State of NSW v Costellia-Kamm

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.

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.

In considering the risks posed by the defendant, Harrison J said at [90]:

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]:

At [173], his Honour continued:

At [175], his Honour said:

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.

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]:

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: