State of New South Wales v Kamm

Supreme Court of NSW|2015-12-14|Before: Harrison J

Judgment

HIS HONOUR: By its amended summons filed on 1 October 2015, the State of New South Wales seeks final orders pursuant to the Crimes (High Risk Offenders) Act 2006. Mr Kamm is currently on parole. Any decision about these orders must be made before 12 January 2016.

Background

Mr Kamm is a 65 year old male with a history of sexual offending against under-age females. He established a religious community at Cambewarra, near Nowra, which became known as "The Order of Saint Charbel". Mr Kamm claimed to have received visions or visitations from the Virgin Mary.
Mr Kamm was and is known as the "Little Pebble". He described himself as a visionary who had been told by God or the Virgin Mary that he was to be the last Pope. He claimed to be able to communicate regularly with the Virgin Mary, and would write down what she said and pass these messages on to followers. Mr Kamm also prophesied that there would be a new holy era when he would have 12 queens and 72 princesses, who would assist in bringing forth his children in an immaculate race. The 12 queens and 72 princesses would be chosen by the Virgin Mary. The 12 queens would bear his children. The 72 princesses would be able to marry others but would also bear his children if they wished. The children produced by the queens and princesses would be the product of Mr Kamm's "mystical seed".

Evidence

In support of the present application, the State relies upon the following affidavits: 1. Two affidavits of Brett Thomson sworn 21 September 2015, one sworn 28 September 2015 and one sworn 25 November 2015. 2. An affidavit of Paul Yeoman affirmed 28 September 2015. 3. An affidavit of Ellen McCarroll affirmed 30 September 2015.
Exhibited to the second affidavit of Mr Thomson are four folders of tabulated documents entitled "Exhibit BT-1", comprising the State's tender bundle in these proceedings.
In addition, the State relies upon the reports of the two court-appointed experts. Dr O'Dea's report is dated 3 December 2015. Mr Sheehan's report is dated 15 November 2015.

Threshold requirements

The Act sets out certain threshold criteria for the making of an application for an extended supervision order ("ESO") under the Act: s 5I. The State may apply to the Supreme Court for an ESO for a high risk sex offender only where: (1) At the time of the filing of the application the offender is a supervised sex offender, meaning a sex offender serving a sentence of imprisonment - which is taken to include the serving of a sentence of imprisonment while the offender is on release on parole (s 5I(3)) - for "a serious sex offence" or "an offence of a sexual nature" or for another offence which is being served concurrently and/or consecutively with a sentence of imprisonment for such an offence: s 5I(1)-(2). (2) The offender in respect of whom the application is brought is a "sex offender". (3) The application is brought within the last 6 months of the offender's current custody or supervision: s 6(2).
The expression "serious sex offence" is defined by s 5(1) of the Act to include an offence under Division 10 of Part 3 of the Crimes Act where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more.
At the time of the commencement of these proceedings, Mr Kamm was serving two concurrent sentences of imprisonment for the offence of sexual intercourse with a child above the age of 10 years and under the age of 16 years, in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act, being an offence under Division 10 of Part 3 of the Crimes Act. At the relevant time, the offence carried a maximum penalty of 10 years imprisonment. The offence therefore qualifies as a "serious sex offence" within the meaning of ss 5(1) and 6 of the Act.
The offence also qualifies as an "offence of a sexual nature". In this respect, s 5(2)(a) of the Act defines an "offence of a sexual nature" to include an offence under Division 10 of Part 3 of the Crimes Act.
Further, Mr Kamm is a "sex offender" as defined in s 4 of the Act, and referred to in s 5I, because he is a person over the age of 18 years who has been sentenced to imprisonment following his conviction for a serious sex offence.
Mr Kamm's sentence for the offences of sexual intercourse with a child above the age of 10 years and under the age of 16 years expired on 13 October 2015. The application for an ESO was filed before that date, and within the six month period permitted by the Act.

Relevant statutory provisions and applicable principles

The primary object of this 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. Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
Subsection 5C(1) provides that on an application being made under the Act, the Supreme Court may make an order for the supervision of an offender if the offender is a "high risk sex offender". Subsection 5B(2) provides that an offender is a "high risk sex offender" if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
Section 9 applies to an application for an ESO. Under s 9(1) a court that has received an application for an ESO has two options available to it: either to make an extended supervision order or to dismiss the application. Subsection 9(3) sets out a list of matters to which the Court must have regard in determining whether or not to make an ESO in addition to any other matter the court considers relevant.

"Satisfied to a high degree of probability": s 5B(2)

The phrase "satisfied to a high degree of probability" constitutes the statutory standard of proof enlivening the Court's jurisdiction to grant an ESO. It is higher than the civil standard but lower than the criminal standard. Prior to the commencement of the Crimes (Serious Sex Offenders) Amendment Act 2013, the phrase "satisfied to a high degree of probability" appeared in s 9(2), as part of the test to be met for the grant of an ESO under s 9(1)(a).
In State of New South Wales v Fisk [2013] NSWSC 364 Beech-Jones J observed at [22] that the structure of the Act in its current form (which now accommodates the making of orders against high risk violent offenders as well as high risk sex offenders) appears to require that the Court first undertake a determination of whether a person falls within the definition of a "high risk sex offender" (under s 5B(2)) having regard to the relevant standard prior to considering whether or not to make an ESO, and that it is only once the Court has made a determination that a person is a high risk sex offender that the criteria in s 9(3) are to be addressed.

"Unacceptable risk of committing a serious sex offence": s 5B(2)

The phrase "unacceptable risk of committing a serious sex offence" was introduced into s 9(2) of the Act by the Crimes (Serious Sex Offenders) Amendment Act 2010, which commenced operation on 7 December 2010. It replaced the concept of "likely to commit a further serious sex offence". When the Crimes (Serious Sex Offenders) Amendment Act 2013 was introduced on 19 March 2013 to establish a scheme for the extended supervision or continued detention of violent offenders, the phrase was relocated to s 5B(2) of the Act.
Subsection 5B(3) makes clear, as did the former s 9(2A), that the Supreme Court is not required to determine that the risk of a person committing a serious sex offence is "more likely than not" in order to determine that the person poses an unacceptable risk if he or she is not kept under supervision. The phrase "unacceptable risk" is not defined by the Act. However, as s 5B(3) makes clear, the new test was not intended to elevate the threshold test to be satisfied.
In State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [22], R A Hulme J proceeded on a consensual basis that the new formulation does not impose a more stringent test than that which it replaced. At [20], his Honour expressed a tentative view that the test in (the former) s 9(2) was "satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made."
In State of New South Wales v Darrego [2011] NSWSC 360 at [5], McCallum J expressed concern that such a formulation puts a gloss on the precise words of the section: "The test in s 9(2) turns on the Court's assessment of the risk posed by the offender of committing a serious sex offence if unsupervised and the Court's judgment as to whether that is an unacceptable risk." Without expressing a concluded view her Honour said at [11]: "[11] It may be preferable not to dilate upon the circumstances that would satisfy the statutory test even in terms that mirror the language adopted in the statement of the objects of the Act. The task for the Court is to form a judgment after considering the relevant risk as to whether that risk is unacceptable."
Her Honour also suggested at [9]-[10] that the Court's approach on the matter might usefully be informed by cases in relation to medical negligence and the concept of material risk.
In State of New South Wales v Conway [2011] NSWSC 588, Simpson J at [30], without expressing a final view on the issue, stated a preference for the approach taken by R A Hulme J in Thomas. Ultimately, in the final hearing in Thomas [2011] NSWSC 307 at [58], R A Hulme J, in ordering that the defendant be subject to an extended supervision order, gave the words in s 9(2) their ordinary meaning, in the context in which they appeared and having regard to the objects of the Act.
In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276, Davies J referred to two decisions of the Western Australian Court of Appeal dealing with the cognate legislation in that State. In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110, Wheeler JA said at [63]: "[63] In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."
Davies J also referred to the approach adopted by Steytler P and Buss JA in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149 at [27]: "[27] The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for (sic) the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case'."
In applying the s 9(2) test, Davies J said at [90]: "[90] Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words 'a high degree of probability'. The second is the notion that 'unacceptable risk' involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk."
Davies J concluded that the defendant in that case posed an unacceptable risk of committing a serious sex offence even though he had committed only one (albeit a very violent) sexual offence.
In State of New South Wales v Cruse [2013] NSWSC 1733 Davies J adopted the same approach to the meaning of unacceptable risk in s 5B(2) of the Act as he had taken in Richardson in respect of the former s 9(2), observing at [8] - [12] that the "learning which had developed in relation to s 9(2) is equally applicable under the amended form of the Act."
In Attorney General of New South Wales v McGuire [2015] NSWSC 152 Hoeben CJ at CL conducted the preliminary hearing in an application under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 for the extension of the defendant's status as a forensic patient. In that context, his Honour considered comparable wording in the Crimes (High Risk Offenders) Act, including the phrase "unacceptable risk". His Honour noted what he described as a "difference of opinion" that had emerged in first instance decisions in New South Wales under the 2006 Act. His Honour contrasted the approach taken by RA Hulme J in Thomas - to the effect that the words "unacceptable risk" ought to be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act - with the "balancing exercise" approach taken by Davies J in Richardson (No 2). Hoeben CJ at CL said at [44]: "[44] There are thus two approaches which have been taken at first instance decisions in NSW as to what factors the Court ought to have regard to in considering what will constitute an 'unacceptable risk'. The issue as to which of these approaches is correct remains to be resolved. I am of the opinion that the preferable approach is that adopted by R A Hulme J and I propose to apply it in this case."
In State of New South Wales v Mackey (No 2) [2015] NSWSC 1153 at [26]-[27], Schmidt J agreed with Hoeben CJ at CL in McGuire endorsing the approach taken in Thomas.
In the present case the State emphasised a series of propositions concerning the jurisprudence on the "unacceptable risk" test and the requirements of that test as it appears in s 5B, read in the context of the Act as a whole.
First, it is preferable to avoid putting a gloss on the words of the statute which require the Court to consider matters such as the nature and likelihood of the relevant risk and form a judgment, based on the evidence, as to whether Mr Kamm poses an unacceptable risk of committing a further serious sex offence. The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.
Secondly, while it appears that the Court is not required to consider all of the factors listed in s 9(3) in determining whether or not it is satisfied under s 5B(2) to a high degree of probability that a person poses an unacceptable risk of offending (as it must when determining, under s 9, whether or not to make an ESO order at all), those factors should nevertheless inform the s 5B(2) analysis: see Fisk at [22].
Thirdly, it is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low.
Finally, while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.
Decision-making about unacceptable risk is highly fact-dependent but takes place at least in the context of ensuring community safety and protection.

