By Summons filed on 6 November 2020, the State of New South Wales seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006, ("HRO Act") against William Costellia-Kamm, to whom I will refer as the defendant. Those orders included interlocutory and final orders. The final order sought was the imposition by the Court on the defendant of an extended supervision order with conditions for a further period of five years.
The interlocutory orders sought were as follows.
1. An order pursuant to s 7(4) of the HRO Act appointing two qualified experts to examine the defendant and directing the defendant to attend those examinations, and,
2. An interim order pursuant to s 10A of the HRO Act that the defendant be subject to an interim supervision order commencing from midnight on 7 January 2021 for a period of 28 days unless renewed or the application is finally determined and an order directing the defendant to comply with the conditions set out in the schedule.
This judgment deals only with the interlocutory orders.
In 2005 the defendant was convicted of sexual offences which occurred in 1993 against a girl who was aged 15 at that time. One of those offence was an aggravated sexual assault, contrary to s 66C(2) of the Crimes Act 1900. There were also four offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The defendant was sentenced to an effective term of 5½ years with a non-parole period 3½ years.
In 2007 the defendant was convicted of further offences which had also occurred in 1994 and 1995. There were five offences of aggravated sexual assault contrary to s 66C(2) of the Crimes Act and a further offence of committing an act of indecency in circumstances of aggravation contrary to s 66O(1) of the Crimes Act.
The second victim was aged 14 or 15 years. The defendant was sentenced to an effective term of 10 years imprisonment with a non-parole period of 7½ years.
On 8 January 2016, Harrison J imposed an Extended Supervision Order ("ESO") under the HRO Act for a period of five years. His Honour's extensive reasons are set out in his judgment State of New South Wales v Kamm (Final) [2016] NSWSC 1. Justice Harrison, at [9]-[10] of his judgment, described the defendant and his risk profile in this way.
"9. In a recent psychiatric report Dr Andrew Ellis assessed Mr Kamm as having a paraphilic disorder (provisional) centred upon deviant sexual arousal. Dr Ellis described the disorder as being a chronic, relapsing condition that is resistant to treatment and rehabilitative efforts. Mr Kamm is also identified as having a co-morbid narcissistic personality disorder which has an impact upon his treatment and supervision response. In a psychological risk assessment report dated 7 September 2015 Dr Christopher Lemmings opined that there is a high likelihood of further serious sexual offending should Mr Kamm be released into the community without supervision.
10. Mr Kamm continues to present himself as the 'Little Pebble' and to preach his unorthodox religious views by the Littlepebble.org website. He says he continues to receive visions. He also continues to have contact with members of his religious order and states that he receives gifts from his followers."
In considering the risks posed by the defendant, Harrison J said at [90]:
"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 to him to gain ready access to under-age victims. This is a potent factor in connection with his risk OF sexual recidivism."
His Honour gave his reasons for imposing an ESO at [170] ff of his judgment. He concluded that the defendant posed an unacceptable risk of committing a serious sex offence if he was not kept under such supervision and he was satisfied that the defendant did so to a high degree of probability. His Honour said at [171]:
"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 uses its 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 dilutions or self-serving lies, it is ultimately irrelevant for present purposes."
At [173], his Honour continued:
"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… The difficulty for present purposes is that these perceptions, which at the heart of Mr Kamm's original offending, showed no significant or appreciable sign of attenuation.
At [175], his Honour said:
"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 against 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 of 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."
As I have said, the order of Harrison J expires on 7 January 2021.
The defendant, whilst making it plain that he reserves his position with respect to any final hearing of the proceedings, neither consented to, nor opposed, the Court making an interim supervision order, or the other orders sought by the plaintiff.
No admission was made with respect to the necessary pre-conditions for the making of those orders but equally no submission was put in opposition to them. The defendant, however, did oppose the imposition of any condition which had the effect of preventing him from visiting or living at a property which he owns at Cambewarra, an area near Nowra. It is there, as Harrison J noted, that a religious community is located and where each of the victims of his criminal offences had previously lived.
There is, I am satisfied, particularly in the absence of any opposition from the defendant, sufficient evidence in the material before me which would justify the making of an Interim Supervision Order ("ISO") with effect from 7 January 2021.
At the least, Mr Ardasinski's expert opinion is that, applying various risk assessment tools, the defendant falls within the medium category for general and violent offending according to the LSI-R instrument, and his score on the Stable 2007 Instrument is 6, which suggests a moderate density of criminogenic needs relative to other male sexual offenders.
I accept that on two other risk assessment tools performed by Mr Ardasinski, the defendant's score fell into the very low risk category. As Mr Ardasinski points out, there are additional idiosyncratic features with respect to the defendant, including that he has not breached the existing ESO for the 5 year period of its existence. These idiosyncratic features are, in my view, insufficient to significantly diminish the risk assessments made of medium category for general and violent offending. If anything, those features increase the defendant's risk of recidivism. In particular, on the available evidence, there is no convincing or sustained change to the defendant's attitude towards his sexual offending as described by Harrison J in his judgment at [175].
As the present application is for an ISO, I am not engaged in the weighing up of the documentation or else predicting the ultimate result of proceedings. Rather, I need to be satisfied that the matters set out in the documentation relied upon by the plaintiff would, if proved, justify the making of an ESO. This is a test akin to the test of a prima facie case in committals under the previous law: see Attorney General for New South Wales v Kapeen [2018] NSWSC 619 at [16]; Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [38]. It is to the standard set out in those authorities that I have been satisfied that the Court should make an ISO and the additional orders with respect to the medical examination.
