R v William KAMM

[2007] NSWDC 177

CITATION:	R v William KAMM [2007] NSWDC 177
HEARING DATE(S):	8 May 2007 - 11 May 2007 15 May 2007 - 30 May 2007
JUDGMENT DATE:	24 August 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [46] - [49]
CATCHWORDS:	Criminal law - Sentence - Religious community - Aggravated act of indecency - Aggravated sexual intercourse - Complainant under the authority of the offender - Offender has committed similar offences in the past - Substantial harm
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	Crown William Kamm
FILE NUMBER(S):	06/11/0741
COUNSEL:	P.A. Leask - Crown G.J. Stanton - Offender
SOLICITORS:	NSWDPP Macquarie Lawyers

SENTENCE

1 HIS HONOUR: Many people think that William Kamm is a prophet, able to communicate directly with God and the Virgin Mary. This gives him enormous power over those who have these deluded beliefs. He has taken advantage of these people by satisfying his desire to have sex with young girls.

2 The offender is the leader of a religious order based around a community at Cambewarra near Nowra on the South Coast of New South Wales. He has many followers, many of whom live as part of that community. He claims, and his followers believe, that through some miraculous process he is able to communicate directly with the Virgin Mary, for some reason, this regularly occurring on thirteenth of each month. He writes down what she says and these messages are passed onto his followers.

3 At times some of his followers sought to ask the Virgin Mary specific questions. The process which was followed was that the member of the community would write down some questions and the offender would pretend to have received the Virgin Mary’s answers to those questions, which he would also write down and give to the person who was seeking the information.

4 This gave the offender a powerful way over which he could manipulate the beliefs and actions of his followers. In particular he was able to control the actions and desires of young girls with whom he wanted to have sex. Thus in the present case the complainant wrote a number of letters to the Virgin Mary and the offender pretended to receive answers from her to those questions, which were then passed on to the complainant.

5 The questions were very poignant at times, demonstrating the normal everyday concerns and wishes of a young girl. Not surprisingly, given the age of the complainant at the time, the questions she asked were those of a child, not of a mature woman. The offender’s response, which I repeat he pretended came from the Virgin Mary, was directed to persuading her to do things which would satisfy his sexual desire for her. That appears to have been the primary focus of the offender’s written communications with the complainant.

6 The offender told his followers many strange things. One of them, of central importance to the present case, was that there would soon be a new era, that he would be the last pope, living in Germany, and that he would be able to choose twelve queens and seventy-two princesses who were responsible for repopulating the earth once the new era had arrived.

7 One thing that the princesses and queens had in common was that this process of repopulation would come about through them becoming pregnant to the offender after impregnation with his “mystical seed”.

8 There is a traditional respect given to religious beliefs. In times past, and it might even still be the case, in this country there was an offence of blasphemy which, although it only applied to the Christian religion, demonstrated that religious beliefs were in a special category of belief. Those who believe in astrology or UFOs are not accorded the same respect as those who believe in an all-knowing god, virgin birth and resurrection from the dead.

9 Some have questioned whether religious beliefs should be in this special category, but that is not a debate I want to enter here. I mention it only to contrast other religious beliefs from those promoted by the offender, and to emphasise that the way the offender manipulated his followers’ religious beliefs is deserving of no respect at all.

10 It is difficult to understand how anyone could have been taken in by the offender, but clearly many were. It is remarkable that although many believed him to be God and that his writings came directly from the Virgin Mary, no-one thought to question why such all-powerful entities were incapable of spelling simple words correctly. The letters tendered in the trial were clearly not the work of an all-powerful, all-knowing god.

11 I am satisfied that the offender does not genuinely believe that the Virgin Mary told him to have sex with the complainant. The offender’s belief is remarkably convenient for a person who wants to have sex with underage girls. I am satisfied he deliberately manipulated the complainant’s beliefs, not because he wished to repopulate the earth, but simply because he wanted to have sex with her when she was fourteen years old.

