Kamm v State of New South Wales (No 4)

[2017] NSWCA 189

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Kamm v State of New South Wales (No 4) [2017] NSWCA 189

Hearing dates:

25 May 2017

Decision date:

01 August 2017

Before:

Bathurst CJ at [1];
Beazley P at [3];
Payne JA at [72]

Decision:

(1) Under s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) extend time to bring the appeal to 7 April 2016;

 

(2) Grant leave to appeal under s 22(3);

 

(3)   Direct that the notice of appeal filed on 31 March 2017 stand as the Notice of Appeal;

 (4)   Dismiss the appeal.

Catchwords:

CONSTITUTIONAL LAW – separation of powers – Kable principle – whether the Crimes (High Risk Offenders) Act 2006 (NSW) undermines the institutional integrity of the New South Wales Supreme Court – whether legislation distinguishable from that considered in Fardon v Attorney-General (Qld) – whether legislation distinguishable from that considered in Wainohu v New South Wales – whether objectives of the Crimes (High Risk Offenders) Act 2006 (NSW) are penal or punitive

 

STATUTORY INTERPRETATION – determination that a person a high risk sex offender pursuant to s 5B – discretion to make extended supervision order pursuant to s 5B

  ADMINISTRATIVE LAW – whether there was denial of procedural fairness by primary judge – whether primary judge failed to give adequate reasons – whether decision of primary judge was void for legal unreasonableness – meaning of legal unreasonableness

Legislation Cited:

Crimes (Criminal Organisations Control) Act 2009 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD)
Judiciary Act 1903 (Cth)
Serious and Organised Crime (Control) Act 2008 (SA)
Supreme Court Act 1970 (NSW)

Cases Cited:

Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44
Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
House v The King (1936) 55 CLR 499
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Kamm v State of New South Wales (No 2) [2017] NSWCA 14
Kamm v State of New South Wales (No 3) [2017] NSWCA 68
Kamm v State of New South Wales [2016] NSWCA 339
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Mahon v Air New Zealand Ltd [1984] AC 808; [1983] UKPC 29
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR 241 CLR 594; [2011] HCA 1
NSW v Thomas (Final) [2011] NSWSC 307
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Kamm [2015] NSWSC 1492
State of New South Wales v Noack [2017] NSWCA 144
State of New South Wales v Richardson (No 2) (2011) 210 A Crim R 220; [2011] NSWSC 276
State of New South Wales v Thomas (Final) [2011] NSWSC 307
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Category:

Principal judgment

Parties:

William Kamm (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
M A Robinson SC / C Waterstreet (Appellant)
D Kell SC / T Phillips (Respondent)

  Solicitors:
Aquila Lawyers (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2016/00032698

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2016] NSWSC 1

Date of Decision:

08 January 2016

Before:

Harrison J

File Number(s):

2014/195850

Headnote

[This headnote is not to be read as part of the judgment]

In 2007 the appellant was convicted of five counts of sexual intercourse with a child above the age of 10 years and under the age of 16 years, in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900 (NSW) and a further count of committing an act of indecency towards the victim, again in circumstances of aggravation, under s 61O(1).

The victim of each offence resided in a religious community established by the appellant, who described himself as a visionary who had been told by God or the Virgin Mary that he was to be the last Pope and claimed to have received visions or visitations from the Virgin Mary.

The appellant was released on parole on 14 November 2014. Since then, the appellant has resided with his wife, at a unit in Sydney. The appellant’s sentence of imprisonment expired on 13 October 2015.

Between 15 October 2015 and 8 January 2016, the appellant was the subject of interim supervision orders made under the Crimes (High Risk Offenders) Act 2006 (NSW) (High Risk Offenders Act). On 8 January 2016, Harrison J ordered that, pursuant to s 5C of the High Risk Offenders Act, the appellant be subject to a high risk offender extended supervision order for a period of 5 years. This order required the appellant to comply with certain conditions.

The appellant did not appeal within 28 days of the date of the order. Accordingly, he did not have a right of appeal pursuant to s 22(3) of the High Risk Offenders Act and required leave to appeal.

The primary issues on the appeal were:

(i)   Whether the High Risk Offenders Act, or the provisions under which the primary judge made orders, undermines or is incompatible with the institutional integrity of the Supreme Court of New South Wales and is thus outside the legislative powers of the New South Wales Parliament;

(ii)   Whether his Honour erred in fact and law in making the extended supervision order.

The Court granted leave to appeal but held, dismissing the appeal:

In relation to (i):

The Court (Bathurst CJ agreeing in the separate reasons of Beazley P and Payne JA):

(1)   The High Risk Offenders Act does not infringe the Kable principle. It does not deny an essential characteristic of a court exercising federal jurisdiction nor attack the institutional integrity of a State court as an independent and impartial tribunal. [1], [2], [3], [40]-[45], [116]

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 applied

(2)   Wainohu v New South Wales is distinguishable from the present case. In particular, the legislation in that case expressly provided that an eligible judge need not give reasons. No such provision is contained in the High Risk Offenders Act and the Court has a duty to give reasons as part of the judicial function. [1], [2], [3], [40]-[45], [138]-[139]

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 distinguished

(3)   The objectives of the High Risk Offenders Act are protective, not punitive. As detention under the Act is for a non-punitive purpose, the Act does not infringe the principle that a court may not detain a citizen in custody otherwise than as a step in the adjudication and punishment of guilt. [1], [2], [3], [54], [147]-[148]

(4)   The High Risk Offenders Act does not enlist the Supreme Court of New South Wales to give effect to executive policy. It is required to act as an independent and impartial tribunal, which is compatible with its role as a repository of federal jurisdiction. [1], [2], [3], [43]-[44], [152]-[152]

Beazley P (Bathurst CJ and Payne JA agreeing):

(5)   The fact that a statute makes provision for matters that might be characterised as executive, as well as matters that might be characterised as judicial, does not mean that the statute or its provisions are necessarily contrary to the Kable principle and invalid, provided the jurisdiction or powers conferred do not undermine the institutional integrity of the court on which they are conferred. [2], [44], [154]

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 applied

In relation to (ii):

The Court (Bathurst CJ agreeing in the separate reasons of Beazley P and Payne JA):

(6)   The High Risk Offenders Act, s 5B does not confer a discretion as to whether to make an order. The primary judge correctly identified the existence of a discretion after finding that the offender was a high risk offender under s 5B. The only implication available from the judgment is that his Honour proceeded to exercise this discretion. [1], [2], [60]-[61], [168]-[176]

(7)   The submission that the primary judge’s decision was void for legal unreasonableness was without merit. [1], [2], [3], [67]-[71], [218]

Beazley P (Bathurst CJ and Payne JA agreeing):

(8)   The standard of legal unreasonableness is not limited to an irrational or bizarre decision, in other words, a decision so unreasonable that no reasonable person could have arrived at it. Other specific errors encompassed by unreasonableness include when the decision-maker, by reference to the scope and purpose of the statute, had committed a particular error in reasoning; had given disproportionate weight to some factor; or reasoned illogically or irrationally. [2], [68]-[70]

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 applied

Payne JA (Bathurst CJ and Beazley P agreeing):

(9)   His Honour did not err in construing the expression “unacceptable risk” and did not fail to take account of the appellant’s circumstances and the adverse effect that a supervision order would have on the appellant. [1], [3], [194]-[196]

(10)   There was no denial of procedural fairness in his Honour stating that the appellant’s behaviour in using the persuasive influence upon vulnerable young girls of fabricated communications with religious identities was a “pretence” in circumstances where he was referring to findings made by the sentencing judge. [1], [3], [202]-[203]

(11)   The submission that the primary judge failed to set out “lawful and proper reasons” was without merit. [1], [3], [212]-[213]

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of Payne JA in draft. For the reasons given by his Honour, I agree with the orders he proposes.

2. I also agree with the additional reasons of Beazley P.

3. BEAZLEY P: I have had the considerable advantage of reading in draft the reasons of Payne JA with which I agree. My reasons may therefore be stated briefly.

4. On 8 January 2016, Harrison J ordered pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW), s 5C (the High Risk Offenders Act) that the appellant be subject to a high risk sex offender extended supervision order for a period of 5 years from the date of the order and that he comply with the conditions imposed by his Honour set out in the Schedule to the order.

5. The appellant did not exercise his right of appeal within 28 days of the date of the order: see s 22 of the High Risk Offenders Act. I agree with Payne JA for the reasons his Honour gives that leave to appeal is therefore required and that leave should be granted.

The issues on the appeal

6. Payne JA, at [90], has set out the grounds of appeal and it is not necessary to repeat them. In essence, the appellant challenged the order of the primary judge on two distinct bases.

7. The first, raised in grounds 1-4 of the notice of appeal, was that the High Risk Offenders Act is not, or the provisions of that Act under which his Honour made the orders are not, validly enacted laws of the New South Wales State Parliament. The appellant contended that the High Risk Offenders Act or the impugned provisions of that Act undermine or are incompatible with the institutional integrity of the Supreme Court of New South Wales and are outside the legislative powers of the State: appeal grounds 1, 2 and 3. The appellant also contended that as the High Risk Offenders Act makes no provision for giving reasons for decision such that the principles stated in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 apply, the Act is invalid: appeal ground 4. I will refer to these issues in combination as “the constitutional issue”.

8. The constitutional issue had not been raised at trial. However, I agree with Payne JA that it is appropriate to allow the argument to be raised for the first time on the appeal. No objection was taken by the State to this course.

9. The second basis of challenge to the order of the primary judge, raised in grounds 5-9 of the notice of appeal, was that his Honour erred in fact and law in making an order under the High Risk Offenders Act.

The legislation

10. Part 1A, Div 1 of the High Risk Offenders Act makes provision for the supervision and detention of high risk sex offenders. Sections 5B and 5C are relevant to the issues raised by the appellant on the appeal. As the precise terms of the sections are important, it is appropriate to set them out in full:

“5B   High risk sex offender

(1)   An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2)   An offender is a high risk sex offender if the offender 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.

(3)   The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.

5C   Extended supervision orders for high risk sex offenders

(1)   The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender.

(2)   An order made under this section is an extended supervision order.

(3)   An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order.”

11. Section 5D, which provides that the Supreme Court, if satisfied that adequate supervision will not be provided by an extended supervision order, may make an order for the detention of the offender, was not in issue on the appeal.

