State of New South Wales v Biber (Final)

1. [1]

   Andrew Biber (the defendant) is a 40-year-old man with a history of serious sexual offending against female children between the ages of 13 and 15 in an online context. He is currently subject to an Interim Supervision Order (ISO), imposed by me on 6 February 2026 pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) (see State of New South Wales v Biber (Preliminary) [2026] NSWSC 62 (the preliminary judgment)). The ISO has been extended twice and is set to expire on 7 May 2026. The matter was initiated by way of summons filed on 21 October 2025.

2. [2]

   The matter is before me again seeking final relief in the nature of an Extended Supervision Order, or ESO, for a period of 18 months.

3. [3]

   The defendant concedes that the making of an 18-month ESO is open to the Court and does not wish to be heard against it. Should the ESO be made, the defendant initially opposed, or sought modification to, a small number of the proposed conditions. On the eve of the hearing, however, the parties came to an agreement in relation to all the contested conditions, and the conditions now sought by the State of New South Wales (the plaintiff) are agreed by the defendant.

4. [4]

   The final hearing of the plaintiff’s application came before me on 17 April 2026. Mr Bruffey appeared for the plaintiff and Mr Tuckey appeared for the defendant. I am grateful for the assistance of counsel and that of their instructing solicitors.

5. [5]

   Pursuant to the orders made on 6 February 2026, two experts furnished their reports to the Court in relation to the assessment of the defendant’s risk of committing another serious sex offence if not kept under the supervision of an ESO. The Court has received the expert reports of forensic psychologists Dr Carollyne Youssef dated 24 March 2026 and Dr Michael Davis dated 1 April 2026.

6. [6]

   In addition to these expert reports, the following documentary material was read without objection:

   1. (1)

      On behalf of the plaintiff:

   2. (2)

      On behalf of the defendant:

7. [7]

   In essence, it is contended by the plaintiff that:

   1. (1)

      Without the imposition of an ESO, despite modest recent improvements, the defendant continues to pose an unacceptable risk of serious sexual reoffending, particularly online reoffending;

   2. (2)

      The court-appointed experts support the making of an ESO; and

   3. (3)

      The defendant’s current risk can only be satisfactorily managed in the community under an ESO with the proposed conditions.

8. [8]

   Even though the defendant is not contesting the imposition of the ESO, the Court must still be satisfied that it is an appropriate order to make.

A brief background

1. [9]

   This background section is largely based on the Joint Statement of Agreed Facts and Issues (as at 14 April 2026), helpfully agreed between the parties. It appears to be an updated version of the document which was before me for the preliminary hearing. Some additional information comes from other material tendered before me.

2. [10]

   As noted, the defendant has a history of serious sexual offending against female children between the ages of 13 and 15, particularly in an online context. His criminal history includes charges and/or convictions for sexual, violent, weapons, property, driving, public order, larceny, shoplifting and drug related offences.

3. [11]

   The defendant’s childhood was generally stable, with no trauma, nor history of abuse. He suffered, however, from a number of health issues from a young age including spina bifida and epilepsy (with the last seizure he experienced having occurred when he was about 19 years old). He left school around the age of 13 to 15 years old, having been expelled or suspended a number of times prior to finally leaving school, and then being homeschooled by his parents.

4. [12]

   The defendant has been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, personality disorder (antisocial and borderline features) and substance abuse (now in remission). He has received the Disability Support Pension from the age of 16 on the basis of his various physical and mental health issues. He is also currently supported by the National Disability Insurance Scheme (NDIS).

5. [13]

   The defendant resides alone in private accommodation. Until recently, he resided in Koorawatha. However, on 29 January 2026, a fire spread from his neighbour’s house and burned his house down. He now resides in Lithgow, which is closer to his parents, from whom he regularly receives support and visits. His NDIS scheme allows for social and economic assistance with daily living and community participation for four hours, three times a week. Since moving to Lithgow, however, he no longer has his pre-existing NDIS supports, and as at 25 February 2026, no NDIS support had commenced.