Discretion not to make an ESO

Under the Act, if the State discharges its burden to establish that the offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3). However, where a court is satisfied according to the relevant standard that the offender is a high risk sex offender, it would be an unusual case before the court would decide in its discretion not to make an ESO under s 9.
In the present case, the State submitted that there were no strong discretionary considerations against the making of such an order in the event that Mr Kamm is found to be a high risk sex offender.

The s 9 factors relating to Mr Kamm

As noted above, in considering whether an offender is a high risk sex offender for the purposes of s 5B, regard may be had to the relevant factors listed in s 9(3). Those factors may bear upon both the threshold state of satisfaction as to whether Mr Kamm is a high risk sex offender who may be subject to an ESO under ss 5B and 5C of the Act and the exercise of the discretion to make an ESO under s 9.

Mr Kamm's offending history: s 9(3)(h)

On 24 August 2007 Berman DCJ sentenced Mr Kamm following a trial with a jury in respect of six sexual offences relating to the one victim.
The factual circumstances relating to the offences are set out in his Honour's remarks on sentence and also in the judgment of Court of Criminal Appeal. Judge Berman described Mr Kamm as "the head of a religious organisation with many, many followers throughout the world."
The six counts charged related to conduct engaged in by Mr Kamm in 1994 and 1995, and included penile-vaginal intercourse and digital-vaginal intercourse. The offences took place at a motel and at least one other location. The victim cried out in pain. At the time of the offences charged, the victim was 14 or 15 years old.
In the Court of Criminal Appeal in Kamm v The Queen [2008] NSWCCA 290 Giles JA said: "[3] The appellant [Kamm] was the leader of a religious community known as the Order of St Charbel. Members of the community lived in houses and caravans on a property near Nowra in New South Wales. The appellant was known as The Little Pebble. He claimed to communicate with and receive messages from the Virgin Mary. He prophesied the end of the world and a new era of paradise on earth for the community, and his teachings included that 12 queens would be chosen by the Virgin Mary to bear his children and 72 princesses would be chosen able to marry others but to bear his children if they wished. All would become the appellant's wives and the child-bearing would provide the foundation for repopulation in the new era."
In his sentencing remarks, Judge Berman described Mr Kamm, the religious community he established, and his connection with the victim as follows: [2] The offender is the leader of a religious order based around a community at Cambewarra near Nowra on the South Coast of New South Wales. He has many followers, many of whom live as part of that community. He claims, and his followers believe, that through some miraculous process he is able to communicate directly with the Virgin Mary, for some reason, this regularly occurring on thirteenth of each month. He writes down what she says and these messages are passed onto his followers. [3] At times some of his followers sought to ask the Virgin Mary specific questions. The process which was followed was that the member of the community would write down some questions and the offender would pretend to have received the Virgin Mary's answers to those questions, which he would also write down and give to the person who was seeking the information. [4] This gave the offender a powerful way over which he could manipulate the beliefs and actions of his followers. In particular he was able to control the actions and desires of young girls with whom he wanted to have sex. Thus in the present case the complainant wrote a number of letters to the Virgin Mary and the offender pretended to receive answers from her to those questions, which were then passed on to the complainant. [5] The questions were very poignant at times, demonstrating the normal everyday concerns and wishes of a young girl. Not surprisingly, given the age of the complainant at the time, the questions she asked were those of a child, not of a mature woman. The offender's response, which I repeat he pretended came from the Virgin Mary, was directed to persuading her to do things which would satisfy his sexual desire for her. That appears to have been the primary focus of the offender's written communications with the complainant. [6] The offender told his followers many strange things. One of them, of central importance to the present case, was that there would soon be a new era, that he would be the last pope, living in Germany, and that he would be able to choose twelve queens and seventy-two princesses who were responsible for repopulating the earth once the new era had arrived. [7] One thing that the princesses and queens had in common was that this process of repopulation would come about through them becoming pregnant to the offender after impregnation with his 'mystical seed'. … [12] The complainant moved into the community with her family when she was a very young girl. Her mother was, and indeed remains, a devoted follower of the offender, so much so that she consented to the offender having sex with two of her daughters, even while he was married to a third. In those circumstances, it is in no way surprising to find that the complainant told no-one in authority outside the community about what the offender was doing to her until she left the community in 2002."
On the Crown's case, which the jury by its verdict should be taken to have accepted, Mr Kamm's sexual relationship with the victim commenced in 1994 when she was 14 years old and had been chosen by him as a "queen". Mr Kamm was then 45 years old. He did not give evidence at the trial. Through his counsel, he did not dispute that he had a sexual relationship with the victim, but contended that it commenced when she was over the age of 16. However, there was evidence, including letters and a diary entry that corroborated the victim's account that the sexual relationship commenced when she was 14 years old. Judge Berman described the Crown case against Mr Kamm as "remarkably strong."
In sentencing Mr Kamm, Judge Berman said: "I am satisfied that the offender does not genuinely believe that the Virgin Mary told him to have sex with the complainant. The offender's belief is remarkably convenient for a person who wants to have sex with underage girls. I am satisfied he deliberately manipulated the complainant's beliefs, not because he wished to repopulate the earth, but simply because he wanted to have sex with her when she was fourteen years old."
Judge Berman took into account the delay between the offending conduct and the imposition of sentence. However, his Honour referred to what was, in effect, Mr Kamm's ability to prevent his offending conduct coming to light for a lengthy period: "… I note that this was not a case where the offender has lived in fear of the knock on the door for many years. What the offender did, by manipulating both the complainant and her family, was to ensure that she would not complain to anyone outside the community about what the offender was doing to her. It was part of the offender's manipulative efforts that he was able to commit these offences without any fear that the authorities would discover them."
Judge Berman further said of Mr Kamm's offending behaviour: "I find that the offence was part of a planned criminal activity. Indeed, the offender's modus operandi was to pursue the complainant and her parents through the use of fabricated communications with the Virgin Mary, to make them do something they would clearly not otherwise have done. The offender set out to achieve the objective of having sex with an underage girl and used his religious beliefs to achieve his ends. As I have mentioned, part of his planning also ensured that the risk of disclosure to people outside his religious community was minimised."
Judge Berman regarded the harm caused to the victim as being substantial, and that "she has suffered enormously, and will continue to do so, perhaps for the rest of her life." His Honour also referred to the significant collateral harm caused by Mr Kamm: "That the offender procured the complainant's acceptance of her unfortunate duty to have sex with the offender, through involving the complainant's family in his manipulations, has led to a significant and long lasting split in the complainant's family. The offender's conduct has also severely damaged the complainant's religious beliefs and her ability to attend church."
Judge Berman noted that Mr Kamm had committed, and been sentenced for, prior sexual offences against another young girl who was also taken advantage of by his manipulations. He regarded Mr Kamm as not being a person with a prior good character. His Honour said: "The offender now stands to be sentenced for six specific offences, but he is certainly not entitled to any leniency on the basis that these were isolated matters. The offender had an ongoing sexual relationship with the complainant which began in 1994 and ended in 1999 when she became pregnant with the offender's child."
In respect of the five offences under s 66C(2), Judge Berman imposed sentences, largely concurrent, of 5½ years, with a non-parole period of 3 years. For the offence of commit act of indecency under s 61O(1), his Honour imposed a 6 month fixed term of imprisonment.
The effective total sentence imposed was a term of imprisonment of 10 years commencing on 14 April 2009 and expiring on 13 October 2015, with a non-parole period of 7 years and 6 months. Mr Kamm was eligible to be released on parole on 13 April 2013.
On 10 December 2008 the Court of Criminal Appeal dismissed Mr Kamm's appeal against his conviction.

2005 conviction for prior sex offences

On 14 October 2005 Williams DCJ sentenced Mr Kamm in respect of five sexual offences relating to the one female victim committed in 1993. The victim was then 15 years old. Mr Kamm was found guilty after a lengthy trial. The offences were not reported to police until mid-2002. Mr Kamm was arrested on 8 August 2002.
The count of aggravated sexual intercourse involved digital penetration for between 15 and 20 minutes with associated kissing and fondling, while the indecent assault counts included kissing using his tongue and fondling of breasts and groin. In each case, the aggravating circumstance was that the victim was then under Mr Kamm's authority.
The victim's family had moved to Mr Kamm's religious community in 1991. Mr Kamm presented himself as receiving visits from the Virgin Mary and being able to communicate with her.
Shortly prior to the first of the offences, Mr Kamm wrote a letter to the victim stating that she was to be one of his wives or "queens". Judge Williams described the victim as "a very young immature girl at the time." Her parents were overwhelmed by the apparent honour being accorded to their daughter, and supported the spiritual component of the relationship between her and Mr Kamm. Judge Williams said "it was in those circumstances that Mr Kamm began his sexual predations on this incredibly vulnerable young girl."
Mr Kamm did not give evidence at the trial. Through his counsel, he challenged the victim's version of events and contended that any kissing that occurred was not indecent. A number of contemporaneous letters from Mr Kamm, which included sexually flirtatious language, corroborated the victim's account. Judge Williams said: "… he denies the offences took place and does not accept any responsibility for his actions nor does he think that his letter writing in particular was inappropriate."
Judge Williams said of Mr Kamm's predatory conduct: "… there was an inexcusable and gross breach of trust on his part that cannot possibly be explained or justified by reliance on any heavenly plan or permission. That breach led to a displacement of the relationship between the complainant and her own family, a traumatic shattering of this young girl's spiritual and emotional well-being and a disruption of her life and ongoing education at a crucial time in her development."
Judge Williams referred to a pre-sentence report which recorded Mr Kamm saying he was not guilty of the offences. The probation officer also noted that other persons interviewed during the preparation of the report shared similar beliefs and had overtly attempted to vilify the victim during discussions. Judge Williams referred also to a psychological report that included assessment of dynamic risk factors applicable to Mr Kamm.
In considering the aggravated sexual assault, his Honour referred to the following factors: "There was a significant age difference between Mr Kamm and his victim; the nature of the authority in question would, in all the circumstances that prevailed, place it at a higher level than would be the case say between a teacher and a pupil; the assault was protracted, lasting some fifteen to twenty minutes and she was, because of the special circumstances that existed, more vulnerable than might be expected of another young woman of a similar age. Mr Kamm's behaviour was not acceptable in the community at large and, one would think, even less acceptable in the community of which he purports to be the spiritual leader."
Judge Williams also said: "I am concerned that in light of the reports available, there is a significant risk of re-offending. I am also concerned that Mr Kamm appears to have little or no insight into the wrongs of his behaviour."
In respect of each of the four counts of indecent assault, Judge Williams sentenced Mr Kamm to imprisonment for a fixed term of imprisonment of 12 months to date from 14 October 2005. In respect of the aggravated sexual assault, Judge Williams sentenced Mr Kamm to imprisonment for four years from 14 October 2006 to 3 October 2010, with a non-parole period of 2½ years. The effective total sentence was thus imprisonment for 5 years, with a non-parole period of 3½ years.
On 9 July 2007 the Court of Criminal Appeal dismissed Mr Kamm's appeal against his conviction: Kamm v The Queen [2007] NSWCCA 201.
Mr Kamm has no recorded convictions for non-sexual offences.
During his present incarceration, Mr Kamm incurred institutional misconduct findings in January 2012 and June 2013 for providing false or misleading information to corrective officers (attempting to place the name of a friend, previously identified with his religious order, under the category of legal phone numbers, which would not then be monitored by staff), and unlawfully using a telephone.

