State of New South Wales v Kamm [2015] NSWSC 1492

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Kamm [2015] NSWSC 1492 Hearing dates: 8 October 2015 Date of orders: 13 October 2015 Decision date: 13 October 2015 Jurisdiction: Common Law Before: RS Hulme AJ Decision: See paragraph 26 Catchwords: High risk offender – interim order - conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW): Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) William Kamm (Defendant) Representation: Counsel: I Freckelton QC with D T Kell (Plaintiff) D Carroll (Defendant)

Solicitors: State Crown Solicitor (Plaintiff) SJT Law (Defendant) File Number(s): 2015/277682 Publication restriction: No

Judgment 1. By an Amended Summons filed on 1 October 2015, the State of New South Wales seeks against the Defendant orders, inter alia, as follows: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Appointing two qualified psychiatrists to conduct separate examinations of the Defendant and to furnish reports to this Court. 2. Directing the Defendant to attend those examinations. 1. An order pursuant to s 10A of the Act, that the Defendant be subject to an interim supervision order from 13 October 2015 and comply with conditions set out in a Schedule to the Summons. 2. Orders: 1. Pursuant to s 5C and s 9(1)(a) of the Act that the Defendant be subject to a high risk sex offender extended supervision order for a period of 5 years. 2. Pursuant to s 11 of the Act directing that the Defendant for the period of the extended supervision order, comply with the conditions set out in a Schedule to the Summons. 1. It is only the first and second prayers and the terms of any order which were canvassed before me. 2. On 14 October 2005 the Defendant was sentenced by Williams DCJ in respect of one count of aggravated sexual intercourse contrary to s 66C(2) and four counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW) of which the Defendant had been found guilty. The complainant in respect of those offences was aged 15 years at the date of them. 3. On 24 August 2007 the Defendant was sentenced by Berman DCJ in respect of one count of an aggravated act of indecency and five counts of aggravated sexual intercourse with a person between 10 and 16 years of age. 4. The effective sentence imposed on the Defendant for all of the offences to which reference has been made was of imprisonment for 10 years including a non-parole period of 7½ years, both such periods commencing on 14 October 2005. In fact, the Defendant was not released to parole until 14 November 2014. 5. Remarks of Judge Williams indicated that the Defendant had been actively involved in the promotion of a religious community and of himself as the leader of that community. He claimed to receive visions or visitations by the Virgin Mary. Among revelations he claimed to have received were that he was to have a number of queens and princesses. As an incident of establishing a relationship with the complainant in the charges before Judge Williams, the Defendant informed her that she was to become one of these queens. Williams DCJ characterised the Defendant's conduct as a gross breach of trust bearing consequences that can only be described as traumatic. 6. The religious community seems to have been centred physically on some land owned by the Defendant. The size of the community is not clear but the Defendant told his parole officer that it had over 500,000 devotees. 7. Williams DCJ also made reference to a psychological report which had been placed before him during the course of the sentencing hearing. Included in that report were the conclusions that the Defendant "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. He has shown a substantial lack of insight about the nature of his offence and about the effects of his sexualisation of the victim." 8. Berman DCJ recorded that the Defendant's position and claim of direct communication with the Virgin Mary gave the Defendant "a powerful way over which he could manipulate the beliefs and actions of his followers [and] he was able to control the actions and desires of young girls with whom he wanted to have sex. His Honour considered that the Defendant had manipulated the complainant in the case before him because the Defendant wanted to have sex with her. 9. The evidence which was tendered on the application before me was voluminous. It is unnecessary for me to refer to most of this but it did include a number of reports. Included in these were reports of Dr Andrew Ellis, psychiatrist, of 30 July 2015 and Dr Christopher Lennings, psychologist, which is undated but the contents of which indicate that it was after 13 February 2015. 10. Dr Ellis concluded as a provisional diagnosis that the Defendant had a paraphilic disorder and pointed out that such disorders are chronic, relapsing conditions. He said also that the Defendant exhibited a grandiose sense of self importance and would meet the criteria for narcissistic personality disorder. He observed that should the Defendant return to the position of spiritual leader of the religious community, the risk of repeat behaviour would be considerable. 11. Dr Lennings opined that although a static risk assessment concluded that the Defendant's risk of reoffending was low, a dynamic risk assessment provided the most useful measure of risk. Such a dynamic risk assessment led to the conclusion that the Defendant's risk rating was high, "and if he is able to avoid supervision of his behaviour, his manipulative and deceitful manner as well as intense egocentricism and narcissistism will likely lead to further attempts at offending". 12. Dr Lennings observed also that the Defendant "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". Dr Lennings said also that there was a high likelihood of further serious sexual offending should Mr Kamm be released into the community without supervision. 13. Dr Lennings also remarked that some of the supervision conditions of which he had apparently been made aware seemed unreasonable and unrelated to the risk the Defendant posed but, given the conclusions at which I have arrived on that topic, I do not need to canvass Dr Lennings' remarks further. 