6. [14]

   The defendant has had numerous intimate relationships with women over the years, including two serious relationships lasting five years and four years respectively. He has a 13-year-old daughter, born of a previous long-term relationship, who resides with her maternal grandmother in Western Sydney, and with whom he has had supervised contact. Having learnt of his offending history, the daughter had indicated that she did not wish this contact to continue. However, his daughter spent the most recent Christmas Eve with him and his parents, and according to his mother, they “got on very well”.

7. [15]

   As set out in my judgment of 6 February 2026, the defendant was previously under the supervision of an ESO which was imposed by Button J (the first ESO). As before Button J, the unacceptable risk contended for is the risk of the defendant committing another “serious sex offence”. The first ESO commenced on 19 February 2021 for a period of 18 months. It was suspended twice whilst the defendant spent time in custody for further offending. The first ESO expired on 12 February 2026.

8. [16]

   Until very recently, the defendant was also on parole, serving the balance of a sentence for offences of possess child abuse material and failing to comply with the first ESO. He was supervised by the Young Community Corrections Office, having most recently been released from custody on parole on 13 October 2024. That sentence expired on 13 February 2026. He is currently supervised by the Lithgow Community Corrections Office.

The index offence – “serious sex offences”

1. [17]

   The offences which enliven the Court’s jurisdiction are four counts of use carriage service to procure person under 16 years for sexual activity in contravention of s 474.26(1) of the Criminal Code (Cth). These are defined as serious sex offences under s 5(1)(b5) of the Act. The defendant was also convicted at the same time of two counts of use carriage service to menace/harass/offend in contravention of s 474.17(1) of the Criminal Code, and for failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (with a further nine counts of this offence taken into account on a Form 1).

2. [18]

   In brief, the facts of these offences are that between 1 July 2014 and 16 December 2016, whilst on the Child Protection Register (CPR) and aged approximately 28 years old, the defendant engaged in online communications with eight children under the age of 16. He contacted females between the ages of 13 and 15 on Facebook and over the phone and sought to have sexual contact with them. The defendant failed to report this contact in breach of his CPR obligations and failed to report online accounts he had in names other than “Andrew Biber”.

3. [19]

   The defendant’s contact with four of the victims (predominantly via Facebook and Facebook Messenger) were found to have been with the intention of procuring them for sexual activity. He made sexualised comments and requested the victims send him pictures of their breasts and genitals. He also sent them pictures of his penis and offered them drugs or money to meet up with him.

4. [20]

   In relation to another two victims, aged 14 and 15, the defendant sent messages which were harassing and offensive.

5. [21]

   The defendant was arrested, charged and taken into custody on 19 December 2016. He was sentenced by Buscombe DCJ on 23 November 2017 to a term of imprisonment of 2 years and 6 months, to commence on 16 June 2017 and expire on 15 December 2019. His Honour also ordered that after the defendant had served 15 months in custody, that he be released on a 15-month recognisance release order. He was released to the community on the recognisance release order on 15 September 2018.

Subsequent offending and imposition of first ESO

1. [22]

   On 4 November 2019, the police visited the defendant’s home and the defendant provided his phone to the police to be checked. The police found an HTML file saved to his phone which opened a website which contained over 100 images of child abuse material depicting real pre-pubescent children engaged in sexual acts and images focussing on the genital region of a child (or children). This included images of young female children and teenagers being sexually assaulted, posing in a sexual manner, and performing sexual acts. The defendant was also found to have a dating application (Tinder) account with a username of “Dre” about which he had failed to notify police, in contravention of his CPR obligations.

