Costellia-Kamm v R

1. [1]

   ADAMSON J: I have had the benefit of reading the reasons of Lonergan J in draft. Her Honour’s reasons accord with my reasons for agreeing with the orders of the Court made on 1 June 2022 that the applicant’s bail application be refused.

2. [2]

   BELLEW J: I have had the advantage of reading the judgment of Lonergan J in draft.

3. [3]

   For the reasons set out in her Honour’s judgment, I joined in the making of the orders on 1 June 2022.

4. [4]

   LONERGAN J: On 1 June 2022, the Court dismissed a release application by the applicant, William Costellia-Kamm, and indicated that it would give its reasons in due course.

5. [5]

   These are my reasons for joining in that decision.

6. [6]

   The applicant is 72 years of age. On 15 November 2021, he was arrested and charged with four offences of failing to comply with an Extended Supervision Order (ESO) contrary to s 12 of the Crimes (High Risk Offenders) Act 2006 (NSW). Offences of that type attract a maximum potential penalty of 5 years’ imprisonment and/or 50 penalty units.

7. [7]

   The offences involved breaches of the conditions of his ESO that he not use any form of social networking service either by himself or through any third party. The offences are said to have taken place in March, April, May and June 2020. The ESO was made initially in 2016, and extended in 2021, in the context of the applicant being a person found to pose an unacceptable risk of committing a serious sex offence if not kept under supervision under an ESO, given his criminal history of “highly manipulative, opportunistic and cynical predation upon underage females for his sexual gratification by grooming and deception” [1] .

8. [8]

   The applicant has remained in custody since the date of his arrest, a period of 7 months.

9. [9]

   The applicant made an application for release in the Central Local Court on 17 November 2021, which was refused. The applicant made a further application to the Supreme Court which was heard by Rothman J on 3 February 2022. That application, too, was refused, his Honour finding, amongst other things, that the applicant had failed to show cause as to why his ongoing detention was not justified: s 4(1) and s16B(1)(i) of the Bail Act 2013 (NSW), and that the offences indicated, if proved, that the applicant is involved in continuing conduct of the kind that gave rise to the index offences and the making of the ESO.

10. [10]

    The matter is next before the Court on 29 June 2022. The charges have not yet been listed for hearing, although evidence tendered suggests that availability of the officer in charge would dictate that it is unlikely the charges would be heard before September 2022.

11. [11]

    This timeframe means that it is inevitable, if not released, that the applicant would remain on remand for at least a further three months, and potentially spend up to a total of one year waiting for his charges to be heard.

This application

1. [12]

   This hearing is not in the nature of an appeal from the decision of Rothman J, but is to be heard and determined afresh: R v Kugor [2015] NSWCCA 14; Obeid v R (No 2) [2016] NSWCCA 321 (“Obeid”). The Court is not however precluded from having regard to the findings made by the primary judge: Obeid at [6].

Relevant background and the charges for breaches of the ESO

1. [13]

   In 2005, the applicant was convicted of sexual offending against a 15 year old girl in 1993, and in 2007, was convicted of further sexual offences against another girl who was then 14 or 15 years old in 1994 and 1995.

2. [14]

   When Harrison J made the ESO in 2016, he made the following observations regarding the applicant and his mode of offending:

3. [15]

   On this basis, one of the conditions his Honour found to be appropriate was Condition 3: “The defendant must follow all reasonable directions by his DSO (Departmental Supervising Officer) or any other person supervising him”.

4. [16]

   On 24 July 2017, the following direction was issued to the applicant:

5. [17]

   On 27 July 2021, the applicant’s iPad was seized by his DSO, and subjected to Cellebrite extraction which showed that Facebook has been accessed on certain dates in 2020. Telephone records indicated that the applicant’s wife’s Facebook account was used via the iPad whilst the applicant’s wife was in Nowra and the applicant was in Sydney. Both denied using the applicant’s iPad to access the applicant’s wife’s Facebook account on these occasions.

