. 20. Condition (1) is in the following terms: "The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO". 1. Counsel for the defendant sought that that condition be amended to read as follows: "The defendant must comply with any directions given by his DSO, or their delegate from CSNSW which is reasonably necessary for the enforcement of any of the conditions of the ESO to which he is subject. Where a direction may conveniently be given in writing, it may be given electronically, including by SMS or other messaging service". 1. The essence of the submission advanced by counsel for the defendant was that the condition in its current terms represented an unnecessary overreach. In making that submission counsel referred me to the decision of Fullerton J in State of New South Wales v Grooms (Final) [1] where her Honour made reference to other cases where there had been what she described as a "particularly egregious example of overreach in the exercise of the discretion that reposes in a departmental supervising officer". In doing so, her Honour referred to the decision in State of New South Wales v Farringdon [2] where Button J observed that a departmental supervising officer is expected to undertake his or her supervision in a commonsense way informed by a practical and constructive exercise of discretion. Her Honour also observed, by reference to the decision of Fagan J in State of New South Wales v McQuilton (Final) [3] that a commonsense approach is not always adopted. 2. All of that said, and as I observed in the course of the hearing, observations of that nature are, to a degree, fact specific. There is no indication in the present case that if condition 1 remains in its current form, it will be implemented other than in a commonsense way, informed by the practical and constructive exercise of discretion to which Button J referred. In those circumstances in my view condition 1 should remain in its current form. 3. An issue was also taken with conditions 5 to 7 concerning the provision by the defendant of a schedule of movements. What is sought by counsel for the defendant is an additional condition 7(a) in the following terms: "Prior approval for a deviation from the approved schedule will not be required for the purpose of urgently attending upon a bathroom facility due to an incontinence issue which may arise". 1. It is not necessary to say anything more about this issue which is addressed by the defendant's mother in her affidavit. The proposed condition 7(a) is appropriate. 2. Part (C) of the proposed conditions addresses place and travel restrictions. In particular, condition 14 prohibits the defendant from going to a number of locations and areas in the absence of prior approval of a DSO. Condition 14(c) nominates cinemas as one of the locations which are subject to approval. In proposed condition 14(h) the word "movies" is included, but only in so far as such movies are intended for the entertainment of children. It seems to me that in those circumstances there is something of a displacement between subparagraph (c) and subparagraph (h). The reference to "cinemas" in subparagraph (c) should in my view be excluded. 3. The other issue in terms of this condition concerns subject paragraph (g) which makes reference to "pools, playing fields and sporting facilities". The term "sporting facilities" is not otherwise defined. It was suggested, for example, that a gymnasium may fall within the ambit of that term. My general understanding of these matters is that children are not, generally speaking, admitted into gymnasiums. In any event, there is an obvious concern that the defendant not frequent locations where children are present. Because of the breadth of the terms "sporting facilities", and in the absence of any further definition, it is my view that this reference in paragraph (g) should be deleted. 4. Part (E), being conditions 18 to 20, are addressed to drug and alcohol issues. Condition 18(a) requires the defendant to accept reasonable directions as to the possession and consumption of alcohol. Condition 19 proposes that he must submit to drug and alcohol testing as directed and condition 20 requires him to attend and participate in programs and courses for drug and alcohol rehabilitation. The short point that is raised by counsel for the defendant in respect of those conditions is that there is no evidence before the Court which identifies alcohol as a risk factor. In response to that issue being raised, counsel for the plaintiff took me to the Risk Management Report of 27 October 2020 under the hand of Shantelle Hodgkinson and Kelli Grabham which, under the heading "Drugs and Alcohol", concludes: "Community Corrections consider that a supervision order should require Mr Biber to abstain from alcohol and drugs; that he be required to submit to alcohol and drug testing as directed by Community Corrections; and that he attends any programs as directed to address his substance abuse. This is deemed necessary in light of the nexus between his substance abuse and his offending behaviour". 