2. [23]

   The defendant was arrested and charged with an offence of possessing child abuse material and failing to comply with his reporting obligations under the CPR. On 17 April 2020, the defendant was sentenced to an aggregate sentence of 14 months’ imprisonment to commence on 5 November 2019 and expire on 4 January 2021. A non-parole period of five months and 13 days was imposed which concluded on the date of sentence. This conduct also amounted to a breach of the good behaviour condition of the recognisance release order imposed by Buscombe DCJ. This breach was dealt with by Buscombe DCJ on 15 April 2020 by the extension of the period of good behaviour for a period of 18 months from 13 December 2019 until 13 June 2021.

3. [24]

   On 28 October 2020, the plaintiff filed a summons seeking an ESO in respect of the defendant. An ISO was made by Bellew J on 20 November 2020, and on 19 February 2021, as noted, Button J imposed the first ESO for a period of 18 months. Button J found the defendant posed an unacceptable risk of further sexualised contact with persons under the age of consent by way of the Internet.

4. [25]

   Since the imposition of the first ESO, the defendant has been charged with criminal offences on two further occasions.

5. [26]

   On 19 February 2021, the same day the first ESO was imposed, the defendant was arrested, charged and remanded in custody in relation to offences of possess child abuse material, contravene Child Protection Prohibition Order (CPPO), use carriage service to menace/harass/offend and five counts of failing to comply with the ISO imposed by Bellew J on 20 November 2020. The facts underpinning these offences were as follows:

   1. (1)

      On 5 February 2021, the defendant added his ex-partner on Facebook where they exchanged messages on the platform, which included the defendant making various derogatory comments about his ex-partner’s 17-year-old daughter’s physical appearance, alleged behaviours including sexual preferences and substance use.

   2. (2)

      The defendant then sent several images of the 17-year-old, seemingly obtained from her Facebook profile, to his ex-partner, along with a photograph of a transexual person exposing their penis. When his ex-partner indicated that she planned to report his behaviour, the defendant deleted the messages without being aware that she had already saved them.

   3. (3)

      The defendant was charged with breaching his ISO by deleting material from his device and sending messages via the Internet without the approval of the Departmental Supervising Officer (DSO) and a breach of his CPPO by failing to be supervised while using the Internet.

   4. (4)

      On 17 February 2021, while at Parramatta Local Court, the defendant was observed by police to be using a tablet and watching YouTube videos in breach of the first ISO.

   5. (5)

      On 19 February 2021, police executed a warrant at the defendant’s home and located “a large amount” of pornographic videos and images on various devices. This material involved apparently consensual behaviour between adults. This constituted a breach of an ISO condition.

   6. (6)

      A USB was also found to contain child abuse material, including images of pre-pubescent female children, specifically a female child aged between 5 and 7 years old holding an adult penis, being orally penetrated by an adult penis, a 5 year old female vaginally penetrated by an adult penis, a 5 year old female touching her vagina, and an adult male standing on a child between 2 and 3 years old.

   7. (7)

      Finally, an iPod was located capable of accessing the Internet and storing electronic data, and the defendant declined to provide the password during the search. Further, he had not declared this device to his DSO.

6. [27]

   On 22 June 2021, the defendant was sentenced at Young Local Court to an aggregate term of imprisonment of three years with a non-parole period of two years.

7. [28]

   On 6 December 2021 the defendant successfully appealed this sentence, and the sentence was reduced to two years and nine months expiring on 17 February 2024, with a non-parole period of 15 months, ending on 17 August 2022.

8. [29]

   On 14 October 2022, the defendant’s premises were searched in accordance with his ESO conditions. In a Mariah Carey DVD case, 20 photographs with pornographic content were located. Five memory cards wrapped in tape were located hidden in a picture frame behind a photo of the defendant’s daughter. The memory cards contained 60 images of child abuse material. This consisted of pictures and videos of children in sexual poses and performing sexual acts including penile and vaginal intercourse. The children appeared to range from two years old to 15 years old. The memory cards also contained images and videos of adult pornographic content in contravention of an ESO condition, with some 433 images and 209 video files.

