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

[2021] NSWSC 322

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Costellia-Kamm (Final) [2021] NSWSC 322

Hearing dates:

23 March 2021

Date of orders:

1 April 2021

Decision date:

01 April 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 73

Catchwords:

HIGH RISK OFFENDERS – Crimes (High Risk Offenders) Act 2006 – final hearing – application for extended supervision order – Court’s discretion to dismiss application – disputed conditions – no question of principle

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B; 9(1)(b); 10(3); 10(A); 10(C); 11; 21; 61M(1); 61O(1); 66C(2)

Crimes (High Risk Offenders) Amendment Act 2017 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW) s 140(2)

Criminal Code (Cth)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189

Lynn v State of New South Wales (2006) 91 NSWLR 636; [2016] NSWCA 57

Minister for Home Affairs v Benbrika [2021] HCA 4

State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161

State of New South Wales v Kamm (Final) [2016] NSWSC 1

Texts Cited:

N/A

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
William Costellia-Kamm (Defendant)

Representation:

Counsel:
Ms G Wright (Plaintiff)
Mr M Robinson SC with Ms J Alderson

Solicitors:
Crown Solicitors Office (Plaintiff)
Aquila Lawyers (Defendant)

File Number(s):

2020/317240

Judgment

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

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

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

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

The issues for determination

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

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

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

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

Justice Harrison’s decision

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

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

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

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

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

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

In my opinion, Mr Kamm poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I am satisfied that he does so to a high degree of probability. My reasons for coming to that conclusion are as follows.

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.

….

It seems to me to be evident to the point of comfortable satisfaction that Mr Kamm has no insight into his offending, has demonstrated no remorse for his actions and possesses no understanding of the effect of his actions upon his victims. Mr Kamm remains convinced that he is a special person with an impressive and predetermined destiny. He continues even now publicly to reaffirm these arguably delusional self-perceptions. A reference to the Little Pebble website, with material from which I have been provided, conspicuously supports this. The difficulty for present purposes is that these perceptions, which were at the heart of Mr Kamm’s original offending, show no significant or appreciable sign of attenuation.

Mr Kamm continues to maintain his innocence. That is so notwithstanding two unsuccessful appeals against his convictions to the Court of Criminal Appeal. One unavoidable conclusion from the fact that Mr Kamm continues to view himself as blameless is that I cannot be confident that he would now consider the repetition of his offending conduct as either criminal or even morally wrong. Whatever disincentive to repeat offending may exist in the prospect of detection or further incarceration, Mr Kamm does not also appear to have any appreciation of the total unacceptability of his behaviour. That is apparent from his revelations to some of the various experts who have examined him. In short, in circumstances where the opportunity to do so arises, Mr Kamm has been assessed as having no self-regulatory abilities to resist reoffending.

Mr Kamm’s contentions are predicated upon the notion that the opportunity for further offending will not arise. However, Mr Kamm has not disavowed his delusional view of himself as a seer or a prophet or howsoever his imagined special circumstances might be characterised. It is Mr Kamm’s extraordinary view of himself that has previously afforded him the assumed authority to commit criminal acts with under-age women. It is in my view only a short step from repeating such conduct as long as Mr Kamm perceives or professes himself to have divine sanction for his conduct. Restoration of Mr Kamm as the residential leader of a religious commune does not seem to me to be the single precondition to the commission of further serious sex offences. In my opinion it is essential to keep Mr Kamm under strict and close supervision even in the wider community.

Although none of the medical professionals referred to has used the term, Mr Kamm’s particular sexual predispositions appear to be almost intractable. It will be recalled that Dr Ellis considered that Mr Kamm’s psychiatric disorders were chronic and likely to persist beyond any period of supervision. To the extent that his condition may be amenable to therapy, no tangible advances have so far been demonstrated. Mr Kamm therefore remains likely to commit further serious sex offences against female minors. He poses an unacceptable risk of doing so unless he is kept under supervision.

An appeal to the Court of Appeal from the orders of Harrison J was dismissed: Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189.

The submissions of the parties

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

1. the consensus of expert opinion is that the defendant poses at least a moderate risk of committing a further serious offence;

2. the defendant’s risk factors as identified by Harrison J have not changed to any significant degree;

3. he continues under the influence of a narcissistic personality disorder and paraphilic disorder;

4. His use of social media when permitted demonstrates he continues to engage in affectionate online communications with females who at least in appearance were girl-like. He promoted these relationships by presenting himself as a “seer visionary”. The evidence concerning the young woman referred to in the proceedings as "PP" demonstrates that he remains predisposed to creating environments that may be conducive to sexual offending of the type for which he has been convicted;

5. There is a consensus of opinion that his access to young females under the age of 17 years should be restricted and controlled especially if he is permitted to return to reside in Cambewarra, as is in contemplation;

6. His denial of previous offending, maintenance of his innocence and continued proselytising behaviour contribute to the risk of offending of the same type; and

7. The consideration that while he has not breached any of the conditions of the ESO nor has he made any real progress toward rehabilitation. For example, he has been subject to electronic monitoring throughout the duration of the order without meriting any progress toward easing or removal of that restriction.