The views of the sentencing court in respect of the index offence: s 9(3)(h1)

The remarks on sentence of Judge Berman have been referred to above. His Honour categorised Mr Kamm's conduct as predatory and noted the significant harm caused to the victim.
By the sentence imposed, which allowed for operation of the statutory ratio, Judge Williams anticipated that Mr Kamm could be supervised in the community for up to 3 years. In the events that have occurred, Mr Kamm spent less than 12 months on parole.

Compliance with parole and supervision obligations - s 9(3)(f), (i)

Mr Kamm became eligible for release on parole on 13 April 2013. The State Parole Authority refused his parole on March 2013 and again on September 2013 at a time when he had yet to complete the CUBIT sex offender treatment program.
On 14 November 2014 Mr Kamm was released on parole. His conditions of parole included being subject to electronic monitoring. He was also subject to a curfew and to a direction not to associate with any persons currently or previously associated with the Order of Saint Charbel, unless approved by his supervising officer.
Corrective Services NSW's ESO Team has provided intensive supervision to Mr Kamm while on parole. A progress report dated 13 February 2015, prepared for the State Parole Authority, recorded that he had been compliant in respect of the conditions of his parole order and directions issued to him. He was described as having engaged co-operatively in his supervision.
However, the progress report also noted that Mr Kamm continued to verbalise his innocence of the sexual offences for which he had been convicted and to maintain his robust religious beliefs. Christian icons dominated areas of his approved accommodation.
Mr Kamm married his current wife in December 2014 and resides with her in a rented unit in Sydney. His wife resided in his religious community for approximately 18 years from 1984 to 2002. She was reportedly one of the "queens" in his community during the 1990s.
The progress report noted, as a matter of concern, that Mr Kamm had made several attempts to have contact with individuals who are identified as supporters from the St Charbel community, and that only minimal contact had been permitted. This is reflective of his institutional misconduct.
Prior to being released on parole, Mr Kamm had sought permission from Community Corrections to be able to reside at the location of his religious order at Cambewarra. He gave contact details for two people associated with the religious order, including a "Superior" of the order known as "Bishop Malcolm Broussard". Mr Broussard was, in effect, Mr Kamm's second-in-charge at the time of his sexual offending and prior to his arrest. Mr Broussard continues to be a supporter.
During his parole period, Mr Kamm had contact with Mr Broussard. Mr Kamm describes him as currently in charge of the religious community. Mr Broussard has publicly espoused Mr Kamm's innocence. On the day of the sentencing on 14 October 2005, Mr Kamm issued a general announcement that included the remark that "It would seem on the surface that the dark forces of evil have won a victory…"
Mr Kamm has also had contact with Mrs Janice Williams, who Mr Kamm identifies as a support person. She is also associated with Mr Kamm's religious order at Cambewarra, and is a person who Mr Kamm describes as looking after his business and personal affairs. Mr Kamm also states that he continues to receive gifts from his followers.
A document dated 17 December 2014 records Mr Kamm seeking approval to apply to the Registrar of Births, Deaths and Marriages to register a change of his name to William John Costellia.
Mr Kamm has reported that he is in the initial stages of forming a political party.
Since his release from custody, Mr Kamm has also had difficulties and instances of reported conflict with a former wife in connection with contact visits with their daughter. This has included mutual allegations of improper conduct.

Mr Kamm as a charismatic and mesmerising figure: s 9(3)(i)

Mr Kamm has a demonstrated capacity to present as a charismatic and mesmerising figure who can attract many thousands of followers. These attributes have permitted him to gain ready access to under-age victims. This is a potent factor in connection with his risk of sexual recidivism.
Mr Kamm has described himself as "a high profile person known throughout Australia and the world, for some 30 years." In a letter to the Prime Minister dated 10 July 2003, he wrote: "The Religious Order that I founded in 1986 has grown to 160 countries and has some 500,000 members."
Similarly, Mr Kamm told Dr Lennings on 3 September 2015 that he had half a million followers in his order worldwide. He said he is still in contact with these members around the word and receives donations from them. Mr Kamm recently also told Dr Ellis he has an ability to heal others, and that he believes he may have cured cancer and blindness.
Mr Kamm has also described women as having great respect for him as God's Prophet or instrument, and that women stand in awe of him as a powerful and influential man. He has also recently said that "women were always attracted to me like a magnet" and "since I was a teenager women of all ages were attracted to me - I have always been a charismatic person."
Mr Kamm recently told Mr Sheehan that, throughout his life, females of all ages have been attracted to him. Mr Sheehan reported that he "said that females have been attracted to him because of his good looks, leadership and charisma, as well as his expansive knowledge of religion and other matters" although he "denied being attracted to 'the youngsters', but felt that they were generally attracted to him (not necessarily sexually)."
In his sentencing remarks in 2005, Judge Williams also noted that: "He [Kamm] told the Probation Officer that all money received for the Order is directed to him for disbursement among the members and other Orders. He said that many millions of dollars had been directed towards the Order. The Probation Officer commented that with respect to the commercial side of the organisation there appeared to be one shareholder in the entity, namely Mr Kamm and he was the owner of all the land and chattels that the community lives on. … Charbel community has over 500,000 devotees who either reside in communities or are auxiliary members. He was the hub of the organisation and therefore holds considerable authority both within the community itself as well as within the organisation proper. The Parole Officer felt that as a result of Mr Kamm's standing within the community effective supervision by the Probation and Parole Service would be difficult if he were to remain on community grounds. Apart from anything else, people close to Mr Kamm from within the St Charbel community have indicated that they view the present Court process as further evidence of his persecution by authorities. A feature of supervision by the Probation and Parole Service either now or in the future would necessitate the direction that he relocate to more suitable premises ostensibly away from the St Charbel community. As to why that might be the case I do not particularly understand, although it may relate to the fact that Mr Kamm's standing within the community and perhaps the unwillingness of the community members to report anything adverse against Mr Kamm."
Through a corporate vehicle, Mr Kamm owns the property at Cambewarra. His followers still reside there.
Mr Kamm's religious order has many members who live in the general community rather than in a specifically designated religious community such as the one at Cambewarra. In an affidavit Mr Kamm swore in civil proceedings on 26 July 2009, he said: "I founded a Religious Order known as the Order of St Charbel in approximately 1986 which, although based at Nowra, is now an international organisation. The Order follows the teachings of the Roman Catholic Church. There are now communities in 167 counties and the number of members worldwide is approximately 500,000. There are four separate Communities in Australia and it is not necessary for members of the Order to actually live in the Community although many choose to do so."
Mr Kamm has indicated an intention to live in a rural setting on a farm at Young once free of restrictions. In a letter dated 18 October 2014 addressed to "My beloved children" he wrote: "Children, I will soon be free. I now need to put my life together again, but it will take time as I cannot live in the Community - so I am going to buy a farm and once I get married to Sandra we will live on the farm. All of you will be welcomed to live with us or stay with us from time to time - this choice will be yours. Of course, all of this will take time because in the meantime I have to live in the city as I am still under the control of the Parole Board who have placed conditions on my life until the end of 2015. During this time I will be able to meet you in town as often as you wish, and with the younger ones, your mother or other adults must come with you to meet me, only until my Parole is completed at the end of 2015."
Mr Kamm's former wife has voiced concern that, in stating his intention to purchase a farm in rural NSW, he may be intending to set up another community.
In connection with an interview undertaken with Mr Kamm on 1 August 2015, a departmental case note of the Community Corrections Officer (Allison Roberts) records that: "William stated that he has been told by Jesus that he is Abraham the second' and he will lead a new set of 12 tribes of God's chosen people on earth. It seemed that this will occur when the world is destroyed and Jesus returns to earth. … I asked William why had he broken the Commandment thou shall not commit adultery' and he claimed that as a Prophet of God he can put his marriage responsibilities aside if a woman from his congregation approaches him and [wants] him to satisfy her needs or she was a child. He quoted the writings from Pope Innocent III who reigned from 1198 to 1216. He also claims that his behaviour is justified if God has commanded him to have relationships with women out of marriage and he quotes Saint Thomas `it is always reasonable to obey God's commands because God's wisdom is beyond the judgements of men'. William claimed that these writings justify him having sexual relationships with other women while he is married. (William faxed me the sections from the writings he has found on the internet). It appeared to me that he does not discuss this with his wife and seek her blessing."

Level of compliance with reporting obligations: s 9(3)(g)

A risk management report dated 6 October 2015, authored by Ms Allison Roberts of the ESO Team, records police having indicated that Mr Kamm has complied with reporting obligations in connection with the Child Protection Register.

Report from Corrective Services NSW - s 9(3)(d1)

Ms Allison Roberts prepared a New South Wales Corrective Services "risk management report" dated 6 October 2015 pursuant to s 9(3)(d1) of the Act. That report outlines a continued management plan that has been formulated to assist in the supervision and case management of Mr Kamm, should he become subject to an ESO.