12. Part 2 of the High Risk Offenders Act governs the making of an application for an extended supervision order. Sections 5H, 6 and 13 are relevant to the constitutional issue as argued by the appellant. Section 9 is relevant to the discretionary issue. The effect of these sections is as follows.

13. The State is the only entity that may apply for an extended supervision order against an offender: s 5H. However, it should be noted that either the State or the offender may apply for a variation or revocation of the order pursuant to s 13.

14. Section 6 imposes a number of requirements with respect to the making of an application for an extended supervision order. These include the time at which an application may be made and the documentation that must support the application, being documentation that addresses each of the matters referred to in s 9(3). These include a report from a psychiatrist, psychologist, or medical practitioner that assesses the likelihood of the offender committing a further relevant offence.

15. Section 9(1) provides that the Supreme Court may determine an application for an extended supervision order by making either an extended supervision order or by dismissing the application.

16. Section 9(3) specifies matters to which the Supreme Court must have regard, in addition to any other matter it considers relevant in determining whether or not to make an extended supervision order. The matters to which the court must have regard include the safety of the community: para (a); the results of any assessment made by the psychiatrist, psychologist or medical practitioner: para (c); the offender’s criminal history and any pattern of offending behaviour disclosed by that history: para (h); the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: para (h1).

17. As mentioned above, s 13 provides that the Supreme Court may vary or revoke an extended supervision order on the application of either the State or the offender. Section 13(2) provides that for the purposes of determining whether to make an application, the Commissioner of Corrective Services (the Commissioner) must provide the Attorney General with a report on the offender at intervals of not more than 12 months. Pursuant to s 13(3), the report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate.

18. Part 4 of the Act governs various aspects of proceedings brought under the Act. In particular, s 21 provides that proceedings for an order under the High Risk Offenders Act are civil and, to the extent that the Act does not provide, proceedings are to be conducted in accordance with the law, including rules of evidence, relating to civil proceedings.

19. Part 5 contains a number of miscellaneous provisions which are relevant to the constitutional issue. Pursuant to s 24A, the Attorney General is entitled to act on behalf of the State for the purposes of making an application under the High Risk Offenders Act. Section 25(1) permits the Attorney General to order a person to provide information and documents relating to the behaviour, or physical or mental condition, of any offender. Pursuant to s 25(2), the Attorney General may request the court to provide information and documents it may hold in relation to the behaviour, or physical or mental condition, of any offender.

20. Section 27 provides that the High Risk Offenders Act does not affect the right of any party to proceedings under the Act to appear, either personally or by the party’s legal representative; to call witnesses and give evidence; to cross-examine witnesses; and make submissions to the court on any matter connected with the proceedings.

21. Section 29(1) provides that rules of court may be made under the Supreme Court Act 1970 (NSW) regulating the practice and procedure of the Supreme Court in respect of proceedings under the High Risk Offenders Act. Section 29(2) provides that this section does not limit the rule making powers otherwise conferred by the Supreme Court Act.

22. The High Risk Offenders Act applies in respect of offences committed before the date of assent to the Act in the same way as it applies to offences committed after the date of assent, and also applies in respect of a person serving a sentence of imprisonment that was commenced before the date of assent to the Act: Sch 2, cls 2 and 3.

The Kable principle: institutional integrity of the Supreme Court

Appellant’s submissions

23. The appellant submitted that the High Risk Offenders Act as a whole or the provisions of ss 5B, 13(2) and 21, either undermine or are incompatible with the institutional integrity of the Supreme Court of New South Wales as a court vested with federal jurisdiction pursuant to s 77(iii) of the Constitution and thus outside the legislative powers of the State: see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

24. The appellant submitted that under the High Risk Offenders Act, justices of the Supreme Court make determinations and orders which in reality are an extension of the executive work of the Attorney General, who commences and prosecutes the proceedings and then maintains a watching brief on each person against whom an order is made: see ss 13(2), 24A and 25. The appellant contended, in particular, that the fact that pursuant to s 13(2), the Attorney General was “personally involved” on an annual basis in the ongoing status of the person subject of the order was indicative of the executive nature of the powers conferred on the Supreme Court by the High Risk Offenders Act.

23. The appellant acknowledged that the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Qld Act), relating to the continuing detention of serious sex offenders, which is relevantly similar but not identical to the High Risk Offenders Act, had been upheld in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46. The appellant relied upon the differences between the Qld Act and the High Risk Offenders Act to submit that this Court was not bound by that decision. Alternatively, he submitted that Fardon was wrong. The last point can be dealt with briefly. Even if the decision is wrong, a submission with which I do not agree, that is not a matter for this Court. The authority to resile from or vary one of its own decisions resides in the High Court alone: Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 at [17] per Gaudron, McHugh, Gummow and Hayne JJ.

Legal principles

26. The appellant’s constitutional challenge was essentially based upon what is usually identified as the Kable principle. In Fardon Gleeson CJ, at [15], explained the principle in the following terms:

“The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.”

27. In Wainohu French CJ and Kiefel J summarised the effect of the Kable principle as follows:

“44.   Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term ‘institutional integrity’, applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court’s independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution.

…

46.   … Application of the Kable principle has the result that the State legislatures cannot validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court; which would authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity; or which would confer upon any court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction.

47.   The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person's role as a judge. Where this is the case, the potential for incompatibility of the non-judicial function is brought more sharply into focus. The question which then arises is whether the performance of that function would impair the defining characteristics of that court. It is that question with which the Court is concerned in this case.” (citations omitted)

28. The observations made by the High Court in Fardon and Wainohu were each made in specific contexts that differed from each other, an understanding of which is relevant to the issues raised on the appeal in this matter.

29. In Fardon, the Court was concerned with the Qld Act. Gleeson CJ, at [19], described that Act in terms which are appropriate to set out in full, given the similarity the relevant provisions bear to the High Risk Offenders Act:

“The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.”

30. Gleeson CJ observed, at [20], that unless there was something inherent in the making of an order for preventive, as distinct from punitive, detention that compromised the institutional integrity of the court, it was “hard to see” any foundation for the appellant’s challenge to the constitutional validity of the legislation based on the Kable principle.

31. Similarly, McHugh J observed, at [34], that:

“… nothing in the Act or the surrounding circumstances suggests that the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function. Nor is there anything in the Act or those circumstances that might lead to the perception that the Supreme Court, in exercising its jurisdiction under the Act, is acting in conjunction with, and not independently of, the Queensland legislature or executive government.” (citations omitted)

32. Gummow J, at [107], considered that the jurisdiction conferred on the Supreme Court of Queensland by the Qld Act provided for a specific sui generis regime and could not be said to require the exercise of functions by the Court that were an integral part of or closely connected with the functions of the legislature or the executive government.

33. The legislation under consideration in Wainohu was different. In that case, the appellant invoked the Kable principle to challenge the constitutional validity of the Crimes (Criminal Organisations Control) Act 2009 (NSW) (the Criminal Organisations Control Act). The Criminal Organisations Control Act conferred two functions on judges of the Supreme Court. The first function was an administrative act whereby a judge of the Supreme Court (an eligible judge) was empowered to make a declaration that an organisation was a “declared organisation” for the purposes of the Act, if satisfied that: (a) members of the organisation associated for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and (b) the organisation represented a risk to public safety and order in New South Wales: see s 9(1). If such a declaration was made, the Supreme Court was empowered to make a control order. It was accepted that the making of a control order against individual members of the club was a judicial act.

34. In the exercise of the administrative function an eligible judge was entitled to make a declaration by reference to information and submissions provided or made to the judge by the applicant, without regard to the rules of evidence, some of which could not be disclosed to the organisation or its members. There was no obligation to provide reasons for the determination, unless a request to do so was made. These features of the legislation caused French CJ and Kiefel J to observe, at [6], that if adopted by the Supreme Court itself, they would be repugnant to the judicial function.

35. It should be observed that the conferral on a judge of the Supreme Court of administrative functions does not of itself establish the invalidity of the conferring legislation. Rather, it is the conferral of functions in a manner that is incompatible with the institutional integrity of the court of which the judge is part that leads to invalidity: see Wainohu at [47] ff.

36. In Wainohu the legislation was held to be incompatible with the institutional integrity of the Supreme Court because of the connection between the administrative or non-judicial act in making a declaration and the judicial function in making a control order. As French CJ and Kiefel J pointed out, at [68], in performing the executive function under the Act, the judge was not required to give reasons, a well-established incident of the judicial function. However, in making a declaration under the Act, the judge was still performing “a function integral to the exercise of jurisdiction by the Court”. This was because the jurisdiction to make a control order was premised upon the existence of a declaration that an organisation was a “declared organisation”. Although that administrative decision was judicially reviewable, their Honours observed, at [69], that the availability of judicial review was, in practical terms, of limited scope given the likelihood that no reasons would have been given for the making of the declaration.

37. The effect of the Criminal Organisations Control Act, therefore, was, as observed by the plurality, Gummow, Hayne, Crennan and Bell JJ, at [109]:

“… to utilise confidence in impartial, reasoned and public decision-making of eligible Judges in the daily performance of their offices as members of the Supreme Court to support inscrutable decision-making under s 9 and s 12.”

38. In summary, the factors identified in Fardon and Wainohu that ensured that legislation would not offend the institutional integrity of a court vested with federal jurisdiction were the independence of the court, including the absence of a close connection with the executive in making the decision, and the presence of indicia that the decision-maker was acting in a judicial capacity. These indicia principally included that proceedings are conducted in public, the requirement for evidence, the existence of a discretion as to whether to make the decision, the exercise of the discretion being governed by identified parameters, the availability of an appeal and the requirement to give reasons.

39. It was the presence of these factors in Fardon and their absence in Wainohu which was critical to the outcome of the respective case. In Fardon, the legislation was held to be constitutionally valid. In Wainohu, it was not.

Comparative analysis of the High Risk Offenders Act and the Qld Act

40. Payne JA has carefully compared the relevant provisions of the High Risk Offenders Act with the corresponding provisions of the Qld Act. It is not necessary to replicate his Honour’s analysis, which I endorse. In summary, that analysis demonstrates that the High Risk Offenders Act has the same features as those of the Qld Act which were held not to infringe the constitutional integrity of a state court exercising federal jurisdiction.

