State of New South Wales v Costellia-Kamm (Final)

1. [1]

   By Amended Summons filed in court by leave, and without objection by the defendant, on 23 March 2021, the State of New South Wales (“the State”) seeks an Extended Supervision Order (“ESO”) under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for a period of 5 years subject to conditions to be imposed under s 11 of the Act as set out in Schedule A to the Amended Summons.

2. [2]

   The defendant opposes the making of the ESO and, if unsuccessful, argues about the appropriateness of some of the conditions sought.

3. [3]

   This is the State’s second application for an ESO against the defendant. Section 10(3) makes clear that the Supreme Court may make “a second or subsequent extended supervision order against the same offender”. The first order was made by Harrison J on 8 January 2016 for a period of five years expiring at the end of 7 January 2021: State of New South Wales v Kamm (Final) [2016] NSWSC 1. Since the expiration of the ESO, the defendant has been subject to a series of interim supervision orders (“ISO”) under ss 10A and 10C of the Act. The last of these, made by me, expires at the end of 7 April 2021.

4. [4]

   Unless otherwise specified, all future references to legislation in this judgment are references to the Act.

The issues for determination

1. [5]

   As s 21 makes clear, proceedings under the Act are civil proceedings and are to be conducted in accordance with the law relating to civil proceedings. For this reason, it is appropriate to refer to aspects of Harrison J’s conclusions underpinning his decision that his Honour was satisfied to the requisite high degree of probability that the defendant posed an unacceptable risk of committing another serious sex offence if not kept under supervision under an ESO.

2. [6]

   Since his Honour’s decision there have been significant amendments to the Act, particularly by Crimes (High Risk Offenders) Amendment Act 2017. Those amendments “extend… to persons subject to an extended supervision order… immediately before the commencement of the amendments”, like the defendant: Schedule 2 Part 10 Clause 17(c).

3. [7]

   Before turning to the relevant findings of Harrison J, I will identify the matters in issue. The preconditions for making an Extended Supervision Order are prescribed by s 5B. They are four in number. There can be no issue about the conditions specified in paragraphs (a) to (c) of s 5B. As to s 5B(a), the defendant is an offender who has served a sentence of imprisonment for a serious offence, in this case a serious sex offence as defined by s 5, being a number of offences under Division 10 of Part 3 of the Crimes Act 1900 (NSW) carrying a maximum penalty of imprisonment of 10 or more years. Chronologically, those offences are a conviction in 2005 for one count of aggravated sexual intercourse with a child under 16 years of age contrary to s 66C(2), and four counts of aggravated indecent assault contrary to s 61M(1), all involving the same victim. And the index offending for which he was convicted in 2007 of five counts of sexual intercourse with a child aged more than 10 and under 16 years of age in circumstances of aggravation, again, contrary to s 66C(2). As against the victim of this offending, the defendant was also convicted of one count of aggravated indecent contrary to s 61O(1). This offending does not fall within the definition of a serious sex offence. In respect of each offence, the circumstance of aggravation was that the victim was at the time of the offending under the authority of the defendant. Sections 66M and 66O have since been repealed and replaced by other provisions.

4. [8]

   As to s 5B(b), the defendant is a supervised offender within the meaning of s 5I as when the proceedings were commenced he was an offender who was under an existing ESO. As to s 5B(c), the application otherwise conforms with s 5I(1). The only precondition disputed is whether the defendant poses an unacceptable risk of committing another serious (sex) offence if not kept under an ESO as required by s 5B(d). As I have said, if I find the s 5B(d) precondition established to the requisite high degree of probability, the defendant submits that I would, nonetheless, exercise my discretion in accordance with s 9(1)(b) by dismissing the application.

Justice Harrison’s decision

1. [9]

   By way of background, it is necessary to recount that the defendant is a nominally Catholic, self-appointed cult leader (Exhibit C – Report of Dr Richard Furst 3 March 2021 page 6, and pages 14–16). The cult is styled by the defendant as the Order of Saint Charbel. At the time of the offending, and since, the cult was based at Cambewarra on the New South Wales South Coast. As its leader, the defendant styled himself “the Little Pebble”. He claims to have had a legion of adherents around the world. He maintains that claim.