Sex offender treatment - s 9(3)(e)

Mr Kamm participated in the CUBIT program between 27 March 2013 and 23 January 2014. The CUBIT Treatment Report dated 12 March 2014, prepared by Marie Rubio, recorded that throughout his time in the program, Mr Kamm "displayed grandiose and entitled behaviours." He was reported as having completed work tasks promptly and as having built relations with other participants. However, his staunch religious beliefs and his denial and/or minimisation of his offending history limited aspects of his participation in the program. Ms Rubio said: "Mr Kamm adamantly believes that 'God can suspend natural law for a Prophet.' As Mr Kamm upholds his religious beliefs, considers himself a Prophet and adheres to the calling of God, it remains unclear as to whether he truly accepts that he committed any of the sexual offences. Mr Kamm denied committing the sexual offences, and as a result he did not appear to show any empathy and his responses did not indicate that he recognised the seriousness of his offences. For example, Mr Kamm stated that the victims were not forced or pressured into being with him. It seems that Mr Kamm rationalised his actions as fulfilling his role as a husband to the spiritual wives according to God's commands. … Towards the end of the treatment program, he recalled and acknowledged some of the decisions he made leading up to and involving the offences. There appeared to be a reduction to the minimisations and justifications he used when attempting to avoid responsibility for the offences. This may be due to a slight change in his religious beliefs such as, according to Mr Kamm, God no longer requires spiritual wives until the 'second coming'. This information was only provided by Mr Kamm towards the end of treatment. He wrote in his treatment journals that in 2006 he had asked God to change his plans. This all seems to be a result of Mr Kamm's incarceration and other negative influences upon his religious group and the members. Yet he acknowledged that societal law must be obeyed over his religious beliefs to live an offence free life. As such, Mr Kamm gained an improved level of understanding of the issues surrounding his sexual offending outside of his religious beliefs. However, there remains a concern as to whether Mr Kamm's pro-social intentions will be followed through, considering that his religious beliefs can be altered at any given time. … throughout Mr Kamm's time in the CUBIT program, he remained staunch to his religious beliefs. He never wavered from the belief that he possesses the power to receive messages from the Virgin Mary/God. He describes himself as a 'seer' and so, believes that he acts out God's commands. It would seem that Mr Kamm's behaviour (past and present) are all founded on his faith-based views that have created difficulties for him and remain a concerning factor."
Ms Rubio similarly was of the opinion that "there remains some minimisation and justification, as [Mr Kamm] continues to remain staunch to his religious beliefs."
Ms Rubio identified a number of dynamic risk factors including difficulties with sexual self-regulation. She also considered that Mr Kamm had continuing treatment needs. She recommended that upon his release from custody Mr Kamm should participate in the Community-Based Maintenance Program conducted by the Forensic Psychology Services (FPS) unit of Corrective Services NSW. Since his release from custody, Mr Kamm has been attending that program fortnightly.
In his recent psychological risk assessment report, Mr Sheehan describes Mr Kamm's participation in CUBIT as follows: "He made modest progress, but did not come to acknowledge the scope and dynamics of his offending in a way that could realistically be considered as satisfactory."

Psychiatric evaluation: s 9(3)(c) and (i) - November 2014 and July 2015

Dr Gerald Chew provided a report dated 3 November 2014 for the State Parole Authority. Dr Chew reported that Mr Kamm could communicate with the Virgin Mary. Mr Kamm said this was a one-way communication in the form of visions approximately once a month, usually when he was awake but sometimes when he was asleep in the form of a dream.
Dr Chew assessed Mr Kamm as presenting with a complex belief that is religious in nature. Dr Chew said he appeared to have a significant following in Australia and around the world. Dr Chew said, without this context, Mr Kamm's beliefs about visions and prophecies could be considered to be hallucinations and delusions, but that the psychiatric definition specifically excludes fixed beliefs where there is a significant cultural or religious acceptance.
Dr Chew opined that Mr Kamm did not meet the criteria for any major psychotic illness and was not suffering from schizophrenia or a delusional disorder. Dr Chew considered that Mr Kamm's grandiose thoughts and speech may be associated with a degree of narcissistic personality. He recommended that Mr Kamm continue to participate in sex offender treatment. He did not undertake any risk assessment.
Dr Andrew Ellis provided a report dated 30 July 2015 addressed to the Crown Solicitor's Office. Dr Ellis interviewed Mr Kamm on 24 July 2015. He told Dr Ellis that he disputed the charges of which he was convicted and that it was very "easy" to charge a person with sexual offences. He also described each of the victims of his sexual offences as "sexually overactive and promiscuous" and of having been sexually interested in him from the age of 12. He denied any sexual relationship with the victim of the 1993 offences. He said he entered into a sexual relationship with the victim of the 1994-1995 offences only after she was 19 years old.
Dr Ellis said Mr Kamm: "… displayed consistent grandiose attitudes about his appearance, athletic ability, association with figures of importance and romantic prowess. He painted his victims in a negative light, and endorsed beliefs that young females are promiscuous, sexually active and have an interest in older men."
With respect to his asserted beliefs, visions and prophecies, Dr Ellis said that Mr Kamm's "reported perceptual experiences are consistent with cultural phenomenon [sic] rather than the pervasive hallucinatory experiences of mental illness." Dr Ellis also said that there was "no definitive way at psychiatric interview to determine if [Mr Kamm] truly believes the content of his expressed notions, or if they conveniently assist choices in his life."
Having regard to his offending history and his currently expressed attitudes, Dr Ellis made the provisional diagnosis that Mr Kamm meets the criteria for a paraphilic disorder. Dr Ellis said: "Consideration is given to the presence of a paraphilic disorder, either paedophilic disorder or another specified paraphilic disorder (hebephilia). The behaviour recorded in the convictions indicates a sexual behaviour targeted at younger females. This may be consistent with paedophilic arousal if the females were prepubescent or in the early stages of pubertal change. This may also indicate a preferential arousal to youthful females known as hebephilia. From the behaviour recorded in the convictions preferential sexual expression was directed towards these younger females rather than his adult wife at the time. The number of letters written to the victims indicates a significant degree of fantasising about sexual activity with this age group. He currently holds attitudes that prepubescent and pubescent girls are sexually attracted to him, are promiscuous and sexually interested in older men. These cognitions are typical of persons with paedophilia or hebephilia. Thus, based on the documented tested evidence and his attitudes expressed at interview, there is significant clinical suspicion that a paraphilic disorder is present and related to the offending behaviour over a period of at least two years. This type of disorder should be monitored for and a provisional diagnosis would be made at this point. His self-report is at odds with this diagnosis but may indicate psychological denial or a lack of awareness of an attraction. If a disorder is present it would be classified as attracted to females and not exclusive in that he also expresses sexual attraction to adult women. Paraphilic disorders are chronic, relapsing conditions."
Dr Ellis also considered Mr Kamm met the diagnostic criteria for Narcissistic Personality Disorder: "He presents with a significant degree of relationship dysfunction in intimate partnerships over his adult life. Documents suggest conflict with established authority structures. This is accompanied by a grandiose sense of self-importance, a lack of empathy for others particularly his victims, a sense of entitlement and need to be regarded by figures of importance and a poor ability to self-reflect. He has fantasies of unlimited success such as one day potentially being declared pope. He gives a life narrative that suggests to himself he is unique from surviving supposed near death as an infant, to being a chosen person in a religious hierarchy. His use of financial control of the religious community suggests he is interpersonally exploitative. He would meet the criteria for Narcissistic Personality Disorder. This is consistent with his report of being abandoned by paternal figures in his youth. It is consistent with his previous self-report psychometric evaluation."

Risk assessment (other than by court-appointed experts) - s 9(3)(c) and (d)