16. The defendant submitted that:

1. the expert evidence does not support the conclusion that he presents an unacceptable risk. On the contrary, the usual actuarial tools used to gauge risk in this area point to the defendant being at the bottom end of the low risk category;

2. his attitudes have changed. While he adheres to the 12 queens and 72 princesses doctrine, he now consistently professes that God has revealed to him that it is not applicable now but will apply only after the Second Coming;

3. he is much older than he was when his offending occurred. He is 70 and his advanced age makes it much less likely that he is interested in teenage girls as sexual partners or able to act on any such interest. He suffered a stroke in 2018 which has left him with erectile dysfunction rendering him effectively impotent;

4. although he maintains his previous religious beliefs, he has complied in all respects with the previous ESO without any suggestion of posing an ongoing threat of re-offending. The evidence concerning PP is not to the point. She was already 18 years of age when she travelled from New Zealand to reside with the defendant and his third wife. She is of an age where she is free to make up her own mind about her lifestyle. The evidence of the police officers concerning her is that although she appears to be under the influence of the defendant’s wife, and perhaps of the defendant, they are unable to point to the commission of any offence;

5. the community at Cambewarra is much diminished. The evidence suggests it has been reduced to as few as 27, who are mostly older people. Of the residences, the evidence suggests that 2 adolescent males reside there. There has never been any suggestion that the defendant’s sexual interests are other than heterosexual; and

6. He has stated that his desire is to take up residence at Cambewarra, a property he owns, to avoid the expense of renting in Sydney and he wishes to lead a life which is “rather quiet” (Exhibit B, [379]).

Unacceptable risk consideration

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

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

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

“The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from [serious] offenders”.

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

“Is the likelihood of the defendant re-offending so high and the harm from an offence he is likely to commit so great that the community should not be expected to live with the risk?”

His Honour posed this question in recognition “that some degree of risk from individuals who have seriously offended in the past is inescapable and… the public understands and accepts this”.

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

“Correctly understood, a continuing detention order could not properly be made by a Court in the exercise of the discretion conferred by [the Commonwealth legislation] in a case where the only risk of offending identified by the [State] did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence “unacceptable” to that Court.”

I accept that this dictum goes to the exercise of the discretion conferred by s 9, rather than the evaluation of unacceptable risk required by s 5B(d). Nonetheless it is important to bear in mind their Honours view that to be unacceptable, a risk of offending must involve “a [relevant] threat of harm” of a “sufficiently serious” type. However, given that the relevant risk is the risk of the commission of a serious sex offence as defined, the focus of the evaluation of “unacceptability” falls more on the probability of materialisation of the risk than the nature of the harm involved. The Act itself identifies the nature of the harm involved by reference to a serious offence, as defined.

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

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

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

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

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

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

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

“The unique features of entitlement, self-importance, and his role as a self-appointed religious figure and leader of a cult which manipulated followers, prophesised false teachings and essentially facilitated child abuse in a systemic manner. Furthermore, his risk issues… largely stem from the interplay between his personal deficiencies, beliefs and the power to influence the followers of his cult, rather than an individual actuarial or structured professional judgment-based approach.”

Dr Furst assessed the defendant as having a moderate to high risk of re-offending by committing another serious sexual offence. He points out that the past offending occurred in his capacity as leader of the Order of St Charbel cult. He identified himself as a prophet with visions “and an entitlement to have sexual intercourse with the children of devotees who are described as ‘queens’ and ‘princesses’”. Dr Furst also pointed out that the defendant has not disavowed himself of those beliefs, lacks insight into the wrongfulness of his actions, and continues to protest his innocence. Given his ongoing role as leader of the cult, Dr Furst is of the view that “there is still [a] current potential” for the defendant to influence devotees and access more young female victims. Dr Furst also laid emphasis on the evidence “of an enduring personality disorder of a narcissistic variety which feeds [the defendant’s] sense of entitlement and grandiosity, including in both religious and sexual ways, cognitions that are known to facilitate sexual offending”.

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

30. Dr Samuels said (Exhibit B [396]):

Because of Mr Kamm’s ongoing denial of the offences, his grandiose visions, his attitudes that support sexual offending, his access to victims and power over members of the community, there has been great concern about his sexual offending risk. He has been assessed by multiple psychologists and psychiatrists. The consensus is that on actuarial tools Mr Kamm scores in low risk range (sic) because he has in fact, only been convicted of two separate offences. There is general agreement that actuarial measures do not accurately represent Mr Kamm’s risks and using other tools like the Risk of Sexual Violence Protocall more items are endorsed and taking into account particularly dynamic risk factors, the view has generally been that Mr Kamm is at moderate-high risk of committing a further sexual offence.