9. [30]

   During the search, the defendant claimed not to know the passwords to some of the devices in contravention of another condition of his ESO which required him to inform his DSO of all devices and their passwords.

10. [31]

    The defendant was charged with possess child abuse material and three counts of failing to comply with his ESO (two of which were taken into account on a Form 1).

11. [32]

    On 2 November 2023, the defendant was sentenced to an aggregate term of imprisonment of three years, with a non-parole period of one year and eight months, commencing on 14 February 2023. The non-parole period ended on 13 October 2024 and the head sentence expired on 13 February 2026.

Relevant prior offending

1. [33]

   In addition to the “serious sex offences” identified above, the defendant also has a prior conviction for another “serious sex offence”.

2. [34]

   In July 2011, when he was 25 years old, the defendant had penile/vaginal sexual intercourse with a 15-year-old girl he met at a train station. The defendant pleaded guilty to the offence of having sexual intercourse with a child of or above the age of 14 and under the age of 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). On 5 April 2012, the defendant was sentenced in relation to this offence to a supervised s 9 bond for 18 months. He was also placed on the CPR.

3. [35]

   In short, what occurred was that on 2 July 2011, the defendant approached the victim, then 15 years old, at Fairfield railway station, asking for a cigarette and struck up a conversation. They exchanged contact details. Two days later, the victim sent the defendant a “friend request” and the two began to correspond using Facebook, as well as texting on mobile phones. The victim’s carer became aware of the contact and told the defendant on 7 and 8 July to “back off” and informed him of the victim’s age.

4. [36]

   Despite that, on 10 July 2011, the defendant and an associate arranged to meet the victim at Marayong train station from where they travelled to the defendant’s home at Fairfield East and they watched movies together until about 10:00pm. After the defendant’s associate left at around 10:00pm, the defendant and the victim engaged in penile-vaginal intercourse in his bedroom. The defendant asked the victim to leave after he had ejaculated, however, she had no way of getting home so she stayed the night. She was dropped off to the train station the next day around 4:00pm and returned home.

5. [37]

   Police attended the victim’s residence on 12 July 2011 in relation to an unrelated issue and were informed by the victim’s carer of the correspondence between the victim and the defendant. The victim disclosed the sexual contact with the defendant to police.

Treatment and programs

1. [38]

   During his most recent incarceration, the defendant completed the “Explore. Question. Investigate. Practice. Succeed.” (EQUIPS) Foundations program on 8 May 2024 and the EQUIPS Addiction program on 28 June 2024.

2. [39]

   He was deemed unsuitable for the High Intensity Sex Offender Program (HISOP) in custody due to difficulties with group environments and learning impairments. On 10 October 2024, prior to his release on parole, the defendant was referred to Forensic Psychology Services for the HISOP but was deemed ineligible due to residing remotely.

3. [40]

   The defendant was also deemed ineligible for community sex offender programs due to residing outside of the metropolitan area.

4. [41]

   He was referred to the Treatment and Rehabilitation Clinic (TRC) on 10 October 2024, for targeted intervention to address problem sexual behaviours, with an initial assessment on 6 December 2024 with three psychiatric specialists, followed by two psychological sessions. He engaged well and his engagement with the service was subsequently suspended. He was discharged in March 2025 due to not presenting with problem sexual thoughts, urges, or behaviours and his needs were being met by other services.

5. [42]

   The defendant has also been referred to a Corrective Services NSW (CSNSW) Senior Psychologist for personalised intervention to assist him to manage high risk situations. As at 18 July 2025, he had completed ten sessions with ongoing fortnightly sessions planned if a further ESO were to be imposed. Due to his physical health and opioid treatment his engagement in these sessions has fluctuated.

Reports of the Court-Appointed Experts

1. [43]

   Dr Youssef assessed the defendant on 6 March 2026, in person, over approximately four hours.