Mr Graham Rendell, a psychologist with FPS, provided a pre-sentence report dated 14 September 2005. Mr Rendell's risk assessment was undertaken prior to Mr Kamm being convicted of the index sexual offences, and had regard only to 1993 sex offences.
Mr Rendell undertook psychometric assessment using the Millon Clinical Multiaxial Inventory-III (MCM-III), the Bumby Molest Scale (BMS) and Bumby Rape Scale (BRS). Mr Kamm presented with elevated scores in the Narcissistic Personality scale, suggesting that he perceived himself as special and likely to assume that many of the conventional rules of living with people did not apply to him. He also endorsed items that tend to minimise the importance of sexual abuse and an offender's responsibility for a sexual offence.
Mr Rendell considered Mr Kamm's risk of re-offending with respect to both static (actuarial) and dynamic risk factors. In terms of actuarial risk, Mr Rendell scored Mr Kamm using the Static-99 instrument. His score placed him within the low risk category relative to other male sex offenders. However, Mr Rendell noted limitations applicable to the Static-99 instrument as a tool for predicting individual behaviour, and stressed the importance of clinical evaluation and the dynamic (or changeable) risk factors.
Mr Rendell identified particular dynamic risk factors applying to Mr Kamm that serve to heighten his risk of sexual re-offending: "The following dynamic risk factors, associated with Mr Kamm's future risk, need to be considered: • His position as a 'seer' and a leader of a religious 'family'. This provides him almost unlimited access to any vulnerable person within the 'family' and, by invoking 'divine guidance' a licence to behave in what would elsewhere be seen as an inappropriate manner. • His psychosexual make-up, which includes sexual arousal to young girls. • His seemingly limited victim empathy, particularly his failure to understand the degree of distress the victim may have experienced and the degree of damage his actions may have caused. • His apparent confusion about sexually and socially appropriate boundaries for young people, and about what is appropriate to someone in a position of authority. • His lack of insight as to how he planned and enacted the offences. • His inadequate pro-social network of responsible non-collusive peers to support, monitor and supervise appropriate attitudes and behaviour. … Clinical decisions about risk, whilst taking an actuarial risk rate as a baseline, have to be made on the basis of dynamic risk factors specific to the offender, and in specific consideration of risk of what, to whom and under what circumstances. Whilst Mr Kamm's Static scoring may reflect the level of risk he represents to the mainstream community, consideration of dynamic risk factors and the circumstances of his offences suggest that he represents a significant risk of sexual assault to vulnerable women and young girls in his religious family, as long as he continues to be seen as a member of that family."
Mr Rendell said that Mr Kamm "has shown substantial lack of insight about the nature of his offence, and about the effect of his sexualisation of the victim." Mr Rendell identified him as having extensive treatment needs and recommended that he undertake the CUBIT sex offender treatment program.
When sentencing Mr Kamm for the 1993 sexual offences, Judge Williams said: "I am concerned that in light of the reports available, there is a significant risk of re-offending. I am also concerned that Mr Kamm appears to have little or no insight into the wrongs of his behaviour."
Ms Rubio scored Mr Kamm as "-2" on the Static-99R actuarial instrument, thus placing him in the low risk category relative to other male sexual offenders by reference to actuarial considerations. However, Ms Rubio also noted the limitations applicable to the Static-99R. Dynamic risk factors included sexual self-regulation, general self-regulation, significant social influences, co-operation with supervision and intimacy deficits.
In respect of sexual self-regulation, Ms Rubio said: "This is an important risk factor for Mr Kamm, characterised by sexual interest in and arousal to adolescent females, use of sex to cope and a sense of sexual entitlement Mr Kamm seemed to associate sexual behaviour with feeling loved and a perceived sense of power. He described the immediate lead up to the offences as an act of commitment of friendship and love between two people under freedom of choice and consent. He acknowledged that his actions (offences) were an attempt to meet his needs by taking advantage of adolescent females for his own sexual pleasure and personal recognition. He reported being in a relationship with seven 'spiritual' wives at the one time and having to fulfil his role as a 'husband'. Therefore, he created time alone (at motels) and wrote letters with sexualised comments. Sex also served as a way to cope with the stresses that ensued amongst them (jealousy). Overall, It would seem that sexualised behaviour appeared to reinforce his sense of grandiosity and fulfil self-worth."
While noting that Mr Kamm had made some progress in treatment in connection with this risk factor, Ms Rubio sounded a note of significant caution and emphasised his continuing treatment needs as follows: "… it remains unclear whether Mr Kamm fully concedes that he created the opportunity for sexual interaction with adolescent female victims through the power and authority he held in the religious group. He created a plan to allegedly relinquish leadership of the religious group and abandon 'all control'. Whilst this may reduce the previous unlimited access to vulnerable adolescent females who were led by him to believe they were fulfilling a godly command, continuing to be viewed by self and others as a 'seer' may not. Mr Kamm requires regular attention to challenge his unhelpful attitudes and beliefs about sex and adolescent females and openly discuss any sexual arousal in the Community-Based Maintenance group."
In respect of general self-regulation, Ms Rubio said: "This is another important factor for Mr Kamm. In the past, despite his stable work history and no criminal history, he engaged in controlling behaviours and attitudes. He failed to recognise the harmful and legal consequences of his sexual activity with adolescent females. He inhibited emotional expression to portray a judicious person, disregarded the needs and feelings of others as he abused the power and authority he held as a religious leader. Mr Kamm demonstrated some lack of insight into these patterns of thinking and behaviour. This is mainly due to his profound faith-based views that seemingly served to fulfil his own needs at the expense of others."
Ms Rubio noted work undertaken by Mr Kamm on this risk factor in CUBIT, but stated: "In spite of these newly created strategies and proposed relinquished leadership role, Mr Kamm continues to view himself as a religious 'seer'. This still may be seen by others as a position of power. Within the religious domain, Mr Kamm may continue to believe he is special and sustain grandiose behaviours and attitudes that may lead to unhelpful consequences."
In respect of significant social influences, Ms Rubio said: "Mr Kamm's current social and support networks are those that follow and affirm his religious beliefs. It is evident that they were not adequate as a pro-social responsible group to discourage or confront Mr Kamm's interpretation of his spiritual mission and commands that lead to inappropriate behaviours. The people that supported and continue to support Mr Kamm have collaborated with him in minimising and denying the offences under the pretext of religious beliefs. This triggers uncertainty as to the integrity and effectiveness of this network of people acting as a protective factor to assist Mr Kamm in leading a pro-social and offence-free life."
While noting Mr Kamm's asserted intention to renounce his leadership role in his religious order and to broaden his support network, Ms Rubio said an issue of concern was that: "Mr Kamm continues to consider himself as a 'seer' that still embraces the notion of power and authority over others within the religious group. It would appear that this risk factor will always remain important as long as Mr Kamm has followers within a religious group or those that may follow his religious beliefs."
While on parole, Mr Kamm has continued to have contact with people from his religious order, who he identifies as supporters, including Mr Broussard and Mrs Williams. In addition, his wife formerly resided at his religious compound for many years.
With respect to co-operation with supervision, Ms Rubio noted difficulties experienced with Mr Kamm in CUBIT and in custody (institutional charges), including minimisation and attempts to manipulate particular events, but noted some apparent improvement in this context during the CUBIT program.
With respect to intimacy deficits, Ms Rubio noted, in effect, that Mr Kamm portrayed an ability to develop and maintain intimate relationships throughout his life, but that some of these relationships, such as where a woman became his "spiritual wife" together with other women, were problematic. Ms Rubio said: "It may be that all these relationships were possibly strained by Mr Kamm's deep-rooted sense of entitlement and self-importance. The contact Mr Kamm had with the adolescent females was perceived by him as an act of God. He accepted that the victims admired and praised him and his work as a religious leader, obeying his directions. It is essential that he fully acknowledge and assent that it was an uplifting boost to his self-image in order to effectively challenge distorted beliefs around this issue."
Ms Rubio considered that, having regard to applicable dynamic risk factors, Mr Kamm's Static-99R risk rating under-represented his risk of sexual recidivism.
Dr Lennings provided a psychological risk assessment report dated 7 September 2015. For the purpose of his report, he interviewed Mr Kamm on 3 September 2015.
Dr Lennings noted that Mr Kamm represents an idiosyncratic case in which "his charisma and control as a religious figure" are not easily addressed by conventional actuarial risk assessment. Dr Lennings said that having regard to his unique circumstances, including his status as a mystic with supernatural abilities, dynamic risk assessment provided the most useful measure of risk.
Dr Lennings utilised the Risk for Sexual Violence Protocol (RSVP) to assist with dynamic risk assessment. Using the RSVP, he identified multiple risk factors "definitely present", including chronicity of sexual violence, escalation, psychological coercion in sexual violence, sexual deviance, problems with planning, problems with treatment and psychopathic personality (as demonstrated through Machiavellianism and Dissocial Personality Disorder).
Dr Lennings further identified, as risk factors "somewhat present", attitudes that support or condone sexual violence, problems with self-awareness, problems with supervision, problems with intimate relationships, problems with non-intimate relationships and problems with employment. He said: "On the basis of the dynamic risk assessment Mr Kamm's risk rating is high, and if he is able to avoid supervision of his behaviour his manipulative and deceitful manner as well as intense egocentricism and narcissism will likely lead to further attempts at offending. … Mr Kamm is an elderly man who reports a long history of mystical experiences. These experiences have established himself in the role of a prophet and he has leveraged that position to obtain both financial and sexual advantage from others. His sexual behaviour has appeared at times as hypersexual, and focuses on teenage women and he likely has a significant sexual deviance associated with his sexual interests. He describes an ongoing active sex life and his continuation as a 'seer' means he continues to promote the mechanism whereby he took advantage of young people previously. Although he has distanced himself from his theory of Queens and Princesses his explanations sound facile (he asked God to exempt him) or later, in interview implied that such a philosophy only pertained to the Second Coming and in any case referred to immaculate conceptions. Mr Kamm presents as scoring high on dimensions assessing deceitful and manipulative behaviour. I do not believe he is frank in his dealings with others, and easily asserts himself over others. His writings indicate that he has a special relationship with God that exempts him from both temporal and canonical law. … Given the history of sexual deviance and hypersexual behaviour it is likely he represents an ongoing risk of deviant behaviour if opportunity were to allow for that to occur. To manage his risk such opportunity needs to be managed."
Dr Lennings assessed Mr Kamm as meeting the diagnostic criteria for Machiavellianism and Dissocial Personality Disorder. In respect of the latter diagnosis, Dr Lennings noted that Mr Kamm has been recorded as evidencing callousness and a lack of concern for others, as having a persistent disregard for social norms, an incapacity to experience guilt and a marked proneness to blame others. His behaviour was said to be outside cultural expectations, to be enduring and to create an adverse impact on his environment. Dr Lennings considered that Mr Kamm might also meet the diagnostic criteria for Narcissistic Personality Disorder.
In respect of risk of sexual re-offending, Dr Lennings concluded: "In considering the risk assessment it appears there is a high likelihood of further serious sexual offending should Mr Kamm be released into the community without supervision. [Dr Lennings cross-referred to applicable risk factors and continued.] The majority of these risk factors are quite stable, that is despite his age, which ordinarily might be expected to reduce the intensity of his risk, in Mr Kamm's case I believe his risk factors remain enduring and unlikely to fluctuate much for the foreseeable future. Medical or health issues may intervene to reduce sexual desire, or sexual performance over time, but for the moment that is not foreseeable. His deviance, manipulativeness and underlying lack of empathy and concern for others is a stable function of his personality and the wellspring from which his risk derives."
Dr Lennings referred to the manner by which Mr Kamm's reported history as a "seer" and "prophet", in light of his criminal history, impacted upon his risk of sexual recidivism: "Mr Kamm has worked out how to influence others and close their minds to critical thinking by appealing to people on the basis of deep religious conviction. He combines his revelations with interpersonal control to obtain both financial and sexual gratification. He brooks no criticism of his behaviour and had developed a coterie of like-minded people who also seemingly took advantage of the influence Mr Kamm could wield to enforce standards of behaviour that are at odds with accepted community standards. His belief system is instrumental to the modus operandi by which he committed his offences. That he continues much of the trappings of this belief system (having put his theory of Queens and Princesses into abeyance for the moment) indicates he continues to manifest the precursors for an offence should he not be under scrutiny and accountability for his behaviour."
Dr Ellis assessed Mr Kamm's risk of sexual recidivism utilising clinical judgement guided by the RSVP instrument. He assessed him as meeting the diagnostic criteria for a Paraphilic Disorder (provisional diagnosis) and Narcissistic Personality Disorder. Dr Ellis identified deviant sexual arousal and personality disorder as key features in connection with Mr Kamm's risk of sexual recidivism. Dr Ellis said: "Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr Kamm's offence history indicates this pattern of arousal with preference for sexual activity with female minors. Offending continued in a chronic pattern. Psychological coercion or 'grooming' was employed in order to gain access to the young victims. Some of this included an exhortation to the peculiar religious beliefs of the victims, and other techniques were more prosaic appealing to a sense the victim was special, isolating them or taking them to restaurants. Psychological coercion of the religious community and families was also employed, reinforcing the compliance of victims. He displays a specific stereotype of victim. Antilibidinal medication is the best treatment to address deviant arousal. Behavioural techniques may reduce deviant arousal. … Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is not diagnosed with antisocial personality disorder, but another related personality disorder. Malignant narcissism is related to the interpersonal aspects of psychopathic personality traits such as glibness, superficial charm, grandiosity and lack of remorse. These traits have a moderate association with repeat sexual offending. Disordered personality function can interfere with honesty in treatment, cooperation with restrictions, passive-aggressive sabotaging of treatment progress, and be a risk for development of at risk mental states such as anxiety and depression. Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. He describes long term relationship dysfunction, including during periods of offending. His institutional adjustment while superficially positive covers over underlying contempt for the justice system. There is some evidence in his institutional charges of acts to subvert aspects of his supervision. His prior engagement with treatment has been poor. While he does not make statements that endorse antisocial behaviour directly, he is yet to demonstrate sustained maturation of his interactional style. There is therefore need to continually address personality function as part of any ongoing treatment process. Denial is relevant in this case as it potentially leads to obfuscating during offence specific rehabilitation."
Dr Ellis noted that Mr Kamm had undertaken the CUBIT sex offender treatment program but noted that his "performance in this program was rated as displaying minimisation and justification for his actions based on religious beliefs and only a slight shift in personal responsibility." In connection with his assessment Dr Ellis said: "At this review he displayed a reversion to denial of offending, no understanding of risk factors for offending and a view that further work was unnecessary due to his professed innocence."
Dr Ellis assessed Mr Kamm with a high risk of sexual recidivism in the context of a potential return to a closed community, which could give him ready access to and influence over potential victims. Dr Ellis said: "All risk of sexual violence is heavily dependent on context. The previous sexual offending occurred in a very specific context. His position as property owner and spiritual leader of the 'Order of St Charbel' gave him private access to and influence over young females living on the property and their families. This influence was both spiritual and material. The population he moved in describe themselves as faithful and socially inexperienced. Should he return to a similar context the risk of repeat behaviour would be considerable. Given his financial and social status in the group, plus a desire he would wish to provide assistance to the group into the future indicates without supervision this context could readily recur. A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr Kamm, given the particular pattern of sexual arousal, the likely type of victim would be a female child in a situation where they were alone or in a position of vulnerability. The associated intimidation, shame and loss of a sense of bodily integrity would be of the type where serious psychological injury is foreseeable. Damage to their understanding of faith and community would be likely if he were to employ previous psychological coercion tactics. In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr Kamm would fall into a group of persons with a risk for serious sexual offending that is of high concern in the context of return to, or access to a remote and closed community and of a type with serious consequence. Specific treatment and supervision would likely reduce this risk. "
Dr Ellis regarded anti-libidinal medication as indicated to address Mr Kamm's deviant sexual arousal. However, he noted that he has indicated that he would not take such medication. Dr Ellis regarded Mr Kamm as requiring long-term supervision and treatment and said that his "psychiatric disorders are chronic and likely to persist beyond any period of supervision."