2. [10]

   He is a self-professed “seer” or “prophet” who claims to be in direct, revelatory communication with the Lord Jesus Christ and, especially, his Holy Mother. These communications take the form of visions he claims to receive by divine inspiration. On his account, the frequency has varied over the decades. He still receives them at about the frequency of one each month. He interprets the revelations for the benefit of his devotees and, he says, the church hierarchy by disseminating their content over the internet.

3. [11]

   Part of the “doctrine” he claimed to have received by divine inspiration is that he is to be the last pope who was to be joined in a polygamous relationship with 12 queens and a polyamorous relationship with 72 princesses “who would enjoy a superior spiritual status within the community and with whom [the defendant] would procreate to re-populate a royal dynasty after the Second Coming” (Exhibit P – report of Dr Anthony Samuels 18 February 2021 at [151]). The victims of his offending apparently enjoyed this “superior spiritual status” as either queens or princesses. The distinction between the queens and princesses according to this “doctrine” is that the queens would be wives of the defendant but the princesses may marry others while at the same time choosing to procreate with the defendant. It is quite clear that the defendant continues to believe in this “doctrine”, however, now says that 20 years ago, “our Lord told me to put it aside until he comes again”: Exhibit B [380]; report of Marie Rubio dated 12 March 2014 quoted by Harrison J at [103].

4. [12]

   It goes without saying that the defendant’s beliefs are not recognisable as authorised or accepted Christian doctrine. Indeed, he and his cult have been excommunicated by the Catholic Church.

5. [13]

   Against this background it is perhaps unsurprising that the defendant has refused to accept responsibility for his offending. Rather he loudly proclaims his innocence in which he is supported by the remaining vestige of devotees. He has spoken to Dr Samuels and Dr Furst, amongst others, even yet about the possibility of a High Court appeal against his convictions.

6. [14]

   Justice Harrison found the s 5B(d) precondition established to the statutory high degree of probability on the evidence before him for the following reasons ([170] to [176]):

The submissions of the parties

1. [15]

   The State submits that the defendant continues to pose an unacceptable risk of committing another serious offence if not kept under supervision relying upon the following matters:

2. [16]

   The defendant submitted that:

Unacceptable risk consideration

1. [17]

   I bear in mind that the primary object of the Act in providing for extended supervision of high risk offenders is “to ensure the safety and protection of the community”. Another object is to encourage such offenders to undertake rehabilitation: sub-ss 3(1) and (2).

2. [18]

   As Gleeson JA put it in Lynn v State of New South Wales (2006) 91 NSWLR 636; [2016] NSWCA 57, “it would subvert the language of the statute if the interests of the offender in liberty and privacy were to be taken into account in the assessment of the threshold of ‘unacceptable risk’… There is no ‘balancing’ exercise involved in the Court’s assessment of the threshold of ‘unacceptable risk’”: (at [148]).

3. [19]

   In the same case, Basten JA said (at [126]):

4. [20]

   I also bear in mind in Lynn, Beazley P (at [61]) observed that when assessing risk the object to be borne in mind is “making the community secure from harm as opposed to guaranteeing its safety and protection… were it otherwise, every risk would be unacceptable”. In the same vein Fagan J in State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161 posed the rhetorical question (at [32]):

5. [21]

   Moreover, on this threshold s 5B(d) issue, I bear firmly in mind that the standard of proof is higher than the usual civil standard even allowing for its flexibility where the consequences for the individual may be significant: s 140(2) Evidence Act 1995 (NSW); Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. What is required is satisfaction to a high degree of probability. Although this state of persuasion may be achieved even if “the risk of an offender committing a serious offence” is not “more likely than not”: s 5D. So far as this heightened standard of persuasion is concerned, I regard it as useful to bear in mind the dictum of a plurality of Keifel CJ, Bell, Keane and Steward JA in Minister for Home Affairs v Benbrika [2021] HCA 4. Benbrika was concerned with the cognate but somewhat different context of Division 1A of the Criminal Code (Cth) which confers the power to make a continuing detention order in respect of offenders posing a risk of committing a terrorist offence. Their Honours said:

6. [22]

   Having regard to these legal considerations, I am satisfied to the requisite high degree of probability that the defendant poses an unacceptable risk of the commission of another serious sex offence if not kept under an ESO. I have concluded that on the evidence, the State have proved that there has been no real or material change in the nature of the risk posed by the defendant since Harrison J imposed the first ESO in January 2016.