2. [44]

   Dr Youssef diagnosed the defendant with autism spectrum disorder (ASD), and other specified paraphilic disorder (hebephilic disorder; non-exclusive type, sexually attracted to females). Dr Youssef also noted that the defendant has previously met the criteria for substance use disorder, but that is currently apparently in remission.

3. [45]

   Using the Static-99R actuarial risk assessment instrument, Dr Youssef assessed the defendant’s risk of sexual reoffending as in the “Well Above Average” risk category, relative to other male offenders. She noted the defendant remains “untreated” albeit “through no fault of his own”. She opined that the defendant is likely to benefit most from a treatment approach which is experimental in nature, focusing on behaviour rehearsal, skill acquisition, and “real time emotional processing”.

4. [46]

   Dr Youssef considered that the defendant’s risk can be effectively managed in the community under another ESO, the duration of which she recommended to be at least 12 months and up to 18 months.

5. [47]

   Dr Davis assessed the defendant on 16 March 2026, over video link, over approximately five hours.

6. [48]

   Dr Davis diagnosed the defendant with ASD, antisocial personality disorder and borderline personality disorder. He also noted the defendant’s recent use of buprenorphine meets the criteria for opioid use disorder (in partial remission). Dr Davis also opined that the defendant had previously met criteria for cannabis use disorder and stimulant use disorder (amphetamine-type substance), but that these were considered to be in full remission. He further opined that the defendant’s substance use disorders were not particularly concerning at present, and while he would need vigilance not to return to substance use in the future, there were positive indications that these problems may not recur.

7. [49]

   Dr Davis opined that the defendant currently posed a low-to-moderate risk for contact sexual recidivism, a moderate-to-high risk for online procuring offending involving pubescent and/or adolescent females, and a high risk for child abuse material recidivism.

8. [50]

   In Dr Davis’ view, a further ESO of 18 months should provide the defendant with sufficient time to demonstrate the required behavioural stability in the community which would reduce his risk of committing a serious sex offence under the Act.

9. [51]

   Dr Davis noted that the defendant had been provided with little in the way of offence-specific treatment since being placed on an ESO in early 2021. He opined that he was not entirely convinced treatment was “absolutely necessary” but if it were to be considered, he recommended it proceed on an individual basis, preferably with a clinical or forensic psychologist with particular experience in working with those with ASD and severe personality disorder.

Risk Assessment Report

1. [52]

   A Risk Assessment Report (RAR) was prepared by Katarzyna (Catherine) Sapula, Senior Psychologist, on 30 June 2025, pursuant to s 6(3)(b) of the Act.

2. [53]

   Ms Sapula assessed the defendant’s risk of committing further sexual offences as remaining “High or Well Above Average” on the basis of the STATIC-99R and the STABLE-2007 risk assessment instruments. In summary:

   1. (1)

      The defendant’s total STATIC-99R score as at 24 June 2025, was 8, placing him in the “Well Above Average” risk category, or Level 14b classification. The estimated sexual recidivism rate for sexual offenders with the same total score as the defendant is between 27% and 35.4% over five years. Given the defendant’s high density criminogenic needs, the recidivism rate of individuals with a score the same as, or higher than, the defendant would be expected to be 7.32 times higher than a “typical” sexual offender (that is, one with a score of 2).

   2. (2)

      The defendant’s total STABLE-2007 score as at 26 June 2025, remained at 16, suggesting a high density of criminogenic needs relative to other male sexual offenders.

   3. (3)

      The two scores were combined to generate a composite assessment of risks/needs as in the “Well Above Average” risk category, falling within the level IVb classification. This would suggest that the defendant requires a high level of intervention/supervision, according to the principles of “Risk/Needs/Responsivity”, as cited in the RAR.