Reports of court-appointed experts - s 9(3)(b)

Dr Jeremy O'Dea has provided a report dated 3 December 2015. For the purpose of his report, he examined Mr Kamm on 9 and 12 November 2015.
Dr O'Dea reported that Mr Kamm told him he continued to experience "visions" approximately once or twice a month. These visions were of fully formed individuals "floating above me". Mr Kamm also told Dr O'Dea that, in 1983 or 1984, the visions wanted him to stop employment and to set up his religious community, and that God gave him instructions to buy the property. He also said that "Our Lord" would appear to him down at the property where a spring would come out of the ground and that it did. Like Lourdes, the water helped heal people from cancer and blindness.
Dr O'Dea reported that Mr Kamm denied having committed both sets of sex offences. However, he said that he had been the victim of sexual abuse by a priest as a child.
Dr O'Dea diagnosed Mr Kamm as meeting the criteria for a personality disorder with narcissistic, antisocial and psychopathic traits. Dr O'Dea expressed the view that Mr Kamm would not satisfy the psychiatric criteria for a paraphilic disorder having regard to various matters including the number of adult heterosexual relationships through his life. Dr O'Dea did, however, state that Mr Kamm's offending conduct could be conceptualised as "heterosexual hebephilia" and could properly be the focus of treatment and management: "… his apparent specific and strong sexual urges and fantasies towards post pubescent female children, associated with evident grooming behaviours such as the writing of the letters to the victim of the first set of sex offences, and his index sex offending behaviours, may be conceptualised within the category of heterosexual hebephilia. Whilst, given his history, this would not be considered Mr Kamm's exclusive, or even predominant sexual preference, nor would it be considered a psychiatric disorder, in and of itself, it may be the focus of treatment and management due to the potential effects of such behaviour on the victims."
Dr O'Dea was not able to exclude a related psychiatric diagnosis in connection with the visitations or apparitions Mr Kamm claimed to experience. He said Mr Kamm's responses to such visitations demonstrated poor insight, judgment and emotional control. Even if it is considered that religious "visitations" or apparitions may not constitute psychopathological experiences indicative of psychiatric illness, that did not mean that someone experiencing visual and auditory hallucinations of a religious context was not also suffering from a psychiatric illness: "Indeed, in Mr Kamm's case, the fact that these 'visitations' are far removed from the general mainstream thinking and experience, are interpreted in a highly religiose and intensely personal manner, and are acted upon in a demonstrative and dramatic manner, that demonstrate at least intense narcissism and grandiosity, poor insight, poor judgement and poor behavioural control, and occur in the context of wider interpersonal and social issues for Mr Kamm, and have caused significant suffering to others, would raise concerns that they are visual and auditory hallucinations of a delusional quality. It may be tempting to dismiss Mr Kamm's reported 'visitations' as part of his wider shared religious beliefs and experiences, and/or as a self-serving expression of his grandiosity, narcissism and religiosity, and justification for his sexual deviance, rather than indicative of a major psychiatric illness. However, I have not had access to significant information detailing other people's direct and credible support for Mr Kamm's account of the exact nature and content of his 'visitations' and specific religious calling, and his conduct, other than reference to the involvement of the family of the victims of sex offences, and he appears to continue to hold the core religious beliefs that progressed to the 'visitations' related to his sex offending behaviours. In addition, even if it is to be accepted that the 'visitations' and their callings are not indicative of major psychiatric illness, his response to them, including of grooming and engaging in sexual relations with post pubescent female children, demonstrates poor insight, judgement and emotional control, within the standards of the current secular society."
Dr O'Dea noted that on a Static-99R actuarial assessment Mr Kamm presented as low risk of sexual recidivism but that, having regard to other (dynamic) considerations, his actual risk was greater: "… in Mr Kamm's case, his ongoing 'visitations', and his apparent ongoing involvement with his religious beliefs and endeavours, and his level of grandiosity and narcissism, and his poor insight, judgement and behavioural controls, would together point to him having a greater risk of engaging in further sex offending behaviours in the community in the long term, and of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, particularly if he were to return to his religious practice and followers, with this risk the appropriate focus of specific and structured risk management in the community in the long term."
Dr O'Dea further said: "… from a full clinical psychiatric risk management perspective, and with reference to various actuarial and more so called dynamic risk assessment instruments, Mr Kamm's risk of engaging in further sex offending behaviours in the community in the long term would be considered significant and appropriate for specific community management as outlined above."
Dr O'Dea also reported that Mr Kamm's history as a "seer", "prophet" and "visionary", capable of leading and persuading others to his forms of belief, appears to have facilitated his sex offending, and is likely to be a factor in his ongoing risk of recidivism, particularly if he were to return to his prior religious activities. Dr O'Dea referred to Mr Kamm's denial that he committed the offences. Dr O'Dea said: "Whilst denial by a person of their sex offending history does not, in and of itself, predict future sex offending, in Mr Kamm's case, his denial of his sex offending behaviours may be understood in the context of his broader psychiatric issues, including his problems with insight and judgment, and point to greater risk of recidivism. More specifically, it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Kamm would be likely to commit a further 'serious sex offence' (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) in the community in the long term, if these above outlined treatment interventions above were not successfully implemented in the context of community supervision and monitoring. Whilst it is not possible, or clinically appropriate, from a psychiatric perspective, to place a percentage likelihood of Mr Kamm committing a further 'serious sex offence', the significance of this risk from a clinical perspective may be considered commensurate to the likelihood as I understand is referred to in legal terms in Tillman v Attorney General for New South Wales [2007] NSWCA 327."
Mr Patrick Sheehan provided a report dated 15 November 2015. For the purpose of his report, he examined Mr Kamm on 3 November 2015. Mr Sheehan reported that during interview Mr Kamm showed social skills and was persuasive in his manner. Mr Sheehan said: "He did exhibit grandiosity in his repeated reference to himself as a charismatic and important person, a public figure connected with 'famous' and influential people, and comparing himself with influential historical figures. … His discourse in interview did appear dominated by efforts at impression management and he did not impress as candid or open. He reliably presented information in a self-serving way. He appeared cognitively intact, demonstrating linear thought (the ability to think in an organised way), and ability to concentrate throughout a lengthy assessment. However, in terms of his understanding of himself, his insight was poor and he presented himself in a one dimensional way. He was unable to be drawn into discussion of his personality or faults. He seemed rigid in his beliefs and perceptions of himself and others."
Mr Sheehan recorded Mr Kamm as reporting he had a role to play as the leader of God's people in the second coming of Christ. He regarded Mr Kamm as meeting the diagnostic criteria for Narcissistic Personality Disorder. Mr Sheehan said: "Narcissistic Personality Disorder (NPD) is defined as a pervasive and enduring pattern of grandiosity (in fantasy or behaviour), need for admiration and lack of empathy, as indicated by: grandiose sense of self-importance, preoccupation with fantasies of unlimited power, success, power, brilliance, beauty or ideal love, beliefs of being special and unique, associated with high-status people, requiring excessive admiration, sense of entitlement, interpersonal exploitation, and haughtiness. In my opinion, this is Mr Kamm's primary diagnosis in terms of shaping the development of the behaviours associating with his offending. In my view, there is a clear nexus between his NPD and his faith-based beliefs and activities. That is, his self-promotion as a prophet and his establishment of a religious order have provided a perfect opportunity for him to nurture grandiose feelings of self-importance and unique association with powerful entities (such as God), as well as foster a network of people to admire him. … Mr Kamm's Narcissistic Personality Disorder is chronic and in my view relatively severe. It is unlikely that there will be any appreciable remission in this disorder as long as Mr Kamm remains enmeshed in his fantasies of power as a mystical prophet."
Mr Sheehan did not assess Mr Kamm as meeting the criteria for antisocial personality disorder or a paedophilic disorder. He did, however, state that he may meet the criteria for Other Specified Paraphilic Disorder (Hebephilia), involving a sexual interest in pubescent or early adolescent females.
In assessing Mr Kamm's risk of sexual re-offending, Mr Sheehan had regard to actuarial assessment and also applicable dynamic risk factors including his problems in benefiting from treatment, superficial co-operation with supervision, and association with members of his order. Mr Sheehan said: "Mr Kamm is assessed as within the low risk category with regard to actuarial factors. However, he continues to exhibit a number of important dynamic risk factors that are both recognised as relevant factors in literature as well as the known correlates of offending in Mr Kamm's particular case. Although he has completed an intensive treatment program and cooperated with community supervision, I do not believe that he has done enough to infer any confidence in his ability to independently manage his own risk in the absence of externally imposed supervision. The overall totality of evidence leads me to estimate that Mr Kamm's risk of committing a serious sex offence to be in the moderate to high risk category relative to other adult male sexual offenders. His risk is towards adolescent females whom he comes into contact with through his faith-based activities. Should any evidence of sexual preoccupation emerge, I would re-evaluate his risk estimate to the high-risk category. … In my opinion the totality of available information suggests that Mr Kamm will remain predisposed to creating environments comparable to that in which he sexually offended. That is, by meeting his need for ego gratification through surrounding himself wherever possible by people who believe him to be a powerful and mystical figure. Without the influence and containment of supervision, there may be few impediments to such a situation escalating to a sexual offence should he meet adolescent females to whom he is sexually attracted."
Mr Sheehan summarised his view regarding the risk presented by Mr Kamm as follows: "Mr Kamm's performance in the community has been largely without incident. He does not outwardly reject supervision. He has participated in the Community Maintenance Program, received intense supervision, monitoring and case management by CSNSW. However, he continues to deny his offences and has made only partial and temporary adjustments to his beliefs and future plans regarding his self-appointed role as a religious prophet. In my opinion, in the absence of supervision he is highly likely to place himself in high-risk situations, mostly by surrounding himself with people who believe him to be a supernatural prophet, whose behaviour and perceptions he can control through his account of his 'visions'. There is also a high likelihood for him to continue to choose his sexual partners from this group of people. His ideological construct remains that it is open for him to return to sexual interactions with a range of females of varying ages if he feels so instructed by God. This removes any sense that he is personally responsible for moral consideration of his actions. Taken together, this leaves little protection against Mr Kamm sexually reoffending. I would estimate that in the absence of supervision, Mr Kamm would present a moderate to high risk of committing a further serious sexual offence. The risk is chronic and may persevere until such time that his advancing age moderates his personality disorder and sexual motivation. In my view, the proposed supervision plan is adequate to manage Mr Kamm's risk in the community."

