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. Proceedings 1. That is the context in which a preliminary hearing was conducted before me on 11 April 2023 pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The submission of the State of New South Wales (the plaintiff) was that I would mandate examinations by a psychiatrist and a psychologist, accompanied by the imposition of an interim detention order (IDO) or, in the alternative, an interim supervision order (ISO). The ultimate foreshadowed application of the plaintiff will be for a one year continuing detention order (CDO), to be followed by a three year extended supervision order (ESO). 2. The defendant was represented by a solicitor and barrister soundly experienced in criminal law. It was accepted on his behalf that all "mechanistic" preconditions for the making of orders against the defendant pursuant to the Act had been established. It was also accepted that, to the following extent, the crucial test to be found in sections 10A and 18A of the Act had also been established. 3. The considered position on instructions was to resist neither the mandated examinations nor the alternative application of the plaintiff for the imposition of an ISO. What was resisted was further incarceration by way of an IDO. 4. I respectfully agree with those concessions on the part of the defendant. In light of the pattern of sexual offending that first began when this man was still a teenager; his recalcitrant attitude to it; his resultant complete lack of therapy over many years; his constellation of other issues sketched by me; and his lack of social support in the community, there is no question but that the test for mandated examinations has been fulfilled. 5. Separately, in my opinion, there is no question of the defendant simply being released in a few days' time at complete liberty in the community. That would, I am satisfied to a high degree of probability, mean that the defendant would pose an unacceptable risk of committing another serious sexual offence: see the above sections, along with ss 5B and 5C of the Act. The real issue determined 1. As the parties and I agreed at the hearing, the real question is whether the defendant should have his liberty extinguished for a period of 28 days (and, in all likelihood, for up to 3 months) by way of an IDO, or whether curtailment of his liberty by way of an extremely strict ISO would be sufficient (I interpolate that counsel for the defendant made it clear at the hearing that none of the conditions proposed by the plaintiff were opposed as inappropriate). 2. Up until the hearing itself, the documentary exhibits strongly suggested that the outcome must be deprivation of liberty. That is because there was no evidence to suggest that the defendant had anywhere to live if he were released next week. And my initial thought was that it would be simply too dangerous for the defendant to be either homeless, living completely unsupported in crisis accommodation, or somehow or other finding another, almost inevitably criminogenic, place to live. 3. The position was clarified, however, at the hearing itself. I was told by both counsel from the Bar table that the defendant could live at a Community Offender Support Program (COSP). No evidence was placed before me as to the attributes of that accommodation, but I inferred that both parties were content for me to rely upon my forensic experience that such a place is a halfway house into which prisoners can be released, often physically attached to a gaol, and in which a reasonably rigorous regime of living is imposed. 4. Having said that, counsel for the plaintiff made it clear that that accommodation would offer no greater therapy than would otherwise be available if the defendant were living elsewhere in the community: that is, one-to-one psychological counselling, approximately once a week. 5. Counsel for the plaintiff accepted that the availability of the COSP was a positive step. He also accepted that the sexual offending of the defendant was not random, spontaneous, or sudden, and took me to a portion of a recent risk assessment report of that effect. Rather, it had been committed against persons whom the defendant had gotten to know over a period of time, albeit in different circumstances. In other words, counsel accepted that, although I would find that the defendant, despite his denials, has some form of deviant sexual attraction to females under or very close to the age of consent, I would not regard him as a compulsive paedophile who one might fear could take an opportunity suddenly and immediately to reoffend. 6. Having said that, counsel for the plaintiff submitted that, inevitably, whilst living in a COSP the defendant would be regularly out and about on his own. Whatever the stringency of his supervision, one might expect that he could take the opportunity to target a girl or very young woman for grooming or manipulation, with devastating results. 7. He also emphasised the paucity of therapy that would be available in the community, especially compared to the resources available in custody, if only the defendant would avail himself of them. 8. Counsel for the defendant submitted that his client has had well over six years in custody to reflect upon his need to avoid offending again. His client has also suffered the strictures imposed upon the prison system by the pandemic; that was relied upon as I understood it to similar effect. The point was also made that, whatever his view of the correctness of some of his convictions, the defendant explicitly consents to all of the conditions of the contingently sought ISO. Counsel also endorsed my initial thought that I could surely rely upon any Departmental Supervising Officer (DSO) appropriately to administer any ISO with great rigour, in light of the lack of therapy undertaken by the defendant in custody. Finally, in answer to my expressed concern about the defendant inevitably being out and about on occasions, away from the structured setting of the COSP, he submitted that electronic monitoring – a consented to condition of the ISO – would play an important protective role. 9. I must say that the question is finely balanced. To repeat myself: there would have been no question of the defendant being released into the community simply to live in a boarding house, emergency accommodation, or indeed on the streets, as he has done in the past. And it is an obvious concern that a man who has been committing sexual offences against young females since his teenage years has not received any therapy during his most recent stint in custody, let alone the intensive therapy that I believe is required here. 10. Having said that, a COSP is a reasonably structured environment; the conditions of the ISO are rigorous; in the circumstances, I consider that I can safely expect that those conditions – including electronic monitoring – will be rigorously administered; and it is true that the defendant has shown no sign in the past of being the kind of sexual offender who offends at the first opportunity, compulsively, or against a stranger. 11. After reflection, I have come to the view that, although the liberty of the defendant must be severely curtailed, it need not be extinguished in order to protect the community appropriately, in conformity with the principles underlying the Act. For that central reason, I shall impose a renewable ISO of 28 days, and decline to impose an IDO of identical length. Order 1. I make the following orders: 1. An order: a. appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological 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. 1. a. that the defendant be subject to an interim supervision order for a period of 28 days from 14 April 2023; and b. directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the attached Schedule. State of NSW v Biggers Schedule of Conditions - final (169689, 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: 14 April 2023