12 The complainant moved into the community with her family when she was a very young girl. Her mother was, and indeed remains, a devoted follower of the offender, so much so that she consented to the offender having sex with two of her daughters, even while he was married to a third. In those circumstances, it is in no way surprising to find that the complainant told no-one in authority outside the community about what the offender was doing to her until she left the community in 2002.

13 The issue at trial was a very narrow one. There was no dispute that at some stage the offender began a sexual relationship with the complainant. There was no dispute that she was a young girl at the time. The only issue was whether the sexual relationship commenced when she was under the age of sixteen or over it. There was evidence which pointed both ways, but there were significant items of evidence which clearly satisfied the jury beyond reasonable doubt that the sexual relationship began in 1994 when the complainant was fourteen, not 1996 or thereafter when the complainant was over sixteen.

14 One particular piece of evidence was quite telling: The complainant kept a diary in which she recorded, as well as her childlike thoughts and desires, matters concerning the offender. In one particular entry which, it was common ground was made on 15 July 1995, she records that:

“Tonight I will sleep with William, but he can’t do anything because I have my periods since yesterday”.

15 It is difficult to conceive of any innocent explanation for that entry.

16 Despite the conflicting evidence, the case against the offender was remarkably strong. Although the crown case largely depended upon the evidence of the complainant, there was substantial support for her in many areas.

17 The offender now stands to be sentenced for six specific offences, but he is certainly not entitled to any leniency on the basis that these were isolated matters. The offender had an ongoing sexual relationship with the complainant which began in 1994 and ended in 1999 when she became pregnant with the offender’s child.

18 The six specific matters for which the offender is to be sentenced are these:

Count One

19 The complainant gave evidence that on the first occasion she went to the Sovereign Motel with the offender, the offender told her that it was for the purpose of having sexual intercourse with him. Her evidence was that after they got into the room she watched television while he had a shower. He then came of out the bathroom with a towel wrapped around him and got into bed. He asked the complainant to come to bed as well but she refused, saying that she wanted to sleep on the couch.

20 Her evidence was that he got out of the bed and grabbed her arm, trying to pull her off the couch into bed, but he was unable to. She said that at this time he was not wearing anything. That constitutes an offence of aggravated act of indecency for which the maximum penalty is five years’ imprisonment.

Count Two

21 This concerned an act of sexual intercourse which the complainant said occurred on 7 July 1994, three days before her sister’s twenty-first birthday. Her evidence was that on this occasion, after they got to the motel they both got into bed, the offender showering first. She said that he began masturbating and touching her on the vagina, before taking her underwear off and penetrating her vagina with his fingers.

22 She then gave evidence that the accused got on top of her, asked if she was okay, and when she said “yes” he pushed his penis inside her vagina and had sexual intercourse with her. The complainant said that she cried out because it hurt so much. She could not recall whether he ejaculated, but after twenty minutes or so he got off her, turned around and went to sleep. This constitutes an offence of aggravated sexual intercourse with a person above the age of ten and under the age of sixteen, for which the maximum penalty is ten years’ imprisonment.

Count Three

23 This count refers to what the complainant said occurred the morning after the events which formed the subject of count two. On this occasion she said that she was in bed with the offender, facing away from him, and she heard him masturbating. She gave evidence that he pulled her nightie up and pushed his penis inside her vagina and had sexual intercourse with her. On this occasion he ejaculated. This constitutes another offence of aggravated sexual intercourse with a person above the age of ten and under the age of sixteen, for which the maximum penalty is ten years’ imprisonment.

Count Four

24 This count concerns an offence committed at a time when the 1994 Soccer World Cup was on. The offender took the complainant and her sister Z to the Sovereign Motel where the offender got two adjoining rooms. The complainant said that she spent the night alone in one of the rooms, while the offender and her sister spent the night in the other.