41. It must also be said that the appellant did not identify any decision of the executive that the Supreme Court was asked to implement: see Wainohu at [46]. Under the High Risk Offenders Act, the only connection between the executive and the Court is that the State or the Attorney General acting on behalf of the State is the moving party in seeking an order against an offender. In this regard, the position of the State or the Attorney General, frequent parties to litigation in any event, is no different from that of any other party to litigation and, in particular, from the role of a party initiating court proceedings.

42. Importantly, s 13 does not create any connection or linkage between the Attorney General or the State and the Supreme Court. The functions exercised pursuant to s 13 are in no sense integral to the exercise by the Supreme Court of its jurisdiction under the High Risk Offenders Act in the way that caused the legislation in Wainohu to fail. Rather, s 13 requires the Attorney General to review the position of a person subject of an order on a regular basis so as to determine whether to make an application to the court to have the order varied or revoked. Any application made after that review is undertaken is subject to all the procedural constraints specified in the Act as well as the usual processes of the Supreme Court in the exercise of it judicial function.

43. That is not to say that there are no provisions of the High Risk Offenders Act that have an executive character. The provisions in Pt 4A, entitled “High Risk Offenders Assessment Committee and inter-agency co-operation”, are of that nature. Certain provisions of Pt 5, such as ss 25(1) and 25(2A), are also examples. It should be noted in respect of s 25(2A) that the Attorney General may request the court to provide information and documents. There is no compulsion on the court to provide the information, nor any sanction for refusal. This is in contrast to s 25(1), whereby the Attorney General may order a person to provide information and documents and in respect of which there is a penalty for failure to comply with an order.

44. More fundamentally, the fact that a statute makes provision for matters that might be characterised as executive, as well as matters that might be characterised as judicial, does not mean that the statute or its provisions are necessarily invalid, provided the jurisdiction or powers conferred do not undermine the institutional integrity of the court on which they are conferred. As has already been pointed out, the High Risk Offenders Act does not have the offending features that were held to render the legislation in Wainohu unconstitutional. The jurisdiction of the Supreme Court to make an order is not dependent upon an executive act. Rather, its jurisdiction is dependent upon the Court determining whether a person is a high risk offender: s 5B. That determination must be made in open court, on admissible evidence and in accordance with the usual processes of the Supreme Court. Although for the purposes of s 5B, and significantly for that provision only, the standard of proof is lower than the usual civil standard, that feature is not in itself incompatible with the Court’s institutional integrity.

45. The appellant placed particular emphasis upon the absence in the High Risk Offenders Act of an express provision that required that reasons be given. Two points may be made about this. First, in Wainohu there was an express provision that in making a declaration, being the administrative function under the Criminal Organisations Control Act, reasons need not be given. That is different from there being no express provision that reasons be given when a judge is exercising a judicial function. This leads directly to the second point. The appellant’s argument failed to have regard to the obligation on a judicial officer in the exercise of the judicial function in civil proceedings in the usual course to give reasons for decision, as has been examined in detail by Payne JA at [139]-[142]. Further, the obligation to give reasons is an important but not necessarily universal feature required of a court exercising its judicial functions: see the discussion of Payne JA at [141]-[142].

Involuntary detention

Appellant’s submissions

46. The other aspect of the constitutional argument raised by the appellant related to the involuntary detention of a person. This appeared to be primarily based on the principle stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 at 27 per Brennan, Deane and Dawson JJ that:

“… the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”

47. By reference to Chu Kheng Lim, the appellant contended that the scheme created by the High Risk Offenders Act was contrary to this principle and in particular, what had been said in South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39. The appellant submitted that according to Totani, the relevant principle was that the involuntary detention of a person in custody by the State was penal or punitive in nature and that such involuntary detention was only permissible as a consequential step in the adjudication of criminal guilt: Fardon at [77] per Gummow J. The appellant then submitted that, given that an order made under the High Risk Offenders Act takes effect after a person’s sentence has expired, such an order was not part of or an incident of the criminal justice system.

48. The appellant further submitted that the contravention of the principle in Totani was exemplified by the fact that pursuant to s 21, proceedings under the Act were civil proceedings, with the consequence that the rules of evidence and standard of proof that apply in respect of criminal proceedings have no application to the determination of whether a person is a high risk offender and whether an extended supervision order should be made. The appellant contended that the standard at which a determination that an offender posed an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision was further “watered down” by the terms of s 5B(3), which had the effect that the standard of proof required for the Supreme Court to be satisfied whether a person was a high risk offender was even lower than the civil standard.

Consideration

49. There have been judicial observations eschewing or tending to doubt the relevance of characterising legislation by reference to whether it is penal or punitive. Gummow J referred to this in Fardon at [80] when he expressed a preference for a statement of the principle in terms that involuntary detention is permissible as a consequential step in the adjudication of criminal guilt. His Honour stated, at [81], that this “formulation … eschews the phrase ‘is penal or punitive in character’” and continued:

“In doing so, the formulation emphasises that the concern is with the deprivation of liberty without adjudication of guilt rather than with the further question whether the deprivation is for a punitive purpose.” (citation omitted)

50. Gleeson CJ’s acceptance in Fardon that the legislation before the court validly authorised “preventive detention” also indicates that the characterisation of legislation as penal or punitive does not necessarily assist in determining whether such legislation is constitutionally valid.

51. In Totani, Kiefel J at [472], observed that:

“… some difficulty may attend questions about whether an order effects a punishment, but it is not necessary to consider such questions in this case.”

52. As I understand it, Hayne J would also eschew the characterisation of legislation as penal or punitive. In Totani, at [211], his Honour expressed the view that:

“… all of the circumstances considered in Chu Kheng Lim and Fardon, in which there can be the involuntary detention of a citizen, whether within or without the class of ‘exceptional cases’, depend for their engagement upon one or more factors specific to the person who is to be detained.”

53. The exceptional cases referred to by Hayne J are well established and include persons committed to custody pending trial, involuntary detention in the case of mental illness or infectious disease, the traditional power of Parliament to punish for contempt and the power of military tribunals to punish: see Chu Kheng Lim at 28-29. It was not suggested that the appellant’s case with which we are concerned fell into any of the exceptional categories.

54. As is apparent from Fardon and Totani, the preventive nature of the High Risk Offenders Act does not establish any constitutional invalidity. The legislation requires a judicial determination of the type that was upheld in Fardon, being a decision made in respect of the individual offender subject of the application in accordance with a proper judicial process. Accordingly, this challenge to the constitutional validity of the legislation should be rejected. In any event, as already explained, the High Court’s decision in Fardon which upheld almost identical legislation is binding on this Court.

Alleged errors of fact and law

55. I also wish to make the following short observations in addition to the reasons of Payne JA in respect of the alleged errors of fact and law raised in grounds 5-9 of the notice of appeal.

56. The first matter relates to the primary judge’s exercise of discretion. There was some confusion in the appellant's submissions as to whether his Honour purported to, or alternatively should have, exercised a discretion pursuant to s 5B. The second matter relates to his Honour’s reasons and the argument that his decision was void by reason of legal unreasonableness.

The exercise of discretion

57. The primary judge, at [46], stated:

“Under the Act, if the State discharges its burden to establish that the offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3). However, where a court is satisfied according to the relevant standard that the offender is a high risk sex offender, it would be an unusual case before the court would decide in its discretion not to make an [extended supervision order] under s 9.”

58. The appellant complained in ground 5 of the notice of appeal that his Honour’s discretion in making the order against him miscarried. The terms in which this challenge was framed in his written submissions were as follows:

“(43)   In making his determination on the extended supervision order, the primary judge wrongly failed to exercise his discretion which he correctly accepted he possessed (at [46] to [48] of his reasons).

(44) The question of law concerned is whether or not the primary judge should have exercised this discretion pursuant to section 5B of the High Risk Offenders Act.”

59. In his oral submissions, the appellant identified the alleged error as follows:

“… his Honour identified at paras 46, 47 and 48, that he had a discretion not to make an extended supervision order. … At 46 he identifies under 5B there’s a discretion whether or not to make an order, and that’s in the use of the word ‘may’ in the section. He said it would be an unusual case before the Court would decide in its discretion not to make an [extended supervision order] under s 9. That could be a contentious matter, or a contentious way of approaching it.”

60. Contrary to the terms in which this submission is framed, there is nothing in the language of s 5B that imports or implies the existence of a discretion at this stage of the decision-making process. Rather, s 5B authorises or empowers the Court to make an extended supervision order in respect of an offender who has been determined to be a high risk sex offender: s 5B(1).

61. The next observation that needs to be made is that his Honour did not purport to exercise a discretion under s 5B. His Honour would have been in error to have done so. To the extent that the appellant contended that his Honour purported to exercise a discretion under s 5B, that contention involves a misunderstanding of his Honour’s reasons at [46]. His Honour clearly distinguished between the requirement of establishing that an offender is a high risk sex offender under s 5B in respect of whom an extended supervision order can be made and the discretion whether to make an order. His Honour’s reference to s 9 in the last sentence of [46] demonstrates a correct understanding as to the point at which the discretion arises. His Honour then observed, correctly, at [48], that in determining whether or not to make an order, the Court must take into account the matters specified in s 9(3).

62. It is also appropriate to clarify what was determined in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 as to the matters that may be taken into account in making a determination as to whether an offender is a high risk offender. That case was concerned with a high risk violent offender. However, the determination under s 5E of the High Risk Offenders Act of whether a person is a high risk violent offender relevantly mirrors s 5B in respect of the determination of whether a person is a high risk sex offender.

63. One of the issues in Lynn was whether the right of an offender to his or her liberty at the end of their period of imprisonment was to be taken into account in determining whether the offender was a high risk violence offender. At the time that Lynn was heard, there were conflicting first instance decisions on this question: see State of New South Wales v Richardson (No 2) (2011) 210 A Crim R 220; [2011] NSWSC 276 and State of New South Wales v Thomas (Final) [2011] NSWSC 307.

64. In Lynn I concluded, at [56], Gleeson JA agreeing at [147]-[148], that if an offender’s right to liberty were to be taken into account when determining whether a person was a high risk offender:

“… the Court would be required to engage in the contradictory process of making an assessment of the likelihood of the offender committing a serious violence offence in the absence of supervision, whilst at the same time taking into account in that assessment the fact that the person would be deprived of his or her liberty if an order was made.”