3. [54]

   Further, as at 24 June 2025, the defendant scored 32 according to the Violence Risk Appraisal Guide – Revised (VRAG-R) instrument, scoring equal to or higher than at least 95% of offenders in the construction sample. This placed the defendant in the highest of the nine “risk bins”, suggesting his risk was in the “High” category, relative to other violent offenders. According to the VRAG-R, 76% of violent offenders in the ninth risk bin reoffended violently within five years, and 87% reoffended within 12 years.

4. [55]

   Ms Sapula identified the following criminogenic needs/dynamic risk factors as being the most relevant to the defendant: significant social influences; intimacy deficits; general self-regulation; sexual self-regulation; and co-operation with supervision.

5. [56]

   Ms Sapula considered that the most likely risk scenario for future sexual offending would involve the defendant befriending a teenage female via an online social networking platform, or alternately they may meet in person and then correspond online or via text/telephone. She also considered that the defendant may enter into a high-risk situation for domestic violence, given his history of non-serious violent offending against previous ex-girlfriends, which meant that his behaviour in such settings would need monitoring. Further, an additional possible risk scenario which Ms Sapula identified was that the defendant could access child abuse material and through this process encounter problematic connections in the real or virtual community to source, exchange, or solicit content that could constitute serious criminal conduct.

Some other reports

1. [57]

   A large number of reports were contained within the material before the Court. It is unnecessary to set out the details of them all, largely because the court-appointed experts have had regard to them in coming to their opinions. However, the content of some of the reports should be noted.

2. [58]

   In a Risk Assessment Report, dated 14 September 2020, prepared by Dr Samuel Ardasinski, it was observed that the defendant’s index offending demonstrated a consistent trajectory in relation to each victim, including the initial point of contact being a request to “friend” the defendant over Facebook; sexualised comments then being introduced into subsequent conversations; requests by the defendant for the victims to send intimate photos, with some photos of penises being sent in return by the defendant; with several victims, requests to meet in person, with incentives such as money, cigarettes or drugs; and when the victims had rejected the defendant’s advances early on, threats to send “dick pics” in retaliation or engaging in unwanted descriptions of fantasies involving the victims.

3. [59]

   In a Risk Management Report prepared by Lisa Luff dated 18 July 2025, Ms Luff concluded that despite the defendant being referred to a CSNSW psychologist for risk management interventions and referral to the TRC for biological and/or psychological programs to address his problematic sexual behaviour, he remained an untreated child sex offender.

4. [60]

   Ms Luff observed that the defendant had been compliant in accepting referrals for interventions and had expressed a willingness to further participate in programs and interventions that could assist him to progress to a pro-social lifestyle and remain out of the criminal justice system. She observed, however, that the defendant’s denial or minimisation of any sexual deviancy during supervision remained of concern, and he continued to be assessed as presenting with a higher-than-average risk of sexualised reoffending. Ms Luff noted that the defendant’s neurodevelopment, cognitive and personality challenges had an impact on his ability to understand and retain information for behavioural change.

5. [61]

   Ms Luff observed the defendant’s attitude had improved since his release from custody on 13 October 2024 and that he had been more accepting of supervision, his conditions, and his situation. She noted that the defendant stated he was motivated by his relationship with his daughter and the status of his mother’s health to remain out of custody. Ms Luff further noted that the defendant had sometimes expressed his frustrations with the limitations and conditions of his ESO through SMS, but that he had not acted on those. In addition, while the defendant remained stable, abstinent from illicit substances, and with a positive attitude to supervision, further progress could be made by acknowledging the limitations that came with his cognitive and intellectual deficits, neurodevelopmental impacts and personality challenges and by tailoring interventions at a pace and level that would have maximum impact. The defendant’s effective management would be contingent on his willingness to engage with supervision, interventions and supports in the community.

6. [62]

   Ms Luff opined that imposing conditions requiring the defendant to maintain ongoing participation in programs and interventions, as directed, would be essential for the defendant to gain insight into his risk factors and address his offending.