25 Her evidence was that the following morning her sister woke her up and told her that the offender wanted her to get into bed with him now. She therefore went into the other room, closing the connecting door, and got into bed with the offender. He started touching her on the vagina while masturbating, took her underpants off and put his fingers inside, and then got on top of her and pushed his penis inside her vagina and had sexual intercourse with her. This is another offence of aggravated sexual intercourse with a person above the age of ten and under the age of sixteen, for which the maximum penalty is ten years’ imprisonment.

Count Five

26 This concerned an act of sexual intercourse which occurred in January 1995. The complainant was able to identify a particular date because of entries in her diary. Her diary entry for 10 January 1995 reads:

“Anyway, Y went to hospital today and so I went to William to sleep over for a while, and guess what, I have to sleep with William tonight”.

27 The complainant interpreted that as meaning that she had to have sex with the offender, and although she did not recall any particular occasion at the offender’s house, her evidence was that if her diary said that she had to have sexual intercourse with the offender then she would have, and that the form of intercourse was like she used to have at the motel, namely he would masturbate and touch her vagina and then push his penis inside her vagina. This constitutes another offence of aggravated sexual intercourse with a person above the age of ten and under the age of sixteen, for which the maximum penalty is ten years’ imprisonment.

Count Six

28 Count six related to another event that the complainant was able to identify by looking at her diary. On 26 January 1995 her diary said, “Tonight I have to sleep with Willy again”. That told her, according to her evidence, that she had to have sexual intercourse with the offender whereby he put his penis inside her vagina. Hospital records showed that on 26 January 1995 her sister Y was still in hospital, being discharged on 5 March 1995.

29 That constitutes another offence of aggravated sexual intercourse with a person above the age of ten and under the age of sixteen, for which the maximum penalty is ten years’ imprisonment.

30 For each offence the circumstance of aggravation related to the fact that the complainant was under the authority of the offender.

31 It was impossible, when listening to the evidence in this case, not to feel deeply sorry for the complainant. She has been manipulated by many people in her short life. Her mother, her current de facto partner and a journalist from Today Tonight all pursued their own interests at the considerable expense of those of the complainant. But I have to be very careful not to punish the offender for the conduct of others over whom he had no control. I will sentence him for what he has done, not for what others have done.

32 These offences are not the first committed by the offender. Indeed, he is currently serving sentences for the indecent and sexual assault of another young girl who was also take in by the offender’s manipulations. His aggregate sentence for those matters is one of five years, with a non-parole period of three and a half years, the non-parole period expiring on 13 April 2009.

33 The fact that the offender has committed similar offences in the past is relevant in a number of ways. In particular, he is not to be sentenced as an offender with prior good character, and I must apply the principle of totality when assessing the appropriate sentences for the present offences.

34 No material was put today by Mr Stanton on behalf of the offender. Instead, that which I know of the offender’s background comes from a presentence report and a psychological report tendered by the Crown, those documents being prepared when Mr Kamm was sentenced for the earlier offences.

35 The offender was born in Germany and moved to Australia when he was four years of age. He left school at fifteen and began work in the Wollongong area. He gave up full-time work after he began receiving religious apparitions, and is now the head of a religious organisation with many, many followers throughout the world. As I mentioned earlier, many of those followers live in the Cambewarra community. The offender is regarded as a god by them.

36 I have to take into account that there has been a substantial delay between when these events occurred and today when the offender is to be sentenced for his wrongdoing. I do so, but I note that this was not a case where the offender has lived in fear of the knock on the door for many years. What the offender did, by manipulating both the complainant and her family, was to ensure that she would not complain to anyone outside the community about what the offender was doing to her. It was part of the offender’s manipulative efforts that he was able to commit these offences without any fear that the authorities would discover them.

37 I will also take into account that it is likely, because of the nature of the offender’s wrongdoing, that he will serve his sentence on protection. No longer is it the case that I automatically assume that the offender will serve his sentence on protection, and that this will necessarily involve conditions of custody that are harsher than those of the general prison community. But there is the risk that those will occur and so I will take that risk into account in formulating the appropriate sentence.