65. Basten JA, at [128], expressed the position in the following terms:

“… The applicant was wrong to propose that a consideration of his interests formed part of a balancing exercise inherent in determining ‘unacceptable risk’ and required express recognition at that stage in the reasoning.”

66. Another matter of which complaint was made was his Honour’s statement, at [46], that, having been satisfied that the offender was a high risk sex offender to the relevant standard, it would be an “unusual case” where the Court would not make an extended supervision order. The appellant disavowed any challenge to this statement on the basis that it was a fetter on discretion, although he asserted that this language bordered on creating such a fetter. The argument was not taken any further. I would only add that it is preferable, when considering the exercise of statutory powers, not to qualify the statutory language. At best, it can cause confusion or be misconstrued as error where no error exists.

Unreasonable decision

67. The appellant also contended that his Honour’s decision was void as being unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

68. In Li, the plurality, Hayne, Kiefel and Bell JJ, were of the opinion that the standard of unreasonableness is not limited to an irrational or bizarre decision, in other words, a decision so unreasonable that no reasonable person could have arrived at it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR. Their Honours, at [67], considered that the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. In their Honours’ view, Lord Greene MR’s formulation in Wednesbury can be taken as recognition of the fact that an inference of unreasonableness may be objectively drawn in some cases, even where a particular error in reasoning cannot be identified.

69. Their Honours explained, at [68], the application of Wednesbury unreasonableness in the same terms as the last category of House v The King (1936) 55 CLR 499 error, that is, that an inference of unreasonableness may be objectively drawn even where a particular error cannot be discerned, a principle that their Honours noted informed the reasoning of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

70. Their Honours, at [72]-[74], identified other specific errors in decision-making that they considered may also be encompassed by unreasonableness. These included when the decision-maker, by reference to the scope and purpose of the statute, had committed a particular error in reasoning; had given disproportionate weight to some factor; or reasoned illogically or irrationally. Their Honours ultimately concluded, at [76], that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.

71. As Payne JA has carefully explained, there is no sense in which his Honour’s decision could be said to lack an evident and intelligible justification. Accordingly, for the reasons given by Payne JA, I agree that this ground of appeal should also be rejected.

72. PAYNE JA: On 8 January 2016 the primary judge imposed an Extended Supervision Order (ESO) on Mr Kamm under the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act): State of New South Wales v Kamm (Final) [2016] NSWSC 1.

73. Although not raised before the primary judge, the constitutional validity of the High Risk Offenders Act or, in the alternative, various provisions of that Act, is challenged in the appeal proceedings. In the alternative, in grounds 5 - 8 of the notice of appeal, the decision of the primary judge is challenged on separate review grounds alleging errors of fact and law.

Brief facts

74. The appellant is now 67 years old and has a history of sexual offending against young women. He established a religious community at Cambewarra, near Nowra, which became known as “The Order of Saint Charbel”. Mr Kamm claimed to have received visions or visitations from the Virgin Mary.

75. The appellant was and is known as the “Little Pebble”. He described himself as a visionary who had been told by God or the Virgin Mary that he was to be the last Pope. He claimed to be able to communicate regularly with the Virgin Mary, and would write down what she said and pass these messages on to his followers. The appellant also prophesied that there would be a new holy era when he would have 12 queens and 72 princesses, who would assist in bringing forth his children in an immaculate race. The 12 queens and 72 princesses would be chosen by the Virgin Mary. The 12 queens would bear his children. The 72 princesses would be able to marry others but would also bear his children if they wished. The children produced by the queens and princesses would be the product of the appellant’s "mystical seed".

76. In 2005, the appellant described the Order as extending to many countries and having over 500,000 devotees, who either resided in communities or were auxiliary members.

77. At the commencement of these proceedings, the appellant was serving a sentence of imprisonment following his conviction in 2007 for five counts of sexual intercourse with a child above the age of 10 years and under the age of 16 years, in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900 (NSW), and a further count of committing an act of indecency towards the victim, again in circumstances of aggravation, presumably under s 61O(1). The aggravating circumstance was that the victim was under the appellant’s authority at the time. He committed these offences in 1994 and 1995. The victim was then aged 14 or 15 years old. The appellant was sentenced to a non-parole period of seven years and six months with an additional term of two years and six months, being a total effective sentence of 10 years' imprisonment.

78. In 2005, the appellant was also convicted of sexual offences against another under-age girl, on one count of aggravated sexual intercourse under s 66C(2), and four counts of aggravated indecent assault under s 61M(1). The appellant committed those offences in 1993. The victim was then aged 15 years old. He was sentenced to a non-parole period of three and six months with a two year additional term, being a total effective sentence of five years and six months imprisonment.

79. Each victim had resided in the appellant’s religious community at Cambewarra.

80. While in custody, the appellant undertook the Custody-Based Intensive Treatment (CUBIT) program for sex offenders with limited success. He was identified as having continuing treatment needs. He was released on parole on 14 November 2014. Since then, the appellant has resided with his partner, who he married in December 2014, at a unit in Sydney. The appellant’s sentence of imprisonment expired on 13 October 2015.

81. In a psychiatric report dated 30 July 2015, Dr Andrew Ellis assessed the appellant as having a paraphilic disorder (provisional) centred upon deviant sexual arousal. Dr Ellis described the disorder as being a relapsing condition that is resistant to treatment and rehabilitative efforts. The appellant is also identified as having a co-morbid Narcissistic Personality Disorder, which has an impact upon on his treatment and supervision response.

82. In a psychological risk assessment report dated 7 September 2015, Dr Christopher Lennings opined that "there is a high likelihood of further serious sexual offending should the appellant be released into the community without supervision."

83. The appellant continues to present himself as the “Little Pebble” and to preach his views via 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 August 2015, the appellant told a supervising officer that the Order of Saint Charbel now has 50,000 followers who meet every week in prayer groups all over the world.

84. On 13 October 2015, R S Hulme J made an order under s 7(4) of the High Risk Offenders Act appointing Dr Jeremy O'Dea, psychiatrist, and Mr Patrick Sheehan, psychologist, to conduct separate examinations of the appellant and prepare expert reports for the Court: State of New South Wales v Kamm [2015] NSWSC 1492. His Honour also made an interim supervision order under s 10A of the High Risk Offenders Act, to commence from 13 October 2015.

85. On 6 November 2015, Schmidt J made an order under s 10C(2) of the High Risk Offenders Act renewing the interim supervision order until 5 December 2015. On 2 December 2015, Adamson J made an order further renewing the interim supervision order until 6:00pm on 15 December 2015. The primary judge ordered at the hearing that, pending his decision, the interim supervision order be further renewed until 12 January 2016.

86. The matter was heard on 13 and 14 December 2015. The primary judge delivered his reasons on 8 January 2016.

Decision of the primary judge

87. The primary judge made the following orders:

(1) Order pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 that William Kamm be subject to a high risk sex offender extended supervision order for a period of 5 years from today.

(2) Direct pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 for the period of the high risk sex offender extended supervision order that William Kamm comply with the conditions set out in the SCHEDULE to these orders.

88. The Schedule to those orders is Annexure A to these reasons.

89. After setting out the background facts (which are identified above), his Honour dealt with the evidence, the threshold requirements of the High Risk Offenders Act and the relevant statutory provisions and applicable principles at [22]-[45]. His Honour addressed the discretion not to make an ESO [46]-[47] before turning to the s 9 factors relevant to the appellant which his Honour addressed in some detail:

1. the appellant’s offending history, involving five counts of sexual offences relating to one victim aged 15 in 1993 (2005 conviction) and six counts of sexual offences relating to another victim aged 14 or 15 during the period of 1994 and 1995 (2007 conviction). The Court of Criminal Appeal dismissed the appellant’s applications to appeal against both these convictions: [49]-[75];

2. the views of the sentencing court in respect of the index offence. Williams DCJ (the sentencing judge for the 2005 conviction) anticipated that the appellant could be supervised in the community for up to 3 years: [76]-[77];

3. the appellant’s compliance with parole and supervision obligations. A progress report dated 13 February 2015 recorded that the appellant had been compliant in respect of the conditions of his parole order. However, it also noted that the appellant continued to state his innocence of the sexual offences for which he had been convicted: [78]-[89];

4. the appellant’s role as a “charismatic and mesmerising figure”, attributes that gave him access to under-age victims, a potent factor in connection with his risk of sexual recidivism: [90]-[100];

5. the appellant’s compliance with reporting obligations as outlined in a risk management report dated 6 October 2015: [101];

6. the report from Corrective Services NSW dated 6 October 2015, which set out a continued management plan to assist in the supervision and case management of the appellant, should he become subject to an ESO:[102];

7. the sex offender treatment the appellant had undergone, including the CUBIT program, between 27 March 2013 and 23 January 2014. In the most recent psychological risk assessment report, Mr Sheehan described the appellant as having made modest progress but he was not satisfied that the appellant had come to acknowledge the extent of his offending: [103]-[106];

8. the psychiatric evaluations of the appellant. Dr Chew opined that the appellant was not suffering from any major psychotic illness, but that his grandiose thoughts could be associated with a degree of narcissistic personality. Dr Ellis made the provisional diagnosis that the appellant met the criteria for a paraphilic disorder: [107]-[114];

9. the risk assessments carried out by experts other than the court-appointed experts, the most recent of which was by Dr Lennings on 7 September 2015, who concluded there was a high likelihood of further serious sexual offending should the appellant be released into the community without supervision: [115]-[142]; and

10. reports of court-appointed experts. Both Dr O’Dea and Mr Sheehan emphasised that the appellant presented a significant risk of engaging in further sex offending behaviours in the community in the absence of external supervision: [143]-[155].

Grounds of appeal

90. The appellant seeks leave to appeal from the decision below on the following grounds contained in a draft notice of appeal filed on 31 March 2017:

“1. The appellant contends that the Crimes (High Risk Offenders) Act 2006 (NSW) is not a valid law of the State of NSW.

2. Alternatively, that sections 5B, 5C, 9, 10 and/or 22 of the Crimes (High Risk Offenders) Act 2006 (NSW) are not valid laws of the State of NSW.