6. [18]

   The DSO was able to gain access and review the various Facebook messages that gave rise to the four charged offences.

7. [19]

   In May 2020, a message was sent from a Facebook profile name, Guadalupe Rivera, to the applicant's wife's Facebook Messenger account which read as follows "hi, I sent a mail to William 5 days ago through your email".

8. [20]

   On 22 May 2020, a message was sent from the applicant's wife's Facebook account to Rivera that read as follows "Hi Dear Guada He got it He said he will reply tomorrow". Rivera replied "hello, I thought there is a parole checking his email?". The applicant's wife's account replied "Yes He will dictate it threw me". Rivera replied "Oh okay" and then the applicant's wife's account replied "I will message you on the other secure site xxxx".

9. [21]

   On 15 June 2020, Rivera sent a message to the applicant's wife's Facebook Messenger that read "checkyour email mommy xxxx". The applicant's wife's account replied to this message saying "Got it darling Read it to William and sent to him minus the names He will answer soon So happy you are happy darling We wait and pray as Mummy did on earth and all will be fulfilled xxxx". Later on the same day, the applicant's wife's account sent Rivera a further message stating "Checkyour email", as well as a further message stating "Got the reply email Guada Read it to William".

10. [22]

    The police allege that the applicant accessed Facebook through his wife to contact Rivera on his behalf. Rivera's identity has not yet been confirmed by police.

11. [23]

    On 27 March 2020, a video of a pot on a stove and a photo of an AGL electronic receipt was sent from the applicant's wife's Facebook messenger account to a Pearl Paz's messenger account with a message that read "Sorry that was a mistake the last photo But show mum the videos There were the prawn chips". Paz responded, "Hahaha I just showed her Wow how does it taste like Good?". The applicant's wife's Facebook account responds, "Yeah real good The house is all Smokey".

12. [24]

    From a review of the applicant's wife's Facebook account, the police allege that there is evidence to suggest that Paz is Pearl Angelique Paz born on 18 April 2001 who came from New Zealand to live with the applicant's wife at Nowra. She is said to refer to the applicant's wife as “mum”.

13. [25]

    Police allege that the above message was from the applicant and that he had accessed his wife's Facebook account to send the message to Paz, who was actually with the applicant's wife at the time the message was sent.

14. [26]

    On 3 April 2020, the applicant's wife's Facebook account sent a photograph of a handwritten letter to Paz's Facebook messenger that read in part "My beloved daughter Pearl of my Sacred Heart" and "I have chosen you as one of the 12 wives of Little Abraham who will soon be Peter II of Holy Mother Church. You are very special and will soon receive your first child to prepare you for your role as mother and Queen".

15. [27]

    The police allege that this letter was written by the applicant and that he accessed Facebook to have direct contact with Paz.

16. [28]

    On 23 June 2020, the applicant's wife's Facebook account sent the following message to Paz through Facebook Messenger "To my darling Pearl. This is what I needed as the thought of my offences the last months brings me so low. But this has answered my prayer. Thank you darling".

17. [29]

    The police obtained the applicant's wife's telephone records which the police assert revealed that she was in Nowra on the day of this message and the applicant was in Sydney.

Show Cause

1. [30]

   It was common ground that the offences are caught by s 16B(1)(i) of the Bail Act and so the applicant must first show cause as to why his ongoing detention is not justified.

2. [31]

   The applicant put forward four arguments to show cause.

3. [32]

   The first argument was lack of strength of the prosecution case. There are significant question marks over whether the applicant had fingerprint access or any other access to the relevant Facebook account, whether he actually sent any of the messages or whether the handwritten letter the subject of sequence 3 was prepared or sent by him. The suppositions and assumptions regarding the location of mobile phones being used as proof that it was the applicant not his wife who carried out the messaging and accessing are significantly flawed. The young woman the Crown has identified as the recipient of the messages is over 18, so it cannot be said he is messaging her to groom her for underage sexual activity.