38 Under s 21A of the Crimes (Sentencing Procedure) Act I am required to consider whether there are aggravating or mitigating features. Mr Stanton referred to no mitigating features. I find that the offence was part of a planned criminal activity. Indeed, the offender’s modus operandi was to pursue the complainant and her parents through the use of fabricated communications with the Virgin Mary, to make them do something they would clearly not otherwise have done. The offender set out to achieve the objective of having sex with an underage girl and used his religious beliefs to achieve his ends. As I have mentioned, part of his planning also ensured that the risk of disclosure to people outside his religious community was minimised.

39 I turn now to consider whether there has been substantial harm caused to the complainant. There is some controversy as to the meaning of the word “substantial” when considering whether an offender has caused substantial harm. Some authorities suggest that harm can only be “substantial” when it is out of the ordinary, that is when the complainant has suffered more than might have been expected from repeated sexual abuse. I regard this controversy as one of categorisation only. There is no doubt that whether the harm caused to the complainant in this case meets the criteria of being substantial, it is something that I am not only entitled to but required to, consider when formulating the appropriate sentence to impose upon the offender.

40 As might have been expected from the offender’s conduct, the complainant has suffered enormously, and will continue to do so, perhaps for the rest of her life. Not only is there the usual harm that one sees when a person sexually abuses a child under his authority, but in this case there was significant collateral damage occasioned. That the offender procured the complainant’s acceptance of her unfortunate duty to have sex with the offender, through involving the complainant’s family in his manipulations, has led to a significant and long lasting split in the complainant’s family.

41 The offender’s conduct has also severely damaged the complainant’s religious beliefs and her ability to attend church. It is also appropriate to note, in particular, the circumstances in which count two was committed, with the complainant crying out in pain as that offence was committed.

42 As I said, these offences occurred some considerable time ago and the offender is to be sentenced according to the appropriate sentencing tariff which applied at the time. However, neither the crown nor Mr Stanton submitted to me that there had been any change in the way the courts treated offences such as these from the time when they were committed until today, the time at which the offender is to be sentenced.

43 Of course, the principle of totality applies here. I will commence the sentences for the present offences at the expiry of the effective non-parole period which is presently being served by the offender. I recognise that this is the latest date on which the sentences imposed by me can commence, but I recognise also that by cutting into the head sentence for those matters, this is itself a factor which automatically gives some effect to the principle of totality.

44 I will give further effect to the principle of totality, as I will explain later. I recognise also that the imposition of cumulative sentences can be a special circumstances, justifying a variation from the statutory ratio in order that the overall sentence reflects the statutory ratio. I note, however, that it was not submitted to me that there are any other special circumstances in this case. Thus the overall sentence will reflect the statutory ratio.

45 I have decided to impose identical sentences on all counts, apart of course from the first offence where the criminal activity involved is much less than that involved in the other five offences. I have given effect to the principle of totality, both as it concerns these six offences and the fact that the offender is currently serving a sentence for other offences, by ordering that the sentences I will shortly announce are largely to be served concurrently. And in fact the level of accumulation is very modest indeed, in some case there being no accumulation at all.

46 For count one on the indictment the offender is sentenced to imprisonment for a fixed term of six months to commenced on 14 April 2009. That sentence is a fixed term because of the other sentences I will now announce.

47 For counts two and three on the indictment the offender is sentenced to imprisonment for a period of five and a half years to commence on 14 April 2009, and I set a non-parole period of three years.

48 For count four on the indictment the offender is sentenced to imprisonment for five and a half years to commence on 14 October 2009, and I set a non-parole period of three years.

49 For counts five and six on the indictment the offender is sentenced to imprisonment for five and a half years to commence on 14 April 2010. I set a non-parole period of three years for each offence.

50 The effect of my sentences is that the effective non-parole period to be served by the offender, taking into account the sentences he is currently serving, is seven and a half years with an overall sentence of ten years. The offender is eligible to be released to parole on 13 April 2013.

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