3. The Act, or alternatively, the said provisions:

(a) undermines or is incompatible with the institutional integrity of the Supreme Court of NSW; and

(b) is outside the legislative powers of the respondent, and is invalid.

4. The Act makes no provision for the determining justice to provide written reasons for his or her decision as to any application made for an extended supervision order and accordingly the principles contained in Wainohu v New South Wales (2011) 243 CLR 181 apply and the Act is invalid

5. In making his determination on the extended supervision order, his Honour wrongly failed to exercise his discretion which he correctly accepted he possessed (at [46] to [48] of his reasons). The question of law concerned is whether or not his Honour should have exercised this discretion pursuant to section 5B of the Crimes (High Risk Offenders) Act 2006 (NSW).

6. In considering the applicable but divergent first instance Supreme Court of NSW case law on the meaning of the expression “unacceptable risk of committing a serious offence” contained in section 5B(2) of the Crimes (High Risk Offenders) Act 2006 (NSW), his Honour wrongly failed to accept and apply the correct construction from the cases that held that there was a “permissible approach” (as the appellant submitted below) that permitted consideration by the court of the impact of the proposed extended supervision order on the appellant. The question of law is: what is the correct statutory construction of the said expression?

7. His Honour made a finding that the appellant’s behaviour was a “pretence” (at [171]) of his reasons) without first putting that view or provisional view to his or his legal representatives at the hearing. Failure to do so constituted a denial of procedural fairness or natural justice. The question of law is: Was there a denial of procedural fairness in the said premises?

8. His Honour failed to set out lawful or proper reasons, especially at [175] and [176] in that he failed to set out his reasons for his crucial findings here. It is impossible from the reasons to understand the actual path of reasoning which led his Honour to his decision. Alternatively, the decision is void by reason of legal unreasonableness in the sense used in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68], [70], [71]-[74], [76], [82] and [85].”

Procedural issue – leave to appeal

91. Section 22 of the High Risk Offenders Act provides a right of appeal within 28 days after the date the decision was made or by leave of this Court thereafter:

“22 Right of appeal

(1)    An appeal to the Court of Appeal lies from any determination of the Supreme Court to make, or to refuse to make, an extended supervision order, continuing detention order or emergency detention order.

(2)    An appeal may be on a question of law, a question of fact or a question of mixed law and fact.

(3)    An appeal against the decision of the Supreme Court may be made, as of right, within 28 days after the date on which the decision was made or, by leave, within such further time as the Court of Appeal may allow.

(4)    The making of an appeal does not stay the operation of an extended supervision order, continuing detention order or emergency detention order.

(4A)    If the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the extended supervision order, continuing detention order or emergency detention order the subject of the appeal continues in force, subject to any order made by the Court of Appeal.

(4B)    Without limiting any other jurisdiction it may have, if the Court of Appeal remits a matter to the Supreme Court for decision after an appeal is made, the Court of Appeal may make an interim order revoking or varying an extended supervision order, continuing detention order or emergency detention order the subject of the appeal.

(5)    This section does not limit any right of appeal that may exist apart from this Act.”

92. A notice of intention to appeal was filed on 1 February 2016 and a summons seeking leave to appeal was filed in this Court on 7 April 2016, almost three months after judgment was delivered.

93. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, Basten JA considered the nature and scope of appeals under the High Risk Offenders Act. The other members of the Court in Lynn did not join in that consideration. Relevantly, Basten JA identified the effect of s 22(5), which preserves any separate right of appeal that may exist beyond the High Risk Offenders Act.

94. The relevant alternative right of appeal was identified by Basten JA as that contained in s 101 of the Supreme Court Act 1970 (NSW) which provides a right to appeal to this Court from “any judgment or order of the Court in a Division”. If s 101(1) applied in Lynn (and in the present case), leave to appeal would be required under s 22(3) and would also be required under s 101(2). His Honour went on to address the inconsistency between s 22(3) of the High Risk Offenders Act, which provides for an appeal as of right in cases such as the present and s 101(2) of the Supreme Court Act, which requires leave to appeal in cases of this kind, at [91]-[93] (footnotes omitted):

“…the inconsistency between the grant of an appeal as of right pursuant to s 22(3) (within 28 days) and the requirement for leave under s 101(2) should be resolved in favour of the specific provision in s 22(3). Accordingly, the appellant is not subject to a general leave requirement, but does require an extension of time.”

95. I agree with Basten JA that in a case such as the present the appellant is not subject to a leave requirement under s 101(2) of the Supreme Court Act, but does require an extension of time under s 22(3) of the High Risk Offenders Act because the appellant did not file a notice of appeal within 28 days.

96. Section 22(5) of the High Risk Offenders Act preserves “any right of appeal that may exist apart from this Act”. To the extent that s 101(1) provides such a right, the additional requirement of leave in s 101(2) and the principles which attend such a grant of leave are in my view inconsistent with the right granted by s 22(3) of the High Risk Offenders Act. The express language of s 22(3) providing for an appeal “as of right” appearing in the later Act leaves no room for the imposition of the leave requirement in s 101(2) of the Supreme Court Act.

97. The correct approach to construction is to avoid what would otherwise be an inconsistency and to give effect to the harmonious goals of cognate legislation: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. That approach, applied here, has the consequence that where s 22(3) applies, as in this case, leave is required, and required only, under that section. This construction gives effect to the policy reflected in the High Risk Offenders Act where the legislature has provided a separate and less restrictive mechanism for appeals relating to orders falling within s 22(1) of that Act to be tested on appeal in this Court, leave only being required in relation to out of time applications.

98. This construction, which I prefer, leaves work for s 22(5) of the High Risk Offenders Act to do. For example, the making of interim supervision orders and interim detention orders does not fall within the class of matters described in s 22(1). Section 22(3) does not provide a mechanism for appeal against a refusal to make an interim detention order under the High Risk Offenders Act. An appeal against a refusal to make an interim detention order under the High Risk Offenders Act arises under s 101(2)(e) of the Supreme Court Act and requires leave under s 101(2) of that Act: State of New South Wales v Noack [2017] NSWCA 144 at [26].

99. The State did not oppose the grant of leave under s 22(3) in this case. In my view, given the importance of the questions to be decided, leave should be granted, despite the unhappy history of this matter which is recorded in my earlier judgments when case managing this appeal: Kamm v State of New South Wales [2016] NSWCA 339; Kamm v State of New South Wales (No 2) [2017] NSWCA 14 and Kamm v State of New South Wales(No 3) [2017] NSWCA 68.

Constitutional issue – grounds 1 - 4

100. I will deal with grounds 1 - 4 of the notice of appeal together as this was how those grounds were dealt with by the parties in written and oral submissions.

Section 78B notice and s 40 removal application

101. On 2 April 2017, a notice under s 78B of the Judiciary Act 1903(Cth) was served on each of the Federal, State and Territory Attorneys-General.

102. By affidavit of Mr John Omar Juweinat dated 23 May 2017 it was established that all Attorneys determined not to intervene but the Attorney-General for South Australia, Attorney-General for Tasmania, and the Commonwealth Attorney-General may seek to intervene if special leave were ultimately granted.

103. On 11 May 2017, the High Court refused the application made for removal of the constitutional issue to that Court under s 40 of the Judiciary Act: Kamm v State of New South Wales [2017] HCASL 128. In the judgment, Gageler and Keane JJ said:

“1. The appellant seeks an order under s 40 of the Judiciary Act 1903 (Cth) removing into this Court part of an application for leave to appeal pending in the Court of Appeal of New South Wales. The application for leave to appeal sought to be removed concerns the validity of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). In this regard, the appellant seeks to contend that the Act offends the principles identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

2. We are not satisfied that sufficient cause has been shown to warrant the removal of this issue into this Court.

3. The issue sought to be removed to this Court was not agitated before the primary judge. It was raised by the appellant as an issue in the proposed appeal for the first time only after the application for leave to appeal had been pending for more than a year.

4. To accede to the application would fragment the appellate process and would deny this Court the benefit of the consideration by the Court of Appeal of the issue sought to be removed.

5. Pursuant to r 26.07.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application for removal with costs.”

Appellant’s submissions

104. The appellant made four overlapping arguments challenging the constitutional validity of the High Risk Offenders Act, or alternatively ss 5B, 5C, 9, 10 and/or 22 of the High Risk Offenders Act. In essence, it was submitted that the High Risk Offenders Act, or those parts of it separately challenged, purported to confer a power or function upon the Supreme Court which was incompatible with the Court’s role as a repository of federal jurisdiction under the Constitution and was therefore invalid: see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.

105. First, the appellant recognised that the decision of the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 posed a significant obstacle to the acceptance of his constitutional challenge. The appellant submitted that Fardon should be distinguished, or in the alternative not followed, because the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) considered in that case:

1. contained an express provision for the judge to set out “detailed” reasons (s 17);

2. required there to be “acceptable, cogent evidence” before the Court (s 13); and

3. provided that the Attorney-General bore an onus of proving the prisoner was a “serious danger” to the community (s 13).

106. Secondly, the appellant submitted that the principles set out in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 applied to this case.

107. Thirdly, the appellant submitted that the “high degree of probability” requirement in s 5B(2) of the High Risk Offenders Act is watered down by s 5B(3) which provides the court is not required to determine that the risk of a person committing a serious sex offence is “more likely than not”. Thus, it was submitted, the task required of the Supreme Court is incompatible with the conferral of federal jurisdiction on the Court.

108. Fourthly, the appellant submitted that the authorities establish that a State Parliament cannot:

1. confer powers on State courts that are repugnant to or incompatible with their continued exercise of Commonwealth judicial power; (Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [123]; Fardon at [101]; Kable at 103);

2. confer on a State judge as persona designata a non-judicial function repugnant to or incompatible with the functions of the State court on which the judge sits: (Wainohu) at [47];

3. directly enlist State courts in the implementation of the legislative or executive policies of the State: (South Australia vTotani (2010) 242 CLR 1; [2010] HCA 39 at [82], [149], [236], [436] and [481]); or

4. require a State court to depart to a significant degree from the methods and standards which have historically characterised the exercise of judicial power: (Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [63]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [111], Totani at [131] and [42]).

Respondent’s submissions

109. The respondent made five overlapping submissions in response to the constitutional challenge to the High Risk Offenders Act.