7. [23]

   In saying this, I acknowledge that there are some positive countervailing considerations established by the evidence. The defendant is now 70, and I accept that advancing age is a protective factor which may reduce the risk of offending somewhat, but it does not, in my judgment, of itself eliminate, or reduce, it within the bounds of acceptability. It has been a quarter of a century since he last offended. And he has complied in all respects with the stringent conditions of his ESO for five years. He claims to have erectile dysfunction. And the usual actuarial tools used by psychologists to evaluate the risk of future offending place the defendant in the low range.

8. [24]

   Bearing in mind where the onus lies and the standard which attends its discharge, I confess that I remain highly sceptical of the defendant’s claim of erectile dysfunction or impotence due to the effects of his stroke. I accept that his statements to that effect, particularly to the Court appointed experts, Dr Samuels and Dr Furst, are in evidence by way of s 60 Evidence Act. However, there remains a large question about the weight that may properly be attributed to them. These are civil proceedings and the defendant has chosen not to give sworn testimony about this important topic in respect of which he carries at least an evidential onus. Nor has he chosen to lead any expert neurological, or urological, evidence to support his claim. In answering a question about the effect of the “acute left thalamic infarction with no stenosis of the inter cranial or extra cranial vessels” and its impact on the defendant’s risk of committing a further serious sex offence, Dr Furst (Exhibit C; page 18) pointed out that the defendant made a reasonable post-stroke recovery. He considered “the current impact” as mild involving minor speech and cognitive deficits. Although he did not specifically refer to the claims of erectile dysfunction, Dr Furst did express the opinion that the stroke did not have a significant bearing on the risk. Finally, as Dr Samuel pointed out (Exhibit B [430]), accepting the defendant’s claim at face value “does not preclude other types of sexual offending”.

9. [25]

   Dr Samuel accepted that if the defendant’s claim of diminished interest in sex and decreased sexual fantasisation directed towards young females is accepted, “this may mean that his risk has lessened”. At the same time, he regarded the mild cognitive deficit as potentially contributing to impulsivity or disinhibition which may add to it.

10. [26]

    I repeat the defendant does not carry any persuasive onus of proof, but these factors lead me to attribute little or no weight to the defendant’s claims in this regard.

11. [27]

    There is no doubt, as the defendant submits that the actuarial and other structured psychological tools generally employed for the professional assessment of risk place him in the lowest categories of risk (see Mr Samuel Ardasinski’s reports of 14 August 2020 and 20 November 2020). But Dr Samuels points out that statistical risk assessment tools do not accurately assess the defendant’s level of risk. Dr Samuels states the defendant “certainly is not the prototypical sex offender” (Exhibit B [405]). The usual psychological tools “are not necessarily calibrated for someone who has offended within a closed community”. To my mind, the more relevant considerations include his personality disorder with marked narcissistic features involving a lack of empathy, and grandiosity; and his hebephilia, which I acknowledge Dr Samuels believes is not a well-substantiated diagnosis ([410]).

12. [28]

    Dr Furst is also of the opinion that “standardised risk assessment tools,” are not appropriate, adequate or specific in relation to assessing the risk of the defendant’s reoffending in a sexual manner (Exhibit C page 13). Rather Dr Furst refers to:

13. [29]

    I was very impressed by Dr Furst’s analysis of what he referred to as “the psychological dynamics of cults in a group dynamic and hierarchical sense” (Exhibit C; pages 14 to 16). The aspect of sexual entitlement of the cult leader seems to be a characteristic of these “religious” communities that operate outside the teachings and control of the mainstream, major religions.

