State of New South Wales v Biggers

1. [1]

   By way of a Further Amended Summons filed in court on 3 July 2023, the State of New South Wales sought final orders for an extended supervision order (“ESO”) against the defendant Mr Biggers pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for a period of three years and for an order pursuant to s 11 of the Act that Mr Biggers comply with conditions as set out in the Schedule A to the Further Amended Summons.

2. [2]

   The defendant did not oppose the making of an order nor the term sought. Nonetheless, it remains a matter for the Court to determine whether an ESO should be made, and if so, the length of that order and the conditions to be imposed. With respect to this last matter, although the conditions were largely agreed, the defendant took issue with some of the conditions sought by the plaintiff.

3. [3]

   On 14 April 2023, Button J made an Interim Supervision Order (“ISO”) for a period on 28 days: State of New South Wales v Biggers (Preliminary) [2023] NSWSC 367 (“the preliminary judgment”). The ISO was extended, pending final hearing, to 9 July 2023. Having concluded that an ISO should be made, his Honour made orders pursuant to s 7(4) of the Act for the appointment of a qualified psychiatrist and registered psychologist to conduct separate psychiatric and psychological examinations of the defendant, and to furnish reports to the Court. Dr Dayalan, a consultant forensic psychiatrist, and Dr Youssef, forensic psychologist furnished reports dated 9 June and 12 June 2023, respectively.

4. [4]

   The defendant’s background and history of offending is set out in [1] to [12] of the preliminary judgment:

5. [5]

   On 11 December 2021, the defendant allegedly assaulted another inmate whilst in custody. The defendant has been charged with assault occasioning actual bodily harm. The police facts sheet alleges that the defendant punched the complainant in the face 3 times causing a fractured eye socket. This matter has not been finalised and the defendant is currently on bail, with the matter next before Lithgow Local Court on 13 July 2023 for mention.

The Legislative Scheme

1. [6]

   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. [7]

   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. (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. (2)

      Mr Biggers is a supervised offender within the meaning of s 5I of the Act: s 5B(b).

   3. (3)

      The present application has been made in accordance with s 5I of the Act: s 5B(c).

3. [8]

   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. [9]

   The State tendered the following evidence:

   1. (1)

      Two affidavits of Lucy Nichols, solicitor, affirmed 17 February 2023 and 16 March 2023.

   2. (2)

      Affidavit of Nichole Ahern, chief psychologist of Intensive Therapeutic Programs at Corrective Services NSW sworn 16 March 2023.

   3. (3)

      Affidavit of Angela West, General Manager of the State-wide Classification and Placement Group, affirmed 16 March 2023.

   4. (4)

      Two affidavits of Alexandra Burkitt, solicitor affirmed 19 June 2023 and 27 June 2023.

   5. (5)

      The report of Dr Dayalan, psychiatrist dated 9 June 2023.

   6. (6)

      The report of Dr Yousseff, forensic psychologist dated 12 June 2023.

2. [10]

   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. [11]

   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. [12]

   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. [13]

   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. [14]

   Dr Youssef described potential risk scenarios:

5. [15]

   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. [16]

   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. [17]

   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. [18]

   Dr Dayalan also carried out a thorough document review and personal assessment. The following extracts from Dr Dayalan’s report are instructive:

9. [19]

   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. [20]

    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. [21]

    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. [22]

    I accept the plaintiff’s submissions as to the nature and extent of the unacceptable risk presented by Mr Biggers as comprising:

13. [23]

    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. [24]

   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. [25]

   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):

3. [26]

   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. [27]

   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. [28]

   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:

6. [29]

   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.

7. [30]

   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.

8. [31]

   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.

9. [32]

   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.

10. [33]

    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.

11. [34]

    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.

12. [35]

    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.

13. [36]

    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.

14. [37]

    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. [38]

   I make the following orders:

   1. (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. (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.