I turn now to consider the question of what conditions are appropriate to be made with respect to the ISO. I do so in the context that senior counsel for the defendant indicated that the defendant opposed any order which had the effect of precluding him from returning to Cambewarra. It seems to me, from the conditions which are sought as annexed to the Summons, the conditions that need to be considered are those numbered 8, 10 and 13. They are in the following form.
"8. The defendant must live at an address approved by a DSO and notify the DSO of any intention to change the defendant's address or living arrangements.
10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the prior approval of a DSO.
13. The defendant must not frequent or visit any place or district specified by a DSO."
The issue of this application is whether those conditions, which would have the effect of precluding the defendant going to Cambewarra, unless that was approved by his DSO, are appropriate for an ISO: see s 11 of the HRO Act.
In broad terms, the Court's powers to impose conditions is regarded as being a broad one: see Wilde v State of New South Wales [2015] NSWCA 28 at [47]. Any court in considering the imposition of conditions must engage in a balancing exercise between all relevant considerations so as to provide an outcome which is fit and proper in the particular circumstance of the individual defendant. In so doing, the Court needs to bear in mind that the imposition of conditions under this Act creates a statutory offence if conditions are breached.
That, of course, emphasises the need to ensure that there is a proper basis demonstrated for the condition to be imposed: see State of New South Wales v Ali [2010] NSWSC 1045 at [88].
The authorities also require the Court to form the view that the conditions which it imposes address the specific risk factors which are identified in the evidence. As Fullerton J explained in State of New South Wales v Bugmy [2017] NSWSC 855 at [89]:
"The Court is entitled to expect that the conditions the plaintiff proposes that Mr Bugmy be subject to, are drafted to address what are identified in the evidence as the risk factors to his further violent offending. The conditions must not be unjustifiably onerous or simply punitive. Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must at least be capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence in contrast to reducing or minimising the risk of him offending in other ways." (citations omitted)
In balancing the various considerations, I have to keep in mind the ordinary rights of citizen to go about their day-to-day life in a lawful way free from officious or unnecessary restrictions of any kind: see State of New South Wales v Ley Thomas Baker (No. 2) [2015] NSWSC 483.
The conditions proposed by the State, including conditions 8, 10 and 13, are in my view appropriate. They significantly address the risk factors identified by Harrison J to which I have earlier referred, and which seem to me to remain.
I am not persuaded that for the next three months or so until the final hearing of this matter the inability of the defendant to visit or reside at Cambewarra, assuming a continued refusal of permission by a DSO, is an undue impact upon the defendant's ability to go about his normal life.
The evidence does not suggest that it has impacted him in any burdensome way in the last 5 years. It is difficult to see how there could be now, and for the next 3 months, any change in this burden.
Senior counsel for the defendant argued that the elapse of time, the medical condition of the defendant, the change in the nature of the individuals and families that reside at Cambewarra, including the significant diminution in the size of the adherents to the defendant's religious group, all combine to show that any risk of further serious offending would be removed if the defendant was able to visit or reside at Cambewarra.
The matters to which senior counsel pointed are, of course, highly relevant. However, in this civil proceeding, and noting that it was only on an interlocutory basis, the absence of any evidence from the defendant himself would tend to diminish the weight which I could attribute to those factors. That is because, so far as I can tell on the evidence that is before me, the better view is that all of the risks that existed when the extended supervision order was first imposed continue to exist and those risks are of serious sexual offending in the future.
Accordingly, I reject the arguments of the defendant that the orders of this Court should permit him to visit and/or live at Cambewarra. I keep in mind that although to date it might be thought that there has been a degree of irrational intransigence on the part of the departmental supervising officer in refusing permission to the defendant to even visit the property, there remains a rational prospect that the defendant would be permitted to visit the property and stay there overnight, subject, of course, to appropriate supervision and undertakings and other conditions that a DSO sees fit.
I note, finally, that as this is an interim application heard urgently, there is nothing in these short reasons that should be taken to indicate that I have formed any view, or that any other judge of this Court would necessarily form a view, that a final extended supervision order ought in fact be made at the time the Court comes to consider all of the evidence put before it. Putting it as simply as I can, in an interim application of this kind, where the Court is looking at a degree of satisfaction at a relatively low level, and in the absence of positive persuasion that the risks which were identified in Harrison J's judgment as requiring an ESO have been at all mitigated, it is almost inevitable that this Court will make an interim order against this defendant in the terms sought, which largely reflect those imposed by Harrison J, at least until the hearing of any final order.
Accordingly, for all of those reasons, I make the following orders:
1. Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 that two qualified psychiatrists or psychologists, or any combination of such persons, be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations.
2. Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 that the defendant attend such examinations as are appointed by the plaintiff.
3. Order pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an interim supervision order commencing from midnight on 7 January 2021.
4. Order pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act 2006 that that interim supervision order continue for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or else the proceedings are finally determined.
5. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act that for the period of this interim supervision order the defendant is to comply with the conditions set out in schedule A to the summons filed by the plaintiff on 5 November 2020.
6. Stand the proceedings over for directions before the Court at 9.30am on Tuesday, 2 February 2021.
7. Grant the parties liberty to apply.
[2]
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Decision last updated: 01 February 2021