110. First, the respondent submitted that the duty to give reasons is an ordinary incident of judicial process in civil proceedings. Whilst the High Risk Offenders Act does not expressly provide for judges to give “detailed” reasons as does the Dangerous Prisoners (Sexual Offenders) Act considered in Fardon, reasons must inevitably be given in light of factors in ss 9(3) (ESO) and 17(4) (Continuing Detention Order) (CDO) to which the Court must have regard.

111. Secondly, the respondent submitted that Wainohu should be distinguished as the statute under challenge in that case, the Crimes (Criminal Organisations Control) Act 2009 (NSW), expressly provided that an eligible judge did not need to give reasons as the power to perform the task mandated by that Act was conferred upon a judge of the Court as persona designata.

112. Thirdly, it was submitted that there is no difference in the evidentiary thresholds applicable under the Act challenged in Fardon and the High Risk Offenders Act. Under ss 5B, 5C and 21 of the High Risk Offenders Act, the State bears the onus to meet threshold requirements.

113. Fourthly, the objectives of the High Risk Offenders Act are protective, not punitive. Laws concerning involuntary detention for a protective purpose will not constitute an intrusion into the judicial power of a Chapter III Court: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 at [28] and [36]. The High Risk Offenders Act contains many safeguards of the nature referred to in Fardon.

114. Fifthly, the High Risk Offenders Act permits either party to apply to the Supreme Court to vary or revoke an ESO. This feature enhances, rather than detracts from, the independent judicial process undertaken by the Court required by the High Risk Offenders Act.

Consideration of Constitutional issue grounds 1 - 4

115. In my view, neither the High Risk Offenders Act as a whole, nor the specific sections which were challenged, provide an impermissible intrusion on the judicial function. The Act does not require a function to be performed which is incompatible with the conferral of jurisdiction under Chapter III of the Constitution upon the Supreme Court of New South Wales.

Essential characteristic of a court exercising federal jurisdiction/institutional integrity

116. The High Risk Offenders Act, while containing some differences, is similar in material respects to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) considered in Fardon. For essentially the same reasons as given by the High Court in Fardon, the High Risk Offenders Act does not infringe the Kable principle. The High Risk Offenders Act does not deny an essential characteristic of a court exercising federal jurisdiction nor attack the institutional integrity of a State court as an independent and impartial tribunal.

117. The following features of the Act in Fardon were critical to the Court’s determination that the Dangerous Prisoners (Sexual Offenders) Act was valid and did not impair the institutional integrity of the Supreme Court of Queensland so as to be incompatible with the Court’s position as a potential repository of federal judicial power.

118. First, it was important to the conclusion of the Court in Fardon that the Dangerous Prisoners (Sexual Offenders) Act in s 13 required the Court to reach the state of satisfaction that the prisoner posed “a serious danger to the community in the absence of a division 3 order” by the exercise of discretion having regard to a list of matters relevant to reaching that state of satisfaction, set out in s 13(4), in particular, psychiatrist reports and evidence of participation in rehabilitation programs: at [19] per Gleeson CJ; at [34] per McHugh J; at [98] and [115] per Gummow J; at [195] per Hayne J; and at [224] per Callinan and Heydon JJ.

119. The substantial discretion as to whether an order should be made and, if so, the type of order to be made was a critical issue in Fardon in favour of the conclusion that the Dangerous Prisoners (Sexual Offenders) Act did not impair the institutional integrity of the Queensland Supreme Court in a way incompatible with its role as a repository of federal jurisdiction: at [19] per Gleeson CJ; at [34] per McHugh J; at [109] per Gummow J; at [198] per Hayne J; at [227] per Callinan and Heydon JJ.

120. The High Risk Offenders Act requires, in s 5B, the attainment of a state of satisfaction that an offender poses “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”, having regard to a non-exhaustive list of matters relevant to reaching that state of satisfaction set out in s 9(3), including psychiatrist reports and evidence of participation in rehabilitation programs. The Court has a discretion, even if satisfied of that matter, whether or not to make an order and, if so, as to the content of that order. Subject only to a consideration of the effect of s 5B(3), addressed separately below, the provisions of the Dangerous Prisoners (Sexual Offenders) Act and the High Risk Offenders Act are relevantly identical.

121. Secondly, it was important in Fardon that the Dangerous Prisoners (Sexual Offenders) Act contained provisions for a review of the order: at [110]-[113] per Gummow J; at [196] and [198] per Hayne J and at [231]-[232] per Callinan and Heydon JJ.

122. Under s 13 of the High Risk OffendersAct the Supreme Court may at any time vary or revoke an ESO. Section 13(2) requires the provision of a report by the Commissioner of Corrective Services to the Attorney-General at intervals of not more than 12 months about matters relevant to whether to vary or revoke an order.

123. Thirdly, the character of the judicial processes imposed on the Court, including that the onus of proof was on the Attorney-General and that the rules of evidence applied, were important in Fardon in the Court’s conclusion that the Dangerous Prisoners (Sexual Offenders) Act was valid and did not impair the institutional integrity of the Supreme Court of Queensland: per Gleeson CJ at [19]; per McHugh J at [34]; per Gummow J at [115]: per Callinan and Heydon JJ at [229]-[230].

124. While there is no express reference to the onus of proof in the High Risk OffendersAct, it is tolerably clear from the scheme of the Act that the State bears the onus of proving that an offender poses “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”. So much is clear from a consideration of the legislative scheme, in particular sections 5B, 5C, 5H, 6, 9 and 21. It is clear that the State is the applicant for orders under the Act: s 5H and s 13A. Section 21 provides that proceedings under the High Risk OffendersAct are to be conducted in accordance with the law in relation to civil proceedings. In civil proceedings, unless there is a provision to the contrary (there is no such provision here), the moving party bears the onus of proof. The Court has held that in proceedings under the Act the State bears the onus of proof: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [23].

125. Fourthly, it was important in Fardon that the Dangerous Prisoners (Sexual Offenders) Act provided that hearings were held in public and in accordance with ordinary judicial process. There was nothing to suggest that the Supreme Court was to act as a mere instrument of government policy. The outcome of each case is determined on its merits: per Gleeson CJ at [19]; per McHugh J at [34]-[35] and [41]; per Gummow J at [107];

(3) An extended supervision order made under this section may also be referred to as a

"high risk sex offender extended supervision order" .

9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order:

(a) by making an extended supervision order, or

(b) by dismissing the application.”

160. In Donovan the Court (Beazley P, Macfarlan and Leeming JJA) held at [15] and [71]:

“[15] First, it was common ground that s 5G(1) conferred a separate discretion upon the court to decline to make a continuing detention order, even if the court were satisfied that adequate supervision will not be provided by an extended supervision order. That distinction may be important for the purpose of an appeal. Appellate review of a decision not to make an order because of a failure to be satisfied that adequate supervision will not be provided by an extended supervision order is different from review of a discretionary decision not to make an order even though the court is satisfied of that fact. One is discretionary in the ordinary sense of the word; the other well answers the description given in Norbis v Norbis (1986) 161 CLR 513 at 518 by Mason and Deane JJ of the application of “a very general standard” which calls for “an overall assessment” in the light of a range of factors. The primary judge squarely rested her decision on not being satisfied that adequate supervision will not be provided by an extended supervision order: see at [112].

…

[71] Further, the State’s submission is inconsistent with the discretionary aspect flowing from the opening words of s 5G (“The Supreme Court may, on application under this Act, make an order …”). The substance of the State’s submission was that a continuing detention order must be made unless there ceased to be an unacceptable risk, because that risk had been eliminated or substantially reduced by reason of the adequate supervision afforded by the extended supervision order. That submission cannot stand with the undoubted discretion to make an order. (The likelihood or unlikelihood of the discretion being exercised matters not for present purposes; the point is that its presence undercuts the State’s submission.)”

161. The appellant submitted, based on this analysis of the discretion in Donovan, that the discretion in ss 5C and 9(1) are separate and distinct discretions.

162. The appellant also relied upon Lynn where Gleeson JA made the following observations about the content of the discretion:

“[149] The interests of the offender in liberty and privacy are to be taken into account in the exercise of the court’s discretionary power under s 9 of the Act to either make an extended supervision order, or dismiss the application for such an order. Although not explicit in the Act, conceptually the exercise of the discretionary power can be viewed, as Basten JA has suggested, as involving an intermediate stage of considering the appropriate conditions which might be imposed as part of an extended supervision order, before considering whether such an order is otherwise appropriate. I agree with Basten JA that consideration of the possible intrusions on the offender’s liberty and privacy are appropriately taken into account at that intermediate and final stage of exercise of the discretionary power. Contrary to the appellant’s submissions in the present case, there is nothing inherently artificial in separating the adverse consequences for him and dealing with them only after the threshold assessment of unacceptable risk has been made.”

163. The appellant submitted that the primary judge erred by wrongly stating the following matters which went against the free and unfettered nature of the discretion he identified in [46]-[48]:

1. if the Court were satisfied that the offender was a high risk offender under s 5B, it would be an “unusual case” for the Court not to make an ESO: [46]

2. the State submitted there were no strong discretionary considerations: [47]

3. s 9 factors “may bear” on the discretion question: [48].

164. The appellant submitted the primary judge failed to make a single reference to the exercise of his discretion contained in ss 5C and 9(1) of the Act when setting out the s 9 factors (at [48]-[155]), the submissions of the parties (at [156]-[158]) and his final reasons (at [170]-[176]).

Respondent’s submissions

165. The respondent submitted that the primary judge made no error in identifying the discretion imposed on him by the High Risk Offenders Act (at [46]), nor in his practical application of it (at [47] and [48] and following where his Honour addressed the matters he was required to address in deciding whether the state of satisfaction was reached and in the exercise of the discretion to make the order). His Honour, in exercising the discretionary power to make an ESO conferred by s 9(1), appropriately directed himself to considering the mandatory factors in s 9(3) of the High Risk Offenders Act.

166. The respondent submitted that the appellant’s reliance on [71] of Donovan was misconceived as that paragraph is concerned with the Court’s discretion to make a CDO in light of the adequacy of the supervision that would otherwise be provided by an ESO.

Consideration of discretion issue

167. The appellant’s contention in ground 5 of the notice of appeal that the primary judge wrongly failed to exercise his discretion should be rejected.