The State's submissions

The State submitted that, having regard to the supporting material and expert evidence, Mr Kamm is properly to be regarded as presenting a continuing and appreciable risk of sexually re-offending against under-age females. This risk arises particularly in connection with his dangerously unorthodox religious beliefs, his narcissistic traits, the persistence of beliefs which enable him to rationalise his conduct, and his demonstrated ability to obtain access to, and exercise influence over, potential victims.
Further, this appreciable risk remains even if Mr Kamm does not re-establish his participation in a closed community compound such as Cambewarra. Mr Kamm continues to maintain and to espouse his unorthodox religious beliefs. By his own account, many of the members of his religious order live in the general community rather than in a closed compound. There are also real concerns that, if an ESO is not made, following the expiration of his parole order Mr Kamm will further re-integrate with members of his order and position himself in a rural area, away from scrutiny and in a manner that will provide ready access to under-age followers. Having regard to his history and current presentation, along with his propensity to minimise or deny his offending behaviour and his lack of insight into its seriousness, there is a clear justification for intensive monitoring and supervision of the type provided by an ESO, coupled with a continued focus on directing Mr Kamm to address outstanding treatment needs.
The State contended that the following matters are relevant not only to the discretion to grant an ESO, but also to whether I would ultimately be satisfied that Mr Kamm is a "high risk sex offender" for the purposes of s 5B(2): 1. Mr Kamm has a history of sexual offending against under-age females in a manner that was chronic and caused significant harm to his victims. 2. Mr Kamm has been assessed as presenting a potential for further serious sexual offending, should he be released into the community without supervision, which is variously described by experts on the basis of clinical assessment and with regard to dynamic risk factors as a "high" likelihood, a "significant" risk, or as being within the "moderate to high" risk category. 3. Dr Ellis has identified Mr Kamm as having a paraphilic disorder (provisional) centred upon deviant sexual arousal. This disorder is described as being a chronic, relapsing condition that is resistant to treatment and rehabilitative efforts. 4. Mr Kamm has a co-morbid Narcissistic Personality Disorder that impacts upon his treatment and response to supervision. He is further assessed as meeting the diagnostic criteria for Machiavellianism and Dissocial Personality Disorder, meaning that he is manipulative and deceptive. 5. Mr Kamm has expressed an unwillingness to take anti-libidinal medication to address his deviant sexual arousal. 6. Mr Kamm has a demonstrated and longstanding propensity to present as a charismatic and mesmerising figure who can attract many thousands of followers. This has provided him with ready access to, and influence over, followers, including under-age victims. 7. Mr Kamm continues to present himself as the "Little Pebble" and to preach his unorthodox religious views via the Littlepebble.org website. He continues to have contact with members of his religious order. 8. Mr Kamm's religious order still exists and people associated with it continue to reside in the property at Cambewarra. Mr Kamm's company owns the property. 9. Mr Kamm continues to deny having committed the sexual offences for which he has been convicted and demonstrates little or no insight into his offending behaviour or his risk of sexual recidivism. He is without empathy for the effect of his conduct upon his victims. Mr Kamm has described each of the victims of his sexual offences as being "sexually overactive and promiscuous" and of having been sexually interested in him from the age of 12. 10. Treatment of Mr Kamm thus far is at an early stage and has had only minimal positive impact. As Mr Sheehan has put it, "Mr Kamm has only a superficial level of engagement in the treatment process". 11. Mr Kamm does not appear to interact with non-collusive peers who can adequately challenge problematic behaviour on his part, given that his wife and other identified supporters are associated with his religious order and have been his followers. 12. Mr Kamm has significant treatment needs that have not been fully addressed, as well as a need for long-term supervision. These treatment needs can be met, at least in part, by participation in the Community-based Maintenance Program that FPS conducts. 13. Mr Kamm has not had any lengthy period of supervision in the community of the type contemplated by the sentencing judge. 14. In the absence of supervision and support of the type that could be provided by an ESO, Mr Kamm is likely to return to the high risk behaviours associated with his sexual offending.

Mr Kamm's submissions

It should be noted that Mr Lange of counsel on behalf of Mr Kamm made the following uncontroversial but very proper concessions for the purposes of various matters with which the Crimes (High Risk Offenders) Act is directly concerned: 1. Mr Kamm is a "supervised sex offender" within the meaning of s 5I. 2. At the time the summons was filed Mr Kamm was a "supervised sex offender". 3. The offence for which Mr Kamm was detained was a "serious sex offence" within the meaning of s 5(1). 4. The present application was brought within the last 6 months of Mr Kamm's custody or supervision as required by s 6(2).
The burden of Mr Kamm's submissions was that the prospect that he might re-offend was contextual, meaning that the offences occurred in situations where he had access to vulnerable members of his spiritual community. As there was no appreciable likelihood that he would return to the Cambewarra community or anything similar, the risk of sexual offences with under-age females was remote. In such circumstances, having regard to the absence of any prospect that Mr Kamm would re-offend with strangers, he could not be considered to be a high risk sex offender.
Mr Kamm submitted that in order to be satisfied of the test under s 5B, I had to be satisfied to a high degree of probability that he would return to the community, and assume a mentoring role, or otherwise start a fresh community, which would give him access to potential victims. There is no such evidence, and certainly none that would support an inference to the requisite standard. Even accepting Dr Ellis' opinion that Mr Kamm's "financial and social status in the group, plus [a] desire he would wish to provide assistance to the group into the future indicates without supervision this context could readily occur", Mr Kamm contended that such a conclusion did not rise to a sufficient level of satisfaction. While there is always the possibility that Mr Kamm may re-engage with the order and its members in a more active way if not supervised, the evidence about that is unsatisfactory. In this regard, it should also be noted that none of the material on Mr Kamm's website demonstrates or suggests that social media have been used to gain access to potential victims.
Mr Kamm emphasised what was said in State of New South Wales v Donovan [2015] NSWCA 280 at [80]: "The Act is to be construed in accordance with its text and so as to promote its purpose or objects. That said, the State, properly, conceded that s 3(1) cannot mean literally what it says, for there will always be some level of risk to the safety and protection of the community."
Accordingly, Mr Kamm submitted for this reason alone that the order should not be made.
Furthermore, Mr Kamm submitted that a number of factors would lead me to conclude that he does not pose an unacceptable risk of committing further relevant offences. In this regard, the expert evidence does not speak entirely with one voice. While Dr Lennings places Mr Kamm in the high risk category, Dr Ellis says he falls "into a group of persons with a risk of sexual offending that is of high concern." Dr O'Dea desists from making a likelihood prediction and Mr Sheehan says that Mr Kamm poses a moderate to high risk. In those circumstances, I could not conclude that Mr Kamm poses an unacceptable risk.
In considering the opinion of Dr Lennings, it should be remembered that it appeared to be based upon the assumed dichotomy that Mr Kamm would always pursue his criminal behaviour unless otherwise impeded by external factors, such as incarceration, supervision, or external scrutiny. However, for the period after the last offence in 1995 until 2002 there is no evidence that Mr Kamm engaged in deviant behaviour, or that he was in some way prevented from doing so had he wished. As Dr Lennings conceded, if there was a cessation of such conduct, that could affect the assessment of the risk posed by Mr Kamm.
Mr Kamm is now 65. As confirmed by Mr Sheehan during cross-examination, and stated by Dr Ellis in his report, "offenders over the age of 60 show very low rates of re-offending as a group." Mr Kamm's age stands in contrast to his age at the time of the commission of the offences, when he was in his mid-40s.
Mr Kamm submitted that the forensic evidence is insufficient to permit me to conclude that he poses an unacceptable risk of the commission of further relevant offences.
Furthermore, Mr Kamm submitted that I should also take into account the very burdensome nature of the conditions, which are sought by the State to be imposed, either as part of the balancing exercise when considering the risk posed or alternatively in deciding whether to make the order at all. Because the type of offending in which it is said Mr Kamm might engage is very specific, other less drastic means are available to monitor him should a concern about his conduct arise. For example, there is no reason to suppose that an order pursuant to s 8 of the Child Protection (Offenders Prohibition Orders) Act 2004 could not be made.