14. [30]

    Dr Samuels said (Exhibit B [396]):

15. [31]

    Dr Samuels summed up his own views in this way (at Exhibit B [407] and [408]):

16. [32]

    Dr Samuels regarded the question of the defendant’s accommodation as “a very critical issue” (Exhibit B at [419]). He considered that the defendant should only be permitted to return to Cambewarra under “very strict conditions in regard to whom else is allowed on the property and certainly no under-aged females should be living there or visiting” the defendant.

17. [33]

    The affidavit of Community Corrections Officer, Amanda Carden, a Unit Leader in the ESO team, affirmed on 9 November 2020 is to the effect that the defendant had a high volume of social media use including contact with females of young appearance. When questioned about these matters, he denied being friends with the females saying “they are just friends of friends”. However, the evidence does not positively establish that these apparently young women are under the age of 18.

18. [34]

    Det. Snr. Constable Aleshia Murphy, who at times worked with the Extended Supervision Team, also said that the large volume of the defendant’s social media communication made it “virtually impossible to keep on top of” (Affidavit [32]). She said that the defendant expressed an interest in contacting the daughter of an adult woman, “now that she is 17” (Affidavit [40]). On 27 July 2017, he was found to have engaged in an “extensive message thread with a female user by the name of ‘Jocelyne Pocdol’”. I was taken through printouts of some of this material during the hearing. Overall, I could not be satisfied that she was under the age of 17. Much of the content of the material suggested that she must be a young woman of some maturity. I accept from her photographs, which may have been photoshopped to a degree, that she was of very youthful appearance.

19. [35]

    On 27 July 2017, DSC Murphy obtained information which suggested that the defendant was in contact with a female under the age of 17 years. Enquiries identified the person as a “teenage singer” of 16 years of age. It transpired however that the messages written in her name in response to the defendant were written by her manager, an adult male. The more likely inference is that the defendant did not know that. Probably, he believed he was communicating with the singer herself. Given the true state of affairs he was not in fact in breach of the ESO. But the episode demonstrates an ongoing interest in under-age females.

20. [36]

    Of more significant concern is the evidence regarding PP, a young New Zealand woman of Philippine ethnicity. I will not detail all of the evidence read in regard to the matter, but I infer that she was a religious young woman who must have been in contact with at least the defendant’s third wife for a period of time before attaining her majority. There is no evidence of any direct contact between the defendant and PP while she was a minor in contravention of his ESO and I put any natural suspicion in this regard to one side.

21. [37]

    PP’s parents were apparently unaware of these communications. According to her affidavit of 11 March 2021, PP’s mother first learned of her daughter’s desire to move to Australia in about October 2019 after PP had finished school, and after she had attained the age of 18. Her mother was shocked. PP explained “she wanted to go study over there and pray in the community” (Affidavit [20]). I infer the “community” is Cambewarra. She mentioned a “religious friend”, Mara Wang. Her mother refused to agree to her proposal and instructed her “to block that Mara Wang lady” (Affidavit [25]). One-week later Mara Wang visited the family home. To PP’s mother she appeared to be a woman of about 40 years of age. Ms Wang explained that she was there to tell PP’s parents that she was prepared to help PP move to Australia to study. Mara Wang mentioned the defendant’s third wife by name and said that she was very generous and was willing to help PP. PP’s mother continued to steadfastly refuse to agree to her daughter moving to Australia. Ms Wang became angry. PP’s mother refused to allow Ms Wang to take PP out to lunch. PP went to Ms Wang’s car and sat there speaking to her for about 10 minutes before Ms Wang left.