The statutory preconditions

1. [63]

   The Act provides a comprehensive statutory scheme outlining the legal test for both preliminary and final supervision orders. In the State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561, I set out a summary of the statutory scheme at [7]-[18] and I refer to those portions again. I have taken those matters into account.

2. [64]

   As noted, there is no contest that the statutory conditions have all been satisfied and I am independently satisfied that the threshold requirements in s 5B(a)-(c) of the Act have been met. In particular, the defendant is an offender as defined in s 4A of the Act as he is over 18 years of age and has served a full-time sentence of imprisonment following a conviction for a “serious offence”. He is a “supervised offender” as defined in s 5I of the Act, on a number of bases. The application was made within the last nine months of the defendant’s then current supervision which expired on 13 February 2026 and is supported by the documentation, as required by s 6 of the Act.

3. [65]

   Further, pursuant to s5B(d) of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if he is not kept under supervision under an ESO.

4. [66]

   In coming to this satisfaction, I note, in particular, a number of matters derived from the material before me.

5. [67]

   The defendant’s consistent, lengthy criminal history demonstrates his longstanding pattern of sexual interest in female children and include offences of a sexual nature committed whilst subject to an ESO in 2021 and 2022, involving child abuse material.

6. [68]

   Further, the defendant reported recently to Dr Youssef that he was sexually attracted to adolescent females but later qualified this to note it was only when he was under the influence of substances. However, he also told Dr Youssef he was attracted to underage females because he found them easier to communicate with, and not necessarily because of their appearance. In any event, this concession is consistent with the defendant’s lengthy history of sexual offending involving girls under the age of consent.

7. [69]

   Relatedly, the defendant has minimised his offences and demonstrated little insight into the wrongfulness of his offending. For instance, the defendant did not appear to understand that an indication that a child was not “scared” and stayed overnight (in relation to the offending set out above at [33] – [36]) was irrelevant to his liability for that crime.

8. [70]

   As noted, in his account to Dr Youssef, the defendant attempted to attribute his past offending to his substance abuse. However, on closer analysis, substance abuse does not appear to explain all of his offending, and he has given inconsistent accounts about the presence or significance of drug use at the time of various offences. I agree with the plaintiff’s submission that the evidence before the Court shows that drug misuse is not the only factor informing the defendant’s offending history and risk of reoffending. Accordingly, the fact that the defendant is apparently currently drug-free does not sufficiently mitigate the risk he poses.

9. [71]

   In addition, as noted above, the defendant was assessed by Dr Youssef as at a “Well Above Average” risk of sexual offending, and by Dr Davis as at a moderate-high risk of online-procuring offending. Both doctors assessed the risk as no different from when they last assessed him in relation to the first ESO, and that any progress has been modest and recent. It is still the case, as I noted in February in the preliminary judgment, that the defendant is yet to achieve a prolonged period in the community without offending. His recent improvement is relatively new and may not be sustained if the support in the community is not continued.

10. [72]

    I also note that the defendant has had a history of difficulties engaging with supervision and breached the first ESO. Whilst there have been signs of recent improvement, there is yet to be any established pattern of unproblematic engagement.

11. [73]

    I further consider that the defendant’s recent changed living arrangements may also prove challenging for the defendant. As noted, his previous NDIS supports have yet to be reestablished (so far as the Court has been informed), and it is noted by Dr Youssef that the defendant has not yet established a consistent daily routine. Even though he denies being lonely, he reported being easily bored.

12. [74]

    Another significant factor is that the defendant is regarded by the experts as an untreated offender. He has yet to have had targeted psychological support, has not yet developed proven strategies to assist with daily challenges nor has he developed insight into his vulnerabilities which may lead to reoffending. A further ESO would give him an opportunity to participate in targeted individualised counselling, as recommended by Dr Youssef.