Consideration

Section 5B of the Act is as follows: "5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a 'high risk sex offender' if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
In my opinion, Mr Kamm poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I am satisfied that he does so to a high degree of probability. My reasons for coming to that conclusion are as follows.
Mr Kamm has a criminal history of highly manipulative, opportunistic and cynical predation upon under-age females for his sexual gratification by grooming and deception. In that respect Mr Kamm used the persuasive influence upon vulnerable individuals of fabricated communications with religious identities or alleged spiritual beings. Although a considerable therapeutic or clinical benevolence is evident in the psychiatric analysis of whether Mr Kamm's visitations or communications are pathological delusions or self-serving lies, it is ultimately irrelevant for present purposes whether Mr Kamm's predispositions and propensities are the function of an identifiable mental illness or not. I much prefer the approach taken by each of the sentencing judges who were astute in identifying Mr Kamm's behaviour as pretence.
I have set out at some considerable length the opinions and conclusions of a large number of medical specialists who have examined Mr Kamm over many years. I was considerably aided in that task by the written submissions of counsel whose summaries of the medical findings are uncontroversial. Indeed, as Mr Lange of counsel specifically conceded, Mr Kamm "does not take issue with the diagnosis of his personality", with which to a considerable extent that medical material is concerned.
It seems to me to be evident to the point of comfortable satisfaction that Mr Kamm has no insight into his offending, has demonstrated no remorse for his actions and possesses no understanding of the effect of his actions upon his victims. Mr Kamm remains convinced that he is a special person with an impressive and predetermined destiny. He continues even now publicly to reaffirm these arguably delusional self-perceptions. A reference to the Little Pebble website, with material from which I have been provided, conspicuously supports this. The difficulty for present purposes is that these perceptions, which were at the heart of Mr Kamm's original offending, show no significant or appreciable sign of attenuation.
Mr Kamm continues to maintain his innocence. That is so notwithstanding two unsuccessful appeals against his convictions to the Court of Criminal Appeal. One unavoidable conclusion from the fact that Mr Kamm continues to view himself as blameless is that I cannot be confident that he would now consider the repetition of his offending conduct as either criminal or even morally wrong. Whatever disincentive to repeat offending may exist in the prospect of detection or further incarceration, Mr Kamm does not also appear to have any appreciation of the total unacceptability of his behaviour. That is apparent from his revelations to some of the various experts who have examined him. In short, in circumstances where the opportunity to do so arises, Mr Kamm has been assessed as having no self-regulatory abilities to resist reoffending.
Mr Kamm's contentions are predicated upon the notion that the opportunity for further offending will not arise. However, Mr Kamm has not disavowed his delusional view of himself as a seer or a prophet or howsoever his imagined special circumstances might be characterised. It is Mr Kamm's extraordinary view of himself that has previously afforded him the assumed authority to commit criminal acts with under-age women. It is in my view only a short step from repeating such conduct as long as Mr Kamm perceives or professes himself to have divine sanction for his conduct. Restoration of Mr Kamm as the residential leader of a religious commune does not seem to me to be the single precondition to the commission of further serious sex offences. In my opinion it is essential to keep Mr Kamm under strict and close supervision even in the wider community.
Although none of the medical professionals referred to has used the term, Mr Kamm's particular sexual predispositions appear to be almost intractable. It will be recalled that Dr Ellis considered that Mr Kamm's psychiatric disorders were chronic and likely to persist beyond any period of supervision. To the extent that his condition may be amenable to therapy, no tangible advances have so far been demonstrated. Mr Kamm therefore remains likely to commit further serious sex offences against female minors. He poses an unacceptable risk of doing so unless he is kept under supervision.

Duration

The State contended that the general approach taken by Johnson J in State of New South Wales v Tillman [2008] NSWSC 1293 at [62]-[66] is informative: "[62] In fixing the term of an extended supervision order, the Court is guided by the objects in s 3 of the Act to ensure the safety and protection of the community and to encourage serious sex offenders to undertake rehabilitation. Unlike a sentence of imprisonment, an extended supervision order may be varied or revoked under s 13 or a second or subsequent supervision order may be made against the same person: s 10(3). This reflects the different objects of the Act and the measures which the Act allows to achieve those objects. [63] I do not think it is helpful to draw upon analogies from the area of sentencing law such as the concept of a "crushing sentence". The totality principle is designed to avoid a Court imposing a 'crushing sentence' in the sense that 'it will induce a feeling of hopelessness and destroy any expectation of a useful life after release': R v MAK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17]; Kerr v R [2008] NSWCCA 201 at [27]. [64] The conditions of the extended supervision order which I propose to make in this case will themselves contain an element of flexibility. The Act provides incentive or encouragement for a person to maintain progress towards rehabilitation. The conditions of the order will provide a framework in which an objective measurement of rehabilitation may be made. At the same time, the terms of the order will serve to protect the community. All of this will occur, in this case, in the context of a person released from a decade in custody facing a range of challenges which will test the progress he has made, and allow him to demonstrate progress in a non-custodial, but nevertheless supervised context. This will be a long-term project. [65] In the circumstances of this case, I am satisfied that an extended supervision order should be made for a period of five years. I do not consider that such a term will have a negative impact on the Defendant's prospects of rehabilitation. [66] As Fullerton J observed in Attorney-General for NSW v Hadson at [32], much will depend on how the Defendant responds to the current program and whether any variation to the risk-management strategy is called for as assessed by those who manage him and monitor his progress."
The experts are agreed that Mr Kamm will require long-term treatment.
Dr Ellis expressed the following view: "From a psychiatric perspective a period of five years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. His comorbid personality style impacts upon likely treatment and supervision response. It is most likely that a period of 24 months will be required to maintain a stable mental state and regular meaningful activity both occupational and social in the community, given the restrictions on persons subject to extended supervision orders. He likely requires an alternative plan than engagement with his past religious activities. A further 36 months of regular treatment in a psychological program, coupled with regular review of antilibidinal medication should they be prescribed would be necessary. The psychological program should focus on methods for controlling deviant sexual arousal and moderating his narcissistic interactional style. This period is estimated based on his current mental state, likely paraphilia, personality style and current attitudes to supervision that will be unlikely to change in the short term. … His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point."
Dr Lennings was of a similar opinion: "Should an ESO be sought the duration of that ESO will depend on the duration of Mr Kamm's maintenance of his privileged position as a religious authority and seer. He remains committed to his theory of being a prophet and continues to address his half million followers around the world. He continues to promote his role as a man of mystical importance. As long as such behaviour is manifest so his risk will remain. It is not possible for me to see how long that might be, but I suspect his role is now so ingrained into his personality, and the advantages from it, such as financial support, are so central to his existence, that he will with only the greatest reluctance forsake that role. I do not believe [that] will occur within the next five years, so I perceive a five year limit as necessary to contain his risk."
Dr O'Dea put the matter in these terms: "Despite his age, Mr Kamm's risk of engaging in further sex offending behaviours in the community, and of committing a further 'serious sex offence' in the community, is likely to be longer term, and potentially of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration. However, it should be regularly monitored and reviewed every 6 to 12 months dependent on his progress."
Finally, Mr Sheehan relevantly said this: "Given the chronic nature of Mr Kamm's entrenched personality dysfunction it is simply not realistic to expect total extinction of the negative features of coping (the need to maintain a grandiose self-image through his faith-based activities) in the short or even medium term. Successful management will involve a gradual process of reduction and containment of these behaviours until such a time as they lessen in frequency and severity. In this respect, a five-year order would seem practical."
Mr Kamm contended that a shorter period would be preferable inasmuch as it would operate as an incentive or encouragement to him to change over time and respond to treatment. Although the legislation provides that an order for 5 years can be made, a lesser period may be adopted. Significantly, the assessments of the various practitioners are based on a variety of dynamic risk factors, suggesting the possibility of change over time. Mr Kamm submitted that a shorter period would give recognition to the fact that circumstances may change and recognise the very intrusive nature of the order: see, for example, New South Wales v Bowdidge [2015] NSWSC 717 at [34] and State of New South Wales v Lynn [2015] NSWSC 665 at [84].
Section 13(1) of the Act provides that the Supreme Court may at any time vary or revoke and extended supervision order on the application of either the State or the offender. One of the bases upon which the Court may revoke an extended supervision order is if it is satisfied that circumstances have changed sufficiently to render the order unnecessary. In the present case the expert medical opinion strongly favours the imposition of conditions for the maximum period of five years. I can see no reason why that opinion should not be accepted and applied. If there is a change in circumstances, or for any other reason, Mr Kamm can apply for a revocation of the order. Far from operating as a disincentive or discouragement, Mr Kamm would to a considerable extent become the author of his own destiny.
I consider that the order should be made for the maximum period allowable.
The State proposed a series of conditions to which Mr Kamm should be subjected. I have largely adopted those conditions. However, I have deleted some of the proposed conditions that appeared to me to be unnecessary or inappropriately restrictive and I have amended others. Having regard to the risk posed by Mr Kamm, the conditions appearing in the Schedule to these reasons seem to me to be more than adequate to deal with the unacceptable risk that I have identified.

Orders

In the circumstances I make the following orders: 1. Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that William Kamm be subject to a high risk sex offender extended supervision order for a period of 5 years from today. 2. Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that William Kamm comply with the conditions set out in the SCHEDULE to these orders. SCHEDULE Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. Electronic Monitoring 5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 8. The defendant must not deviate from his approved schedule of movements except in an emergency. 9. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation 10. The defendant must live at an address approved by his DSO. 11. The defendant must be at his approved address between 10pm to 6am unless other arrangements are approved by his DSO. 12. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time the defendant is there and, for that purpose, to enter the premises at that address. Part C: Place and travel restrictions 13. The defendant must not leave New South Wales without the approval of CSNSW. 14. The defendant must surrender any passports held by him to the Commissioner. 15. The Defendant must not go to any residence where females under the age of 17 ordinarily reside. 16. The defendant must not reside in the Nowra area, as defined by the area depicted on the map that is Annexure A to the conditions imposed by R S Hulme J on 13 October 2015, including the entirety of Kaloona Drive, Cambewarra, except with prior approval of the DSO. Part D: Employment, finance and education 17. Deleted. Part F: Non-association 18. Deleted 19. The defendant must not approach or have contact with females who he knows are under the age of 17 except with the prior approval of the Defendant's DSO to that approach or contact. 20. The defendant must obtain written permission from the DSO prior to joining or affiliating with any internet or mobile based social networking service. Part I: Internet and other Electronic Communication NOTE: In conditions 21 to 25 below, "Communications Devices" includes phones, computers, tablets and data storage devices. 21. The defendant must give his DSO lists of all communication devices he uses or which are commonly present in his residence. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection. In the event the number or identity of such devices changes, the Defendant shall immediately provide written advice of such change to his DSO. 22. The defendant must not use more than one phone, one tablet, one computer and one other data storage device, the details of which have previously been provided to the defendant's DSO. 23. Except with the prior written consent of the Defendant's DSO, the Defendant must not use any communications device which he does not own. 24. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. Part J: Search and seizure 25. The defendant must allow his DSO or CSNSW to search at any time any communications device the defendant may use. 26. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs c to f below) is necessary: a. to monitor the defendant's compliance with this order; or b. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: c. search and inspection of any part of, or anything in, the defendant's approved address; d. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; e. search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or f. search and examination of his person. 27. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 28. During a search carried out pursuant to conditions 25 or 26 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the welfare or safety of any member of the public or any other person; or b. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence. 29. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions above. Part L: Personal details 30. The defendant must not change his name from "William Kamm" or "William Costellia" or use any other name without notifying his DSO. 31. The defendant must not use any alias, log-in name, or a name other than "William Kamm" or "William Costellia" or use any email address other than those known to the DSO, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 32. The defendant must let CSNSW photograph him at all reasonable times. 33. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part M: Medical intervention and treatment 34. Deleted. 35. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend and agree to all persons providing such assessments, therapy, support and treatment providing details thereof to the DSO. 36. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. 37. Deleted. NOTE: In these conditions: - "DSO" means the Departmental Supervising officers appointed to supervise the Defendant. "CSNSW" means Corrective Services.

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: 08 January 2016

At a glance

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Judgment (26 paragraphs)

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Cases Cited (22)

Cited By (50)