168. The primary judge correctly identified the discretion he was obliged to exercise. His Honour found that, even if satisfied that the appellant posed “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”, there remained a discretion whether to make an ESO at all. His Honour addressed those matters at [46]-[47], where he sets out the test, and at [48]-[168] where he considered each of the s 9 matters which he had earlier expressly said must be taken into account in the exercise of his discretion. His Honour then expressed his conclusions about those matters at [169]-[176]. His Honour finally considered, being satisfied he should make an order, how to exercise the discretion about the content of that order, both as to its duration and particular terms at [177]-[186].

169. In oral argument on the appeal it emerged that the essence of the appellant’s complaint about the exercise of discretion was that, although his Honour had correctly identified the existence of the discretion whether or not to make an order, he had “effectively not dealt with” the exercise of discretion. The appellant’s submission should be rejected.

170. First, the primary judge expressly recorded that, even if the State discharges its burden to establish that the offender is a high risk sex offender under s 5B, the Court had a discretion whether or not to make an ESO under the High Risk Offenders Act. Senior Counsel for the appellant accepted that was not in dispute on this appeal.

171. Secondly, his Honour identified a number of factors which the respondent argued were relevant for the purpose of satisfying him that the appellant was a “high risk sex offender” and posed an “unacceptable risk” under s 5B, at [158]. Senior Counsel for the appellant accepted that was not in dispute on this appeal.

172. Thirdly, matters under s 9(3), relevant for the purpose of satisfying him that the appellant was a “high risk sex offender” and posed an “unacceptable risk” under s 5B, were also expressly treated by his Honour as relevant to the discretion whether or not to make an order at [46].

173. Fourthly, the primary judge proceeded, after recording this conclusion about the exercise of his discretion and the relevance to that exercise of discretion of the s 9(3) factors, to consider the s 9(3) factors at length.

174. Fifthly, in the course of addressing the relevant matters about, inter alia, the exercise of the discretion by reference to the s 9(3) matters, at [48]-[168], the primary judge expressly recorded the submissions made by both the State [158] and on behalf of the appellant [168] about the way in which he should exercise the discretion he had earlier identified whether or not to make an order.

175. Sixthly, immediately following paragraph [168] where his Honour recorded the appellant’s submissions about the exercise of discretion, his Honour recorded his conclusions about whether he should make an ESO and his Honour went on and made an order which did not reflect the orders sought by the respondent. Senior Counsel for the appellant accepted that this was not in dispute on this appeal “in terms of conditions”.

176. In my view, it is clear that the primary judge concluded that the appellant was a high risk offender and considered, in the exercise of the discretion he had identified, that an ESO should be made in the terms he identified, which were not the precise terms advanced by the State. That his Honour exercised the discretion he had correctly identified is the only implication available from the judgment.

177. It is clear that his Honour understood his discretion and that he exercised it. In his Honour’s conclusions, after drawing together his findings about the appellant, his Honour records in [175] that, “In my opinion it is essential to keep Mr Kamm under strict and close supervision even in the wider community”. The matters his Honour was addressing in paragraph [175] were clearly directed to the appellant’s central submission about discretion which his Honour had set out at [168].

178. Shortly put, the appellant had submitted that even if his Honour concluded that the appellant posed an unacceptable risk of committing a serious sex offence if he was not kept under supervision, he should, in the exercise of discretion, decline to make an order because the type of offending the appellant might engage in was “very specific”, by which the appellant meant in place and circumstance, being the religious community at Cambewarra. At paragraph [175] his Honour gave his reasons for the rejection of that submission, in the finding about the lack of a necessary connection between the appellant as the “residential leader of a religious commune” and the commission of further serious sex offences. This paragraph, in terms, gives his Honour’s reasons for the exercise of his undoubted discretion to make an ESO. Those findings address, again in reasonably clear terms, the precise submission made by the appellant below about the exercise of his Honour’s discretion.

179. In making the ESO, the exercise of discretion by his Honour is also apparent at [186]):

“[186] The State proposed a series of conditions to which Mr Kamm should be subjected. I have largely adopted those conditions. However, I have deleted some of the proposed conditions that appeared to me to be unnecessary or inappropriately restrictive and I have amended others. Having regard to the risk posed by Mr Kamm, the conditions appearing in the Schedule to these reasons seem to me to be more than adequate to deal with the unacceptable risk that I have identified.”

180. One final matter in relation to this ground should be noted. This is the primary judge’s reference in [46] to it being an “unusual case” where the Court would not make an ESO after satisfying itself to the relevant standard that an offender was a high risk sex offender. It was made clear by senior counsel for the appellant that there was no attack on this observation on the basis that it was a fetter on discretion. Whether or not this observation by an experienced trial judge is accurate is not the subject of this appeal.

181. Ground 5 of the notice of appeal should be dismissed.

Construction of “unacceptable risk” – appeal ground 6

Appellant’s submissions

182. It will be recalled that ground 6 of the notice of appeal provides:

“6. In considering the applicable but divergent first instance Supreme Court of NSW case law on the meaning of the expression “unacceptable risk of committing a serious offence” contained in section 5B(2) of the Crimes (High Risk Offenders) Act 2006 (NSW), his Honour wrongly failed to accept and apply the correct construction from the cases that held that there was a “permissible approach” (as the appellant submitted below) that permitted consideration by the court of the impact of the proposed extended supervision order on the appellant. The question of law is: what is the correct statutory construction of the said expression?”

183. The appellant submitted that the primary judge failed to accept and apply any construction regarding the meaning of “unacceptable risk of committing a serious sex offence” in s 5B(2) from the cases he referred to at [27]-[39]. That was principally a reference to the decisions of R A Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [22] and Davies J in State of New South Wales v Richardson (No. 2) (2011) 201 A Crim R 220; [2011] NSWSC 276. Subsequent to the decision of the primary judge, this Court in Lynn decided that the approach in Richardson (No. 2) should not be followed: at [49]-[61] per Beazley P, at [132]-[141] per Basten JA and at [147] per Gleeson JA.

184. The appellant submitted that the primary judge failed to consider the appellant’s circumstances and the adverse effect that a supervision order will have on him, the timing of when they should be taken into account was discussed in Lynn at [131] and [141] (per Basten JA) and [148]-[149] (per Gleeson JA).

Respondent’s submissions

185. The respondent submitted that the approach taken by Beazley P in Lynn as to the application of the “unacceptable risk” test was entirely consistent with that adopted by the primary judge in this case. In that case her Honour held that the words “unacceptable risk” are given their ordinary meaning in the context in which they appear, endorsing the approach taken by R A Hulme J in NSW v Thomas (Final) [2011] NSWSC 307 (at [58]) (which was considered by his Honour at [29], [32], [38] and [39]).

186. Further, her Honour found the approach taken by Davies J in Richardson (No 2) should no longer be followed to the extent that the test required having regard to or balancing the serious consequences to the offender occasioned by subjecting him to an onerous supervision order or detention order (at [57]).

187. The respondent observed that the primary judge’s statement (at [45]) that “decision-making about unacceptable risk is highly fact-dependent but takes place at least in the context of ensuring community safety and protection” bears a strikingly similarity to Beazley P’s observation in Lynn that “the evaluation to be made [as to unacceptable risk] is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection” (at [61]).

188. The respondent contended that nothing in Lynn would now mandate any different approach to the assessment of “unacceptable risk” to that adopted by the primary judge.

189. The respondent also submitted that Basten and Gleeson JJA in Lynn accepted that adverse consequences that an order would have on the offender may be given consideration after an assessment of “unacceptable risk”. The primary judge expressly adverted to such considerations at [168] and [186] of his judgment.

190. The respondent contended that whether the adverse consequences of an ESO were to be taken into account at the stage of assessing “unacceptable risk” (per Davies J in Richardson (No. 2)) or when exercising the ultimate discretion to make an ESO (per R A Hulme J in Thomas), was ultimately unimportant for the purpose of determining this ESO application because this particular case was fact driven.

Consideration of ground 6

191. Fundamental to the appellant’s contention under this ground is the proposition that the primary judge failed to accept and apply any construction regarding the meaning of “unacceptable risk of committing a serious sex offence” in s 5B(2), such that the primary judge failed to consider the appellant’s circumstances and the adverse effect that a supervision order will have on him. In this context, the appellant relied upon the discussion of the timing of taking into account the appellant’s circumstances and the adverse effect that a supervision order will have on him discussed in Lynn.

192. The premise upon which this ground rests is not correct. After considering the cases referred to in [27]-[39], his Honour concluded at [45] that decision making about unacceptable risk is highly fact dependent but takes place at least in the context of ensuring community safety and protection. This conclusion was one urged upon his Honour by counsel for the appellant below:

“HIS HONOUR:…[I]t just seems to me that a discretionary decision affecting anybody or person has to incorporate the interests of justice, the balance of their competing considerations.

Counsel: Precisely…It’s perhaps a purely theoretical exercise as to where one takes those into account under this legislation.

HIS HONOUR: I must say the significant likelihood in this case is that it’ll be fact driven rather than law driven won’t it?

Counsel: And that also appears to be the finding for most of the judges in this court who have expressed views one way or the other. They’re tentative views and it’s ultimately a matter not resolved definitively because the outcome is fact driven as your Honour says.”

193. That is, it was common ground below that his Honour did not need to determine whether the test proposed in Richardson (No. 2) or in Thomas was correct.

194. In the present case, the primary judge went on clearly and expressly to take into account the appellant’s circumstances and the adverse effect that a supervision order will have on the appellant at [168] and [186].

195. It is thus not correct to conclude that the primary judge “failed to consider the appellant’s circumstances and the adverse effect that a supervision order will have on him”. To the contrary, there was express consideration of those matters in the context where his Honour was about to embark upon the critical determination at [168] and went on to address, in emphatic terms, his Honour’s conclusion about the unacceptable risk the appellant posed, at [169]-[176].

196. Further, his Honour also plainly took into account the appellant’s circumstances and the adverse effect that a supervision order will have on him when considering the terms of the ESO he had decided to impose at [186].