14. Having regard to the limited number of matters that were in issue before me, it is unnecessary for me to refer at length to the provisions of the Act. It is sufficient to say that in the circumstances of the case s 10A(b) requires that before I can make an order I need to be satisfied "that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order." The Act does not specify the criteria for the making off such an order but clearly the following matters inform the making of any such determination, viz: The object of the Act, viz: "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." The definition of a "high risk sex offender" viz: an offender who "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." The matters specified in s 9(3) of the Act and to which the Court is required to have regard in determining whether to make an extended supervision order. 1. The matters specified in s 9(3) include the following: 1. The safety of the community. 2. … 3. The results of any other assessments prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment. 4. … 5. Any treatment or rehabilitation programs in which the offender has had an opportunity to participate the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs. 6. … 1. (h1) The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender. 2. (i) Any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature… 1. In light of these various considerations and in particular the risk which, in the psychiatric and psychological reports, the Defendant is said to pose, it is clear that interim orders along the lines of those sought by the Plaintiff should be made. Even without the psychiatrists' and Dr Lennings' opinions, on the basis of the Defendant's past offending, apparent personality and dominant position in his religious community, I would have formed the view that interim orders imposing restraints on the Defendant should be made. 2. I should add that that conclusion was reached over the opposition of counsel for the Defendant but he put nothing before me to contradict what seems to me to be the clear conclusion flowing from the material tendered on behalf of the Plaintiff. There was however agreement on the identity of the persons who should examine and prepare reports to the Court were I to conclude that such examinations and reports were appropriate. 3. A question does arise however as to the extent and nature of the restraints or supervision that is appropriate. The Plaintiff proposed some 50 conditions. Even without hearing from counsel who appeared for the Defendant I expressed the view that something of the order of 15 were unnecessary or too restrictive. Counsel for the Defendant objected to some 27 of those proposed and the topic was debated. Ultimately counsel for the Plaintiff retreated from some of the original fifty. 4. Set out in my orders are the conditions that I do regard as appropriate. However, because I have seen no detailed consideration of the conditions appropriate in orders such as those to be made by me, and many of the features present here are liable to be common to others against whom similar orders are sought, it may be appropriate to indicate the factors that have led me to the views I hold as to the appropriate conditions. 5. Firstly, I accept that the restrictions on the Defendant's activities are appropriate and that monitoring both to reduce the prospect of the Defendant not complying with restrictions and finding out if he does not comply is also appropriate. However the restrictions should be reasonably related to the particular risks that the Defendant presents and, so far as possible, any restrictions should be defined in advance, not left to some Departmental Officer to define in the future, and this whether or not that person is under an obligation to be reasonable. 6. In the Defendant's case the risk obviously relates to females under 16 and restrictions concerning interaction or communication with such persons or being in their company are clearly appropriate. It is reasonably incidental to this that the Defendant's residence and movements should be specified but I see no relevant connection between the risk that the Defendant presents and the suggestion that the Defendant's employment or financial transactions should be dictated by a Departmental officer. 7. Monitoring may reasonably involve consideration of the Defendant's use of communication devices such as phones or computers but that can reasonably be done by limiting the electronic devices the Defendant can use and allowing access to them, without preventing the Defendant from going to any of the vast number of places that provide internet access. 8. Largely the matters just referred to were the principal reasons why I have declined to impose on the Defendant all of the conditions that the Plaintiff sought although I should add that I regarded some as effectively duplicated or unworkable. Those which I declined to impose were:- 3 The Defendant must follow all reasonable directions by his DSO or any other person supervising him. 13 The Defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14 The Defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. 17 The Defendant must not go to a place if his DSO tells him he cannot go there. 18 Without limiting condition 17 above, the Defendant must not go to any: a. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies). b. … 20 If the Defendant is unemployed, the Defendant must enter available employment if and as directed by the SO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 21 The Defendant must not start any job, volunteer work or educational course without the approval of his DSO. 24 The Defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO. 25 The Defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO. 29 If the Defendant is currently in a relationship or intends to start a relationship with someone other than his wife, he is to inform the DSO who may then inform that person about the Defendant's criminal history. 