22. [38]

    On 27 November 2019, PP went missing. At about 5 pm that day PP’s father received a text message from an Australian number. It was from PP who stated she was in Australia and was living with the defendant’s third wife. It transpired that PP had left for Australia on a flight which had departed at 11 am that day. All of these arrangements, which must have involved at least the defendant’s third wife, were made behind PP’s mother’s back. PP keeps in touch with her mother by Facebook but refuses to answer her telephone calls. PP’s mother recalled an occasion when PP posted a letter to the defendant’s third wife, but she did not say whether this was before or after PP turned 18 in April 2019. In December 2019, PP’s mother received a letter from the defendant’s third wife enclosing, amongst other things, a photograph of her and her husband. For a period of time PP’s mother became friends with the defendant’s third wife on social media to obtain news of her daughter. PP’s youngest sister has “posted comments publicly on the Facebook page of the defendant’s third wife”.

23. [39]

    In her letter to PP’s mother attached to her affidavit, the defendant’s third wife refers to the defendant’s convictions. She asserts that he is being persecuted by the State. She says the defendant was falsely imprisoned and compares him to St John the Baptist, among others. She states, “The government simply wishes to stop God’s word reaching the people. We are in the process of overturning my husband’s conviction”. She also states:

24. [40]

    Detective Sergeant Michael Krawczyk is an officer attached to the Sydney City Police Area Command. He swore an affidavit on 16 November 2020. He responded to a police radio message at about 12:51 p.m. on 2 December 2019. An informant believed a distressed child was in the company of the defendant and his third wife at their Sydney residence. The officer had contact with DSC Murphy who was then with the ESO team who informed her colleague that it was a condition of the ESO that the defendant was not to be in the company of any female under the age of 18. Other police were in attendance when Det Sgt Krawczyk arrived. They were speaking with PP. To Det Sgt Krawczyk she appeared child-like and was dressed in a white dress with a red robe. She was grasping a child’s toy. The defendant and his third wife appeared at the door in an agitated state. They became quite argumentative. Police explained that they were there to check the welfare of PP. Det Sgt Krawczyk formed the impression that PP was dressed like an early teenager and appeared to have the mannerisms of a child. However, one of his colleagues, Constable Parathan informed him that he had sighted PP’s passport which confirmed she was over the age of 18. The passport was apparently under the control of the defendant’s third wife within a locked cabinet Det Sgt Krawczyk was satisfied that PP was not in harm’s way and that the defendant had not breached the order.

25. [41]

    Const. Parathan was one of the first police officers to respond to the report. In his affidavit affirmed on 18 November 2020, he said he attended the defendant’s residence. He was invited in and observed the defendant and other persons he names who from other evidence read are adherents of the defendant and residents of Cambewarra. He was introduced to PP. He formed the impression that she was a young girl in her early teenage years, holding a large doll. She said that the others were friends and that she had met the defendant’s third wife on Facebook, “for three years”. The officer asked for identification and the defendant’s wife produced the passport. He was able to have a private conversation with PP during which she confirmed that she knew the defendant’s third wife from Facebook and that they had been friends for 3 years. She did not say when she first had contact with the defendant.

26. [42]

    There is no reliable evidence that the defendant had any direct contact with PP while she was a child. And this body of evidence does not establish any breach of the defendant’s ESO. But nor is it tendered for that purpose. I accept the State’s argument, in the light of the opinion of Dr Samuels in particular, that the evidence establishes an ongoing interest on the part of the defendant, and perhaps his supporters, to recruit young women to the cult. Apparently, PP wishes to study childcare at TAFE. I interpolate that the remaining members of the cult, according to the defendant’s third wife’s letter to PP’s parents, are largely over the age of 60. However, given what apparently experienced police officers have said about PP’s appearance, the evidence, taken with the other factors I have referred to, suggests the defendant has an ongoing interest in recruiting young women which in the opinion of the experts, is a factor contributing to his ongoing risk of further offending.

27. [43]

    In her affidavit of 30 November 2020 Kelli Grabham, a senior officer in the Extended Supervision Order Team, states that there are ongoing concerns amongst the team about the defendant’s response to supervision. On an inspection on 5 December 2019, the sum of $3,500 in cash, apparently donations, was located, as was a quantity of female underwear within the defendant’s bedroom. He initially seemed to dissemble by stating it was his wife’s underwear. However, when pressed he identified it as belonging to PP who stayed at the apartment from time to time.

