State of New South Wales v Biggers (Preliminary) [2023] NSWSC 367

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Biggers (Preliminary) [2023] NSWSC 367 Hearing dates: 11 April 2023 Decision date: 14 April 2023 Jurisdiction: Common Law Before: Button J Decision: Interim Supervision Order imposed Catchwords: HIGH RISK OFFENDERS — preliminary hearing — child sex offender – whether defendant poses unacceptable risk of committing serious offences if not kept in custody or under supervision – no opposition to the making of interim supervision order – long custodial history – where defendant asserts wrongful conviction – no therapeutic treatment received in custody – COSP accommodation available to defendant – interim supervision order imposed Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5C, 10A, 18A Cases Cited: Biggers v R [2020] NSWCCA 22 Category: Principal judgment Parties: Rex (Plaintiff) Philip Peter Biggers (Defendant) Representation: Counsel: H El-Hage (Plaintiff) R Webb (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) File Number(s): 2023/57690 Publication restriction: Minor redaction in judgment to protect identity of victims of child sexual assault

JUDGMENT

Background 1. Mr Philip Peter Biggers (the defendant) was born in March 1977 and has therefore just turned 46. An Aboriginal man, he grew up in circumstances of great deprivation and hardship, as follows. He was one of many siblings. His parents separated when he was five years of age. At one stage he suffered the horrific trauma of seeing the consequences of his father setting himself on fire. The defendant alleges that he suffered very serious offending as a child, which need not be particularised here, an allegation that I accept on balance. He lived on the streets on occasion from an early age. He was permanently expelled from school after an act of violence against the principal. I have no doubt that all of those experiences have damaged the defendant psychologically, and play at the least an indirect role in all that has gone wrong in his life since. 2. After leaving school, he has been employed in various roles over the years. He also enjoyed a number of intimate relationships. Having said that, as of today the defendant is very largely cut off from the world outside of prisons, in which he has been continuously detained since August 2016. 3. To expand on that: the defendant has been convicted on three occasions of sexual offending against five females, most of them under 16, and all of them very young. 4. In 1998, in the District Court of New South Wales, Judge Garling placed him on a bond for having committed two aggravated indecent assaults upon two separate female victims. Both were 11 years of age. The first offence was constituted by the defendant rubbing the first victim's genital area, through her clothing initially, and then with the victim's underwear removed. The second offence was of a similar nature: the defendant rubbed the second victim's genital area through her clothing. Without going into detail (in order to protect their anonymity), they were close to him by way of relationships and [redacted]. At the time of the offending, the defendant was 19 years of age. The defendant pleaded guilty to these offences. The bond was breached by subsequent non-sexual offending, but not called up. 5. In 2002, the defendant committed further sexual offending against a girl aged between 14 years and 16 years, in that he had penile/vaginal sexual intercourse with her on three occasions. The defendant was known to the victim's family, as he had been working on trawlers in the area at the time of the offending. He was not convicted of the offences until many years later, in 2013. The facts, in a nutshell, were that the defendant had contacted the victim and led her to meet him at a trawler on which he had been working in late April or early May 2002. When she arrived, he told the victim he loved her, and they proceeded to have penile/vaginal intercourse. In August 2002, the defendant engaged in oral intercourse with the victim whilst visiting her home and, by way of context, had penile/vaginal intercourse with her on many occasions. At the time of the offending, the victim was 14 years of age, and the defendant was in his mid-20s. 6. The defendant pleaded guilty to these offences, though it seems that now, twenty years after the offending and ten years after the convictions, he disputes some aspects of the agreed facts that were placed before the Court. Judge Wells SC imposed a head sentence of imprisonment for three years, with a non-parole period of one year six months. The defendant entered custody in August 2012, and was released from prison on parole in June 2014. 7. As a result of these convictions, he was placed on the Child Protection Register, and subject to the requirements of the related Child Protection (Offenders Registration) Act 2000 (NSW) (the CPORA). In fact, the defendant breached that act on a number of occasions. That was chiefly by way of having contact with children when not permitted to do so, and keeping that contact secret from the authorities. As a result, he was returned to custody by way of a head sentence of imprisonment for one year, with a non-parole period of nine months. He was imprisoned in April 2016, and – perhaps through some backdating – was released three months later, in July 2016. 8. One month later, he was incarcerated again, and has been in custody ever since. That is because he was found guilty by Judge Flannery SC at the conclusion of a judge alone trial of two sexual offences against two females who were above, but close to, the age of consent. 9. The first offence was indecent assault by way of touching one victim on the breast. At the time, she was aged 17 years and 9 months. The second victim was aged 16 years 11 months and intellectually developmentally delayed. The trial judge was satisfied beyond reasonable doubt that the defendant had penile/vaginal sexual intercourse with the second victim without her consent. At the time, the defendant was 39 years old. Judge Flannery remarked that "specific deterrence and the protection of the community need to be given prominence…having regard to the offender's lack of insight". 10. An appeal to the Court of Criminal Appeal was subsequently dismissed: Biggers v R [2020] NSWCCA 22. In the leading judgment, McCallum JA (as her Honour then was) emphasised the defendant's persistent attempts to coerce the victim into sexual intercourse: "Whether or not the applicant was clever or tricky, in my assessment he was highly manipulative. With respect, the judge's acceptance of that submission overlooked the persistence of his overtures, his position of authority over her and the way in which he was working in concert with the co-accused, who being the applicant's girlfriend, might be expected to have made [the victim] feel safe from anything untoward happening while she was there. The finding also overlooked the vulnerability and susceptibility of teenagers generally and this child in particular, in the circumstances in which she found herself": at [133]. 11. The defendant firmly denies all aspects of the first offence. As for the second, he accepts that sexual intercourse took place between the two of them, and that his actions towards the second victim were "morally lacking". But he firmly denies that the second victim was not consenting, to his knowledge (as the latter concept is broadly defined by statue). 12. Other aspects of the background of the defendant need only be referred to briefly. He had a problem with prohibited drugs years ago, but it seems to have receded. The defendant was diagnosed with depression about 10 years ago, and it seems that in 2010 he attempted suicide. 13. In custody for approaching seven years, the defendant has spent most if not all of his time in Special Management Area Placement (SMAP), as I understand it for his own safety. Positive aspects of that time are that he is recorded as having been a good worker, and, most of the time, compliant with prison discipline. There are a number of negatives, however. One is that his record of prison discipline is not entirely free of violence, and in fact he has a pending charge of an assault occasioning (significant) actual bodily harm against another prisoner that seems as if it will be committed for trial to the District Court quite soon. Another negative factor – one that I infer is connected with his assertion that he has been wrongly convicted and incarcerated – is that he has been querulous, frustrated, and, on occasions, aggressive and intimidating. A letter of 27 October 2020 sent by him to the gaol authorities and placed before me is a good example of some of those attributes. By far the most negative factor is that, chiefly because of his own attitude, the defendant must be regarded as having received no therapeutic treatment whilst in continuous custody since August 2016. 14. The conclusion of the non-parole period imposed by Judge Flannery came and went many months ago, in April 2021. That is because the State Parole Authority (SPA) felt that to release the defendant would constitute a danger to the community. The head sentence will expire completely in a matter of days, on 17 April 2023. He remains at B classification, after having regressed as a result of the latest allegation of violence. 15. Finally, recent evaluations of the risk posed by the defendant suggest that he presents a moderate to high, or above average, risk of sexual reoffending (broadly defined). Whilst accepting the well-known difficulties in predicting how a person will behave in the future, including but not limited to by way of actuarial analysis, that is an assessment with which I, as a layperson constituting the tribunal of fact, respectfully agree.