Consideration of s 9(3) factors

1. [75]

   The section 5B factors having been satisfied, I now turn to s 9 of the Act. Section 9(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court. The exercise under s 9 requires the exercise of a discretionary judgment. A non-exhaustive list of matters I must consider is found in s 9(3). I may also have regard to “any other matter [I] consider relevant”. Given the defendant does not wish to be heard against the making of the ESO, this section can be less detailed than it would be otherwise.

2. [76]

   I have referred to these reports and results above and will not repeat that material. I note that the defendant appeared to engage appropriately in the examinations conducted.

3. [77]

   The defendant has undergone many assessments by such professionals. That material has either been referred to above directly or has been considered in the reports of the court-appointed experts.

4. [78]

   I have referred to Ms Luff’s Risk Management Report above.

5. [79]

   As noted, the defendant is regarded as an untreated sex offender, albeit through no fault of his own. The defendant has indicated a willingness to participate in relevant treatment.

6. [80]

   As noted, the defendant breached his first ESO. He has also breached his parole by committing further offences. However, it is conceded that more recently he has been compliant and has shown a more positive attitude. There are positive indications that he will comply with the conditions of a further ESO.

7. [81]

   The defendant’s criminal history and pattern of offending behaviour has been canvassed above.

8. [82]

   I note the views of the sentencing judge for the index offending were that the defendant’s prospects for rehabilitation were no more than guarded and that the defendant had very little insight into the true nature of his offending. I also further note the more recent sentencing remarks, from November 2023, including the sentencing judge’s recommendations “in the strongest of terms” that the defendant’s release to parole should be supervised and should include obeying all reasonable directions relating to ongoing treatment and counselling for substance abuse issues and mental health issues.

Conclusion

1. [83]

   Taking into account all the matters set out above, and with the safety of the community as the paramount consideration, I am of the view that I should make an ESO subject to conditions. Without such supervision, the defendant continues to pose an unacceptable risk of serious sex offending. Although there are some signs of growing maturity, the defendant has yet to demonstrate appropriate insight into his risk factors, and a further period of supervision would assist in embedding pro-social patterns and behaviours.

2. [84]

   Mr Biber has spent the last 18 months or so in the community under supervision. Dr Youssef is of the view that a further ESO of 12 to 18 months is appropriate. As to Dr Davis, although he noted that the defendant’s risk could possibly be managed in the community “in the near future without a further order”, he also noted that a further ESO of 18 months should provide Mr Biber with an appropriate time period to demonstrate the required behavioural stability in the community which would reduce his risk of committing a serious sex offence under the Act.

3. [85]

   I am of the view that an ESO for a period of 18 months is appropriate especially given the recent disruption to the defendant’s living arrangements, and in light of the fact that the defendant has yet to undergo any targeted treatment.

4. [86]

   Section 11(1) of the Act provides that an ESO may direct an offender to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

5. [87]

   In determining what is “appropriate”, it is accepted that the discretion is broad but must be exercised whilst having regard to the scope and purpose of the Act and its objects: Wilde v New South Wales [2015] NSWCA 28; 249 A Crim R 65 at [47] (per the Court). At [53], the Court further stated:

6. [88]

   As set out in Lynn v New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129] the determination of appropriate conditions is a balancing exercise:

7. [89]

   It is accepted that this step engages a balancing exercise involving possible intrusions on the defendant’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a person to comply with the requirements of an ESO is an offence pursuant to s 12 of the Act and is punishable by a fine, imprisonment, or both.

8. [90]

   As noted above, any contentious conditions sought by the plaintiff have now been the subject of discussion between the parties and subsequent amendment and/or agreement. I have satisfied myself that the conditions now sought by the plaintiff and agreed to by the defendant are appropriate and will support his emerging maturation. The conditions will address the defendant’s risk factors by providing him with structure, routine and responsibility, assist him with forward planning, the building of meaningful activities during the day, and will provide opportunities for treatment and counselling.

Orders

1. [91]

   The orders I make are as follows:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of eighteen months commencing on 24 April 2026.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the Schedule annexed to this judgment for the period of the extended supervision order.