28. [44]

    During an inspection on 8 March 2020, PP was located asleep on a sofa bed in the lounge room. On other visits it has been made apparent that the defendant maintains his innocence, declines to accept responsibility for his offending and spoke of a High Court challenge to his conviction.

29. [45]

    Ms Grabham conducted an inspection of the Cambewarra property on 16 November 2020. Most residents were willing to engage in conversation with her. Young people were found to be residing at the property including a male aged 16, and a girl of 16 years of age apparently residing in another residence at the property. Her family had resided at the property for 20 years. Apparently, school friends did not visit.

30. [46]

    During the inspection, Ms Grabham attended the residence occupied by the defendant’s third wife, her 16-year-old daughter and PP. The defendant’s third wife’s two younger sons aged 11 and 14 also lived there.

31. [47]

    Obviously given his posture of a falsely-accused and wrongly imprisoned innocent man, the defendant has been resistant to interventions to address his perceived criminogenic needs. This and his continued “work” as a seer and prophet have caused concern about his risk of further offending amongst the officers responsible for his supervision. I accept Dr Furst’s opinion that the defendant’s continuation as a cult leader is a factor contributing to the risk of further serious offending if not kept under supervision. It is impossible, however, to prevent him from proselytising or practising his religion, at least so far as it does not harm others.

32. [48]

    Finally, I remain sceptical about the defendant’s disavowal of the current applicability of the “queens and princesses” doctrine. My scepticism is based on reasons similar to those I have expressed in relation to my scepticism about his claimed erectile dysfunction. I note the defendant first made this claim to Ms Rubio as recorded in her report of 12 March 2014 (see Harrison J, [103]). Ms Rubio, perhaps wryly, observed that notwithstanding the apparent change “there remains a concern … considering that [the defendant’s] religious beliefs can be altered at any given time”. As I have already observed, the defendant chose not to give evidence and I am unable to afford his statements in this regard much weight.

33. [49]

    In my judgment the defendant’s risk profile has changed little since he has been subject to the ESO imposed by Harrison J, with the single exception of the consideration that he is now five years older – not an irrelevant matter. It is his idiosyncratic religious views and his status as a cult leader that are the largest contributing factors to his risk profile if not kept under supervision. As Harrison J observed (at [173], I repeat):

34. [50]

    I repeat that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious (sex) offence if not kept under an ESO.

Should an order be made?

1. [51]

   I acknowledge that the power to impose an ESO, as I have already said, is discretionary. In making this determination, I am required to consider the safety of the community as the paramount consideration. Moreover, I am required to have regard to the mandatory considerations set out in s 9(3). So far as those matters are concerned, I have set out my views of the opinions of the court appointed experts as required by s 9(3)(b). I have also referred in general terms to the opinions of Ms Rubio and Mr Ardasinski for the purpose of 9(3)(c).

2. [52]

   The Court appointed experts before Harrison J were Dr Jeremy O’Dea and Mr Patrick Sheehan. His Honour summarised their views at some length in his judgment. Given the defendant’s claimed visions and apparitions, Dr O’Dea was not prepared to entirely rule out a psychiatric diagnosis. He was of the view that the risk of further sex offending “in the long term” was “significant and appropriate for specific community management”. Mr Sheehan expressed the view that the defendant “in the absence of supervision… would present a moderate to high risk of committing further serious sexual offences”. He regarded the risk was chronic until the advancement of years “moderates his personality disorder and sexual motivation”.

3. [53]

   Reports were also provided by Dr Christopher Lenning, psychologist, and Dr Andrew Ellis, psychiatrist. Both thought there was a high likelihood of further serious sexual offending in the absence of supervision. Dr Ellis thought this was especially so if the defendant returned to a closed community without supervision.

4. [54]

   He was also assessed by Ms Rochelle Pateman, psychologist, whose report is dated 12 May 2020 following an interview on 23 April 2020. She assessed the defendant’s dynamic risk factors as falling in the moderate range. She expressed the view, with which I agree, that his risk has remained the same since the imposition of the ESO. The only apparent mitigation being his increased age.