197. Ground 6 of the notice of appeal should be dismissed.

Procedural fairness –ground 7

Appellant’s submissions

198. The appellant submitted the primary judge erred by making a finding that the appellant’s behaviour in using the persuasive influence upon vulnerable young girls of fabricated communications with religious identities was a “pretence” (at [171]) prior to first putting that view to his legal representatives at hearing. This, it was submitted, constituted a denial of procedural fairness or natural justice: Kioa v West (1985) 159 CLR 550; 1985 HCA 81; Minister for Immigration and Citizenship v SZGUR 241 CLR 594; [2011] HCA 1 at [9] and Mahon v Air New Zealand Ltd [1984] AC 808 at 821; [1983] UKPC 29.

Respondent’s submissions

199. The respondent submitted that the primary judge was required by s 9(3)(h1) of the High Risk Offenders Act to take into account the views of the appellant’s sentencing judges.

200. In respect to those sentencing remarks:

1. the sentencing remarks of Berman DCJ and Williams DCJ in respect of the appellant’s convictions were before the primary judge and served on the appellant in advance of hearing;

2. the appellant was aware that a factor to which the primary judge was required to have regard under s 9(3)(h1) of the High Risk Offenders Act, was “the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender”.

3. the respondent’s written submissions made references to sentencing remarks of Williams DCJ regarding the beginning of the appellant’s sexual predations and the appellant was open to engage with those findings.

Consideration of ground 7

201. Ground 7 of the notice of appeal may be dispensed with shortly. His Honour stated at [171]:

“[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 used the 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 delusions or self-serving lies, it is ultimately irrelevant for present purposes whether Mr Kamm’s predispositions and propensities are the function of an identifiable mental illness or not. I much prefer the approach taken by each of the sentencing judges who were astute in identifying Mr Kamm’s behaviour as pretence.”

202. The primary judge was bound to take the remarks of sentencing judges into account under s 9(3)(h1) of the High Risk Offenders Act. The primary judge in the passage complained of was referring to historical events about which findings had been made by sentencing judges which his Honour was bound to take into account.

203. The appellant was on express notice that those remarks on sentence were relied upon in support of the application for an ESO. The remarks were tendered and were referred to in written submissions by the State. The applicant had an opportunity at the trial to engage with those findings if he so chose. There was no denial of procedural fairness.

204. Ground 7 should be dismissed.

Failure to give proper reasons and unreasonableness of decision – ground 8

Appellant’s submissions

205. The appellant submitted that the primary judge failed to set out proper reasons for his crucial findings, especially at [175] and [176]. The appellant contended that the primary judge’s observations at [175] and [176] are conclusions where the grounds upon which the conclusions rest are not articulated. For example:

1. the “short step from repeating such conduct” observation discussed at [175] was wholly unexplained and appears central to the primary judge’s findings;

2. the conclusion that the appellant’s restoration as a religious leader was not the “single precondition to the commission of further serious sex offences” at [175] was also unexplained;

3. the finding that it was “essential” that the appellant is kept under “strict and close supervision” at [175] was also unexplained;

4. the conclusion that the appellant “poses an unacceptable risk” at [176] lacked reasons – it did not set out the risk, nor to the extent it was found.

206. Alternatively, the appellant submitted that the decision of the primary judge is void by reason of legal unreasonableness in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. On this basis the appellant submitted that the primary judge failed to have regard to:

1. the probation and parole determination of the Parole Board dated 11 November 2014; and

2. the Corrective Services’ view articulated in the Parole Board report and contemporaneous notes.

Respondent’s submissions

207. The respondent submitted that his Honour logically and carefully set out the following:

1. the relevant background facts: [2]-[12];

2. the applicable legal framework, including satisfaction that the threshold requirements for making an ESO had been met: [16]-[47];

3. mandatory factors to be taken into account in s 9(3), relevant to making an assessment of the existence of an “unacceptable risk” and the exercise of his discretion under s 9: [48]-[155];

4. the submissions of the parties: [156]-[168];

5. his consideration of whether the appellant posed an “unacceptable risk” and whether an ESO should be made: [169]-[176]; and

6. his conclusion about the duration and terms of the ESO: [177]-[186].

208. As to the complaint that paragraphs [175] and [176] failed to set out proper reasons, it was submitted that the primary judge made logical conclusions about matters raised by the evidence and the reasons he provided in preceding paragraphs at [173]-[174] and in [176] itself.

209. In respect to the reasonableness of the decision below, the respondent submitted that the decision to make an ESO was well supported by the evidence before his Honour. The respondent contended that none of the evidence before his Honour could be diminished by the probation and parole determination of the Parole Board or the views of the Department of Corrective Services expressed in that report.

210. It was submitted that the decision of the State Parole Authority that the appellant’s risk of re-offending would be managed by close supervision along with counselling is entirely consistent with the basis on which the ESO was made. Further, any observations in the probation and parole determination of the Parole Board about whether the appellant posed an “unacceptable risk” in 2014 say nothing about the risk posed by the appellant in 2016 if he were to be released from custody and remain unsupervised.

211. Finally, the appellant’s legal representatives failed to refer the primary judge to the contents of the Parole Determination which they now argue was disregarded by his Honour.

Consideration of ground 8

212. The appellant’s submission that the primary judge failed to set out lawful and proper reasons should be rejected. In a lengthy and careful judgment his Honour found all the relevant facts, identified the legal issues and addressed the issues presented for determination by the parties.

213. The specific attacks upon paragraphs [175] and [176] are without merit. No fair reading of the decision of the primary judgment as a whole could lead to the conclusion that no reasons have been given for the findings expressed in those paragraphs.

214. In paragraph [175] his Honour gave detailed reasons for the view he had formed that the offender posed an unacceptable risk of committing a serious sex offence if he or she was not kept under supervision and that in the exercise of his direction he should make an ESO.

215. Ironically, given the context of ground 5 of this appeal, which alleges a failure by his Honour to address the discretion not to make an ESO, in paragraph [175] the primary judge is squarely addressing the appellant’s contention that an ESO is unnecessary in the exercise of discretion because “the type of offending Mr Kamm might engage in is very specific”, as the appellant submitted below (set out at [168]). In that context, the finding that restoration of the appellant as residential leader of a religious commune was not the single pre-condition to the commission of a further serious sex offence is both explicable and compelling. Paragraph [175] contains explicit reasoning rejecting the appellant’s submission below that it was unnecessary to impose an ESO, despite there being an unacceptable risk of committing a serious sex offence if the appellant is not kept under supervision, because of the “specific” type of offending he may engage in.

216. Paragraph [176] is to the same effect, giving reasons for the primary judge’s conclusions based on the evidence of the medical professionals whose evidence he had earlier discussed at some length.

217. The primary judge did not fail to give proper reasons for his findings.

218. The appellant’s unreasonableness ground based upon Minister for Immigration and Citizenship vLi (2013) 249 CLR 332; [2013] HCA 18 is without merit. The probation and parole determination of the Parole Board and the views of the Department of Corrective Services expressed in that report are not inconsistent with the primary judge’s reasons. The report is limited to a consideration of whether the appellant posed an unacceptable risk if released to the community subject to parole conditions, not the “unacceptable risk” assessment considered in an ESO application under the High Risk Offenders Act.

219. Perhaps for this reason, the report was not even drawn to the attention of the primary judge by the appellant’s representatives below. The report provides no basis for a conclusion that the decision of the primary judge is void by reason of legal unreasonableness in the sense described in Li.

220. I agree with the additional reasons of Beazley P.

221. Ground 8 should be dismissed.

Conclusion and orders

222. For the forgoing reasons I propose the following orders:

1. Under s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) extend time to bring the appeal to 7 April 2016;

2. Grant leave to appeal under s 22(3);

3. Direct that the notice of appeal filed on 31 March 2017 stand as the Notice of Appeal;

4. Dismiss the appeal.

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Annexure A

“SCHEDULE

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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 follow all reasonable directions by his DSO or any other person supervising him.

4. 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.

Electronic Monitoring

5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

6. 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.

7. 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.

8. The defendant must not deviate from his approved schedule of movements except in an emergency.

9. 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.

Part B: Accommodation

10. The defendant must live at an address approved by his DSO.

11. The defendant must be at his approved address between 10pm to 6am unless other arrangements are approved by his DSO.

12. The defendant must allow his DSO or any other person supervising him 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.

Part C: Place and travel restrictions

13. The defendant must not leave New South Wales without the approval of CSNSW.

14. The defendant must surrender any passports held by him to the Commissioner.

15. The Defendant must not go to any residence where females under the age of 17 ordinarily reside.

16. The defendant must not reside in the Nowra area, as defined by the area depicted on the map that is Annexure A to the conditions imposed by R S Hulme J on 13 October 2015, including the entirety of Kaloona Drive, Cambewarra, except with prior approval of the DSO.

Part D: Employment, finance and education

17. Deleted.

Part F: Non-association

18. Deleted

19. The defendant must not approach or have contact with females who he knows are under the age of 17 except with the prior approval of the Defendant’s DSO to that approach or contact.

20. The defendant must obtain written permission from the DSO prior to joining or affiliating with any internet or mobile based social networking service.

Part I: Internet and other Electronic Communication

NOTE: In conditions 21 to 25 below, “Communications Devices” includes phones, computers, tablets and data storage devices.

21. The defendant must give his DSO lists of all communication devices he uses or which are commonly present in his residence. 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 the internet connection. In the event the number or identity of such devices changes, the Defendant shall immediately provide written advice of such change to his DSO.

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.

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.

24. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

Part J: Search and seizure

25. The defendant must allow his DSO or CSNSW to search at any time any communications device the defendant may use.

26. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs c 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. 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.

NOTE:

"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.

"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 conditions 25 or 26 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 sex 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.

Part L: Personal details

30. The defendant must not change his name from “William Kamm” or “William Costellia” or use any other name without notifying 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, 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 let CSNSW photograph him at all reasonable times.

33. 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.

Part M: Medical intervention and treatment

34. Deleted.

35. 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.

36. 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.

37. Deleted.

NOTE: In these conditions: -

“DSO” means the Departmental Supervising officers appointed to supervise the Defendant.

“CSNSW” means Corrective Services.

Amendments

02 August 2017 - [56] "respondent's submissions" amended to "appellant's submissions"

02 August 2017 - Minor typographical corrections made

01 August 2017 - Minor typographical corrections made

Decision last updated: 02 August 2017