4. [33]

   Second, there will be a delay, with no allocated hearing date, and a real issue as to whether a full-time custodial sentence will be imposed and even if there was, there is a risk that any such sentence will be exceeded by the time spent on remand.

5. [34]

   Third, the applicant is 72 years old and has been in isolation since his arrest. There are particular risks associated with COVID-19 and its affect upon his health should he contract it, and there have been arduous and repeated lockdowns associated with pandemic management that have added to his hardship. He also has other miscellaneous health problems.

6. [35]

   Fourth, the bail proposal is a strict one including scheduling of movements and electronic monitoring. He has complied with the numerous conditions imposed on him over many years.

7. [36]

   The Crown submitted that these matters taken together are insufficient to show cause. The Crown disputed the arguments raised by the applicant asserting weaknesses in the Crown case. The delay is not inordinate, and the charges may all be dealt with by the end of September. Further, the current offences are not mere “technical breaches” of the ESO. Rather, as observed by Rothman J, in his judgment refusing bail in February 2022 [3] , they involve breaches that comprise the type of cult-like references and professions of “specialness” to a young woman that gave rise to the original sexual offences.

8. [37]

   As observed by Simpson JA in R v Gountounas [2018] NSWCCA 40 at [2], a lengthy delay before trial should be given significant weight and in the context of this bail application I afford that factor significant weight. That factor, viewed in combination with the other matters raised by the applicant, are, in my view, sufficient to show cause.

Bail concerns

1. [38]

   Cause having been shown, the Court is then required to assess any bail concerns, taking into account the matters listed in s 18 of the Bail Act. If the Court finds that any of the bail concerns constitute an unacceptable risk, s 19 of the Act requires the Court to refuse bail: Trinh v R [2016] NSWCCA 110 at [60] per Davies J, McCallum J (as she then was) and Basten JA agreeing.

2. [39]

   The relevant risks are set out in s 17 of the Bail Act and comprise the risk that if released, the applicant will fail to appear, will commit a serious offence, will endanger the safety of victims, individuals or the community or interfere with witnesses or evidence.

3. [40]

   Section 18 of the Bail Act sets out the matters that must be taken into account.

4. [41]

   The applicant submitted that he has close family ties to NSW, the offences fall towards the lower end of the spectrum of offences of this type, the prosecution case is not strong, he has no history of violence (presumably on the basis that sexual offences forced upon children do not fall within that description), and there has been no offending whilst on bail. There have been no failures to appear, and this is the first “incident” in his 7 years under an ESO. There are no criminal associations identified, and significantly, the applicant has been in custody for 7 months, in circumstances where a full-time custodial penalty is not inevitable, and even if one is imposed, it may well be equal to or less than the time on remand, even if convicted of the offending. His medical concerns and the need to participate in preparation of defence of the charges provide additional reasons to be at liberty. Concern was expressed that the practical difficulties in accessing the brief and giving instructions via iPad are real and problematic. Finally, it was submitted that the present ESO conditions in place can, and do, address any bail concerns, and the strong bail proposal adds to these conditions.

The applicant presents an unacceptable risk

1. [42]

   It is true that no release is entirely without risk, but in the applicant’s case, the risks that he will commit another serious offence or interfere with witnesses or evidence are palpable, real and unacceptable.

2. [43]

   The Crown case is, in my view, a strong one, and an illustration of the fact that the applicant, despite being subject to ESO conditions, is prepared to engage in subterfuge in breach of those conditions. The proposal that he live with his wife, the person through whom it is alleged he committed the present offences, is inappropriate and raises an unacceptable risk that there will be an interference with witnesses or evidence, which cannot be addressed adequately by any bail conditions.

3. [44]

   Given the applicant’s history of manipulation and lies to achieve his own aggrandisement and gratification and to gain access to vulnerable children, I have no confidence that he would comply with bail conditions imposed.