5. [55]

   I have referred already to the results of statistical and other assessment tools in the course of this judgment as referred to s 9(3)(d). It is the unanimous opinion of the various experts that the statistical assessment tools do not provide a reliable guide to the defendant’s risk profile.

6. [56]

   The Risk Management report prepared by Corrective Services New South Wales (“CSNSW”) and countersigned by Ms Grabham dated 13 November 2020 is to the effect that the defendant can be managed in the community subject to a continuation of conditions like those to which he has been subject, including electronic monitoring and the related provision of a schedule of movements. I have also had regard to a second affidavit of Ms Grabham, affirmed on 19 March 2021, detailing the results of further investigations carried out at Cambewarra on 17 March 2021, mainly trialling the efficacy of the electronic monitoring equipment at Cambewarra. There is also an affidavit from Sara Mosher, affirmed on 19 March 2021. Ms Mosher is an electronic monitoring officer employed by CSNSW who participated in the testing of the equipment at the control end of the trial. The evidence of both is that the electronic monitoring equipment works effectively at Cambewarra. I interpolate Ms Grabham had other reservations about Cambewarra’s suitability as a residence, in essence related to its fitness for habitation.

7. [57]

   For the purpose of s 9(3)(e), I record, as Harrison J did, that somewhat belatedly during his time in custody, the defendant participated in the high intensity sex offender treatment program then known as CUBIT. Given his staunch belief in his own innocence, his engagement was, according to Mr Ardasinski, “superficial”. He initially engaged in a community-based maintenance program following his release, but withdrew on 3 August 2016. An offer to engage with another CSNSW psychologist made in December 2016 was declined.

8. [58]

   As I have said, the defendant has complied in all respects with the conditions of his ESO, but his continued belief in his status as a seer and prophet have raised concerns about the enthusiasm of his compliance; no real progress has been made in reducing his apparently intractable risk factors. I have detailed some of the concern of the officers responsible for his supervision already during my evaluation of the question of unacceptable risk. Those comments also apply for the purpose of s 9(3)(f). I should interpolate that notwithstanding these concerns, it is likely that the defendant will comply with a further ESO if imposed. There appear no other option for management in the community at a protective level than under an ESO. There is no evidence concerning any obligations owed by the defendant under the Child Protection Legislation. Ms Pateman considers that regime inadequate to address the risk posed by the defendant.

9. [59]

   The defendant has no criminal record other than his sex offending, the subject of the present application.

10. [60]

    For the purpose of s 9(3)(h1), I record that Harrison J fully analysed the sentencing judgments of each of Judge Williams for the 2005 convictions and Judge Berman SC for the 2007 convictions. I will not cover the same ground. Judge Williams referred to the offending as “an inexcusable and gross breach of trust” which could not possibly be explained by religious beliefs. His Honour assessed the risk of re-offending as significant.

11. [61]

    When sentencing the defendant for the 2007 convictions, Judge Berman found the offending “was part of a planned criminal activity”. It is not insignificant that his Honour was satisfied that the defendant did not genuinely believe that the Virgin Mary sanctioned the defendant having sex with the complainant. His Honour was of the view that the defendant’s statements in this regard were a deliberate manipulation of the complainant’s beliefs as a means of satisfying his desire to have sex with her when she was as young as 14 years of age.

12. [62]

    I also have regard for this purpose to the evidence I have set out in relation to the defendant’s relationship with, and the cultivation of, PP.

13. [63]

    Having regard to these matters, I am of the view that the defendant should be subject to a further ESO. To my mind, the offender’s age and his claimed desire to live a quiet life in the future are not of themselves sufficiently prophylactic to ensure community safety. In my view, the community is not obliged to accept the risk of further serious offending that the defendant poses without appropriate intervention by the State.

14. [64]

    I should also say that I have received as Exhibit A, a Victim’s Statement under s 21A. The victim continues to reside on the South Coast and has concern about the defendant not being under an ESO. I should add now that she would prefer it if the defendant was precluded from entering the City of Shoalhaven. She is concerned for other possible victims should he be allowed complete freedom to resume his position at Cambewarra. She believes electronic monitoring is necessary.

