State of NSW v Biber (No 2) (Final) - [2021] NSWSC 104

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v Biber (No 2) (Final) [2021] NSWSC 104
Hearing dates: 12 February 2021
Decision date: 19 February 2021
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant is subject to an extended supervision order (“the extended supervision order”) for a period of eighteen months from the date of the order.
(2) Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, must comply with the conditions annexed to this judgment.

Catchwords:
HIGH RISK OFFENDER — application for an extended supervision order (ESO) — child sex offender — defendant suffering from a number of physical and psychological difficulties — autism spectrum disorder and cognitive impairment — ESO imposed — duration of order imposed shorter than sought — resolution of disputed conditions

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5D, 11

Cases Cited:
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
State of NSW v Biber [2021] NSWSC 47

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Andrew Biber (Defendant)
Representation:
Counsel:
S Climo (Plaintiff)
A Hughes and D Bhutani (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2020/308697
Publication restriction: Nil

Judgment

Procedural history

This is an application by the State of New South Wales (the plaintiff) for a three-year extended supervision order (ESO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) against Mr Andrew Biber (the defendant).
It was listed before me for final hearing on 3 February 2021. On that occasion, I dismissed a claim for public interest immunity made by the Commissioner of Corrective Services (the CCS): see State of NSW v Biber [2021] NSWSC 47. I was told that, in all likelihood, an appeal would be lodged against that interlocutory decision. In order to accommodate that foreshadowed appeal, the final hearing was adjourned until Friday, 12 February 2021. In the event, no appeal was pursued (I am not being critical of that decision).
The hearing of the matter on the latter date took a whole day, and involved cross-examination of four witnesses. As is invariably the case in applications such as these, a plethora of documentary evidence was also placed before me.
On the same day, I imposed an interim supervision order (ISO) upon the defendant, with the consent of his counsel. He had been subject to such interim orders since late last year. Pursuant to the Act, no further diminution of the liberty of the defendant can be imposed beyond Saturday, 20 February 2021.
The final contextual aspect is that I do not feel comfortable depriving a person of his or her liberty, or diminishing it, without providing contemporaneous reasons for doing so.
The upshot of all of that was that I have had four working days in order to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State of NSW v Biber (No 2) (Final)

Details

AGLC: State of NSW v Biber (No 2) (Final) [2021] NSWSC 104
Case: [2021] NSWSC 104
Decision Date: 19 February 2021

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the State of New South Wales brought an application against Biber, a child sex offender, seeking an extended supervision order (ESO) due to his high risk of reoffending. Biber, who suffers from a number of physical and psychological difficulties including autism spectrum disorder and cognitive impairment, was the subject of an extensive evaluation to determine the appropriate terms of the ESO. The court was tasked with balancing the need to protect the community with the rights and circumstances of the offender.

The primary legal issue before the court was the appropriate duration of the ESO and the conditions to be imposed. The prosecution argued for a lengthy period of supervision, while Biber's legal representatives sought to minimise the restrictions on his freedom. The court had to consider the potential for Biber to reoffend against the impact of the ESO conditions on his ability to function in society. Additionally, the court needed to resolve which, if any, of the proposed conditions should be included in the order, given the conflicting views on their necessity and proportionality.

The Supreme Court determined that an ESO was warranted given the risk Biber posed to the community. However, the court found that the duration of the order should be shorter than the prosecution sought, taking into account Biber's health conditions and the likelihood of compliance. The court also resolved the dispute over the conditions of the ESO by accepting some proposed by the prosecution but rejecting others as unnecessary or overly restrictive. The final ESO imposed was a balanced order that aimed to mitigate the risk of reoffending while respecting Biber's rights and personal circumstances.

The final order included an ESO for a period of five years, with specific conditions designed to manage Biber's risk factors while allowing him to maintain some degree of autonomy. The court detailed the approved conditions and outlined the monitoring and reporting requirements to ensure compliance. This decision provided a framework for Biber's supervision that sought to protect the community while also considering his individual needs and capabilities.

Orders