1. Although there is some evidence to linking the defendant's behaviour to substance abuse, there is little or no evidence of a nexus between his behaviour and alcohol abuse. The only evidence which might establish some causal connection between alcohol abuse and offending is the defendant's own statement recorded in a separate report that consumption of alcohol played a part in his offending some considerable time ago. Equally, however, the defendant also said that he has not consumed alcohol since the age of 22, i.e. in the last 12 years. 2. In those circumstances there does not seem to me to be any warrant to impose a condition which requires the defendant (inter alia), to accept directions in relation to the consumption of alcohol, the testing for alcohol or participation in programs concerning alcohol. In those circumstances proposed condition 18(a) should be excluded. In proposed conditions 19 and 20 the words "and alcohol" should be excluded in each case. 3. Part (F) of the proposed conditions is directed to the issue of non-association. Condition 21 in its present form prescribes that the defendant must not associate with anyone who he knows, or reasonably should know, is under 18, other than incidental contact in a public place, or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that contact takes place in the presence of an adult who has been approved in writing by a DSO. 4. In circumstances where the defendant has a young daughter, counsel submitted that this condition should be amended to include an exception allowing such contact. Counsel submitted that although there is no structured arrangement in place in terms of access, the defendant enjoys a healthy relationship with his daughter and sees her on a regular basis. 5. Paragraph [9] of the affidavit of the defendant's mother is in the following terms: "Andrew has a daughter … who is seven years old. She lives with her maternal grandmother at Eagle Vale in Sydney. She and Andrew have a very good relationship. They speak on the phone most weeks. Andrew visits Aaliyah at her house every 2 to 4 weeks (supervised by us or maternal grandmother), and we have her at our house approximately once a month at which time Andrew also visits. They watch movies, play with Lego, draw and paint. There are no formal/state access arrangements in place". 1. Counsel for the plaintiff submitted that there was an obvious concern as to the applicant's association with children in light of his history of offending. Counsel alluded to the possibility, by way of example, that the defendant could be visiting his daughter and inadvertently find himself in the presence of a friend or acquaintance of his daughter who was also a child. It was submitted that Condition 21 was intended to address that potential kind of issue. Whilst I accept that this may well be a concern if it were to occur in the course of the defendant seeing his daughter, if it did occur the defendant would be prima facie in breach of the condition in its current form because such contact would not be incidental, and would not be in a public place. 2. In circumstances where the relationship between the defendant and his daughter is a positive one, the Court should be loath to interfere with it or jeopardise it unnecessarily. In my view condition 21 should be amended to include, after the words "under 18", the words, "with the exception of his daughter xxxx". 3. Condition 39 seeks to impose limits upon the defendant's access to pornographic, violent and classified material. That material extends to materials in restricted categories 1 and 2. Counsel for the defendant submitted that such a condition was not necessary in circumstances where the possession of adult pornography had not been identified as a risk factor. Whilst that is certainly the case, the fact remains that the defendant has a history of sexual offending. That, in my view, is sufficient of itself to justify condition 39 in its current form. 4. Finally, proposed condition 50 requires the defendant to agree to the disclosure of his criminal history to any health care professionals who are treating him. Counsel for the defendant objected to a condition in those terms on the basis that the defendant considers his criminal history to be confidential and is not comfortable about it being shared with his treating medical practitioners. It was submitted that in those circumstances his agreement to do so should only be required where the disclosure of the history is reasonably necessary for the purposes of his rehabilitation. 5. I can, in one sense, understand the defendant's embarrassment as to the disclosure of his criminal history. However, it seems to me that such criminal history is inextricably linked to issues of his rehabilitation, just as it is inextricably linked to the question of whether or not the Court may be minded to make final orders in these proceedings at some point in the future. 6. For those reasons condition 50 should remain in its current form. 7. It is proposed that the final hearing take place on 3 February 2021. In those circumstances I will ask the parties to draft Short Minutes of Order in accordance with the reasons that I have just given.