15. [65]

    I propose to impose an ESO of 3 years duration. I acknowledge that the State seeks an order for 5 years and that this is expressly supported by Dr Furst. Dr Samuels has suggested the order should be of 2 years duration on the basis that by then the defendant’s age alone will, by then, have reduced the risk to an acceptable level.

16. [66]

    While I am of the view that the defendant’s narcissistic belief system is likely to be more or less intractable, it does seem that the further passage of time will reduce the probability of the materialisation of the risk he poses to a level which the community can accept. For this reason I have decided that 3 years is the appropriate duration of the ESO.

Conditions

1. [67]

   The State seeks an extensive suite of conditions. They are not identical to those imposed by Harrison J. In some respects, they have been amended to take account of the consideration that having regard to the evidence of Ms Grabham and Ms Mosher, the State is now prepared to countenance the prospect of defendant’s return to reside at Cambewarra. I acknowledge that the victim who made a statement is against that prospect. However, it seems to me given the stringency of the conditions which are proposed including electronic monitoring, the risk I have found the defendant poses can be adequately managed even if he is at Cambewarra.

2. [68]

   From the defendant’s point of view, he requests that I order affirmatively that he be permitted to reside at Cambewarra and make one not insignificant amendment to the conditions according to which he may reside there. I have given this argument very close consideration. It seems to me, however, given the consideration that at least from time to time it seems that underage females may be on the premises that the position ought to be subject to the Department’s approval. I say this because residence at Cambewarra is identified by the experts as a significant risk factor. The defendant’s community may be much diminished, and the majority of resident adherents may be elderly, at the same time, the resumption of residence at Cambewarra is a factor which will return the defendant to the centre of what remains of the cult physically as well as figuratively. This transition will need to be controlled and monitored. Obviously, controls may be eased if the defendant demonstrates pro-social behaviour in that setting.

3. [69]

   The risk which the conditions need to manage is the risk of further serious sex offending. It is not appropriate that the State monitor the defendant’s religious observance per se.

4. [70]

   As there was little issue about other conditions at the hearing, I will impose the conditions contained in the Schedule to the Amended Summons filed in Court on 23 March 2021 subject to the following changes. I would amend Condition 18 to read as follows:

5. [71]

   Condition 49 is the condition concerning the defendant residing at Cambewarra. I should say that conditions as to residence are common in ESOs. Clearly the suitability of a person’s accommodation is always basic to management of a risk of further offending. It is for this reason that I am of the view that his residence at Cambewarra is appropriately subject to Departmental approval. Of the sub-paragraphs to Condition 49, I would delete sub-paragraph (d) and substitute:

6. [72]

   Sub-paragraph (g) prohibits the defendant from visiting another dwelling at Cambewarra without the prior approval of a DSO. The community, according to the aerial photograph with which I have been provided, consists of a number of cottages, cabins or caravans located in close proximity of one to another. There is also a chapel for the conduct of religious services. In my judgment, in what is likely to be a reasonably close-knit community, it is just impracticable to impose such a condition given the relative spontaneity of community life. It should be borne in mind that the defendant has complied in all respects with the terms of the existing ESO, however much under sufferance. It also needs to be borne in mind that breach of any condition is a serious criminal offence created by s 12 carrying a maximum penalty of imprisonment for 5 years. While I am of the view that s 12 does not create a strict liability offence, the risk of unintended breach of sub-paragraph (g) must be high. Given the other conditions which guard against the risk that the defendant would have unsupervised access to females under the age of 18, I am of the view that sub-paragraph (g) is an infringement of the defendant’s liberty, which cannot be justified by the need to control the risk.

7. [73]

   My orders are:

   1. (1)

      Pursuant to ss. 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), that the defendant be the subject of an extended supervision order (“the extended supervision order”) for a period of three years commencing from midnight on 7 April 2021.

   2. (2)

      Pursuant to section 11 of the Act, for the period of the extended supervision order, the defendant is to comply with the conditions set out in the Schedule to these orders.