32 The Defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 35 If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the Defendant's approved address; b. … Then the DSO may direct, and the Defendant must submit to: d. search and inspection of any part of, or anything in, the Defendant's approved address. e. … 37 During a search carried out pursuant to condition 35 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 safety of residents or of staff at the Defendant's approved address; b. … or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the Defendant committing a serious offence. 47 The Defendant must take all medications that are prescribed to him by his healthcare practitioners. 48 If the Defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the Defendant is to notify the DSO within 24 hours of ceasing to take the medication. 49 The Defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 1. So far as the balance are concerned, I regard them as appropriate, though in some cases, with some adjustment of the operation or wording. That adjustment is reflected in my orders. 2. Accordingly the orders that I make are:- 1. Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006, appoint Dr Jeremy O'Dea and Patrick Sheehan to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 4.00pm on 20 November 2015. 2. Pursuant to s7(4)(b) of the Act, direct the Defendant to attend to those examinations. 3. Pursuant to s 10A of the Act, the Defendant is subject to an interim supervision order from 13 October 2015 for a period of 28 days. 4. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to this Order for the period referred to in paragraph 3 above. 5. List the matter for further mention, and for the purpose of the State's application to extend the interim supervision order, before the Common Law duty judge on 6 November 2015. 6. Direct that access to the Court file in respect of any document shall not be granted without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to be given the opportunity to be heard. 7. Grant liberty to the parties to apply on 24 hours' notice. 8. SCHEDULE 1. Reporting and Monitoring 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 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. 4 The Defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. 5 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. 6 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. 7 The Defendant must not deviate from his approved schedule of movements except in an emergency. 8 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. 1. Accommodation 9 The Defendant must live at an address approved by his DSO. 10 The Defendant must be at his approved address between 10pm to 6am unless other arrangements are approved by his DSO. 1. 11 The Defendant must allow his DSO or any other person supervising the Defendant 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. 2. Place and Travel Restrictions 12 The Defendant must not leave New South Wales without the approval of CSNSW. 13 The Defendant must surrender any passports held by the Defendant to the Commissioner. 1. 14 The Defendant must not go to any residence where persons under 18 ordinarily reside. 2. 15 The Defendant must not reside in the Nowra area, as defined by the area depicted on the map that is Annexure A to these conditions, and including the entirety of Kaloona Drive, Cambewarra, expect with prior approval of the DSO. 3. 16 The Defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. 4. Non-Association 5. 17 The Defendant must not approach or have any contact with any person under the age of 16 except with the prior written approval of the Defendant's DSO to that approach or contact. 6. 18 The Defendant must not have any frequent or regular contact with any person who resides with any person who is under the age of 16 except with the prior written approval of the Defendant's DSO to that contact. 7. 19 The Defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. 8. The Internet and other Electronic Communication 9. 20 In conditions 21 to 25 below, "Communications Devices" includes phones, computers, tablets and data storage devices. 10. 21 The Defendant must give his DSO lists of all communications devices he uses or which are commonly present in any residence of the Defendant. 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 any internet connection. In the event the number or identity of such devices changes, the Defendant shall immediately provide written advise of such change to his DSO. 11. 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. 12. 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. 13. 24 The Defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 14. 25 The Defendant must allow his DSO or CSNSW to search at any time any communications device the Defendant may use. 15. Search and Seizure 26 If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d 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. 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. 1. NOTE: 2. "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. 3. "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 condition 35 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 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. 1. Personal Details 2. 30 The Defendant must not change his name from "William Kamm or William Costellia" or use any other name without the approval of 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 under condition 33 above, 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 not change his appearance without the approval of his DSO. 1. 33 The Defendant must let CSNSW photograph him at all reasonable times. 2. 34 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. 3. Medical Intervention and Treatment 35 The Defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 36 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. 37 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. 38 In these conditions:- "DSO" means the Departmental Supervising Officer or officers appointed to supervise the Defendant. "CSNSW" means Corrective Services NSW.