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

In terms of professional structure, judgment and taking into account actuarial dynamic and protective factors, I would regard Mr Costellia-Kamm as being at least at moderate risk of committing a further serious offence as defined in s 5 of the Act.

I concur that his actuarial risk on the Static-99R is in the very low range and I would agree that this does not reflect his overall risk. I would currently regard him as being at moderate risk of further serious offending. But his risk has in my view lessened with age and infirmity.

The contributing factors include the defendant’s narcissistic personality disorder, attitudes which legitimise his sexual offending including his beliefs regarding polygamy, sex with underage children, and the visions he has experienced telling him to have “queens and princesses” to produce children for the community. Dr Samuel regarded the prospect of the defendant returning to the closed community “where he is obviously still highly regarded” as “concerning”. He added that the evidence regarding PP was “of serious concern”.

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

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

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

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

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

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

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

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

“Your daughter [PP] has followed the messages of Our Lady through the Little Pebble for a very long time. About three months ago she expressed her desire to visit Our Lady’s home here in Australia. I was open and happy to assist her in this.” (My emphasis)

This is certainly suggestive of some contact between the defendant and PP when she was under the age of 17. The evidence is not precise and the contact may have been through the defendant’s “Little Pebble” website.

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

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

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

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

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

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

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

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

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

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

The difficulty for present purposes is that these perceptions, which were at the heart of [the defendant’s] original offending, show no significant or appreciable sign of attenuation.

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

Should an order be made?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conditions

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

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

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

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

The Defendant must not sign any lease of any of the residences at Cambewarra, or of any part of the land there, without prior approval of a DSO. The Defendant must not sell or otherwise alienate any part of the land there without prior approval.

I have deleted the overly inclusive language requiring prior approval of a DSO for the entry into any transaction above the value of $500. Leasing or selling residences, or any part of Cambewarra, is relevant to the risk in as much as it may bring underage females within the defendant’s sphere of influence. I accept that the defendant receives donations from adherents and devotees and has entered into other transactions concerning the property at Cambewarra. Those matters, however, do not appear to me to be bound up with the risk of further serious offending materialising. As I have said, although his idiosyncratic religious beliefs are relevant to his past offending, it is not appropriate that the State control his religious observance per se even in its secular aspect relating to all and any financial transactions above the value of $500.

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

The defendant is to provide any necessary keys and access codes to permit a DSO gaining access to Cambewarra for the purpose of exercising the powers conferred on a DSO by these conditions including condition 9.

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

73. My orders are:

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

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

                                                                               **********

SCHEDULE OF CONDITIONS OF SUPERVISION

                                                              WILLIAM COSTELLIA-KAMM

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“approved dwelling” means a residence including, but not limited to a house, caravan or cabin, identified by an address or marked with an ‘X’ on a map submitted by the defendant to a DSO, and which is approved by a DSO.

“Cambewarra” means the area depicted on the map that is Annexure A to these conditions, meaning the entirety of Lots 2 and 3 in Deposited Plan 733532, including the entirety of Kaloona Drive, Cambewarra.

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means William Costellia-Kamm, the defendant in these proceedings and the subject of the order.

"Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

“Electronic Identity” means each of the following:

(a)  an email address,

(b)  a user name or other identity allowing access to an instant messaging service,

(c)  a user name or other identity allowing access to a chat room or social media on the internet,

(d)  any other user name or other identity allowing access to the internet or an electronic communication service.

​​“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Material” includes:

1.         any written or printed material;

2.         any picture, painting or drawing;

3.         any carving, sculpture, statue or figure;

4.     any photograph, film, video recording or other object or thing from which an image may be reproduced;

5.         any computer data or the computer record or system containing the data; and

6.     any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

1.        A garment search, being 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; and

2.        A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2.   Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3.   The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements

5.   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.

6.   If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

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

Part B:  Accommodation

8.   The defendant must live at an approved dwelling at an approved address, with such approvals to be granted by a DSO, and must notify a DSO of any intention to change the defendant’s approved dwelling, address or living arrangements.

9.   The defendant must allow a DSO to visit him at his approved dwelling at any time and, for that purpose, to enter the premises.

10. The defendant must not spend the night anywhere other than his approved dwelling or any alternative approved addresses or dwellings (if relevant) without the prior approval of a DSO.

11. The defendant must  promptly notify a DSO of any visitor entering and remaining at his approved dwelling and must not permit  any person  to stay overnight, at his approved dwelling (other than persons who ordinarily reside at his approved dwelling or any other approved persons), without the prior approval of a DSO. 

Part C:  Place and travel restrictions

12. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

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

14. The defendant must not frequent or visit any place or district specified by a DSO.

15. Without limiting condition 14 above, the defendant must not go to any of the following without the prior approval of a DSO:

1. residences where the defendant knows that persons aged under 17 years ordinarily reside; and

2. internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

Part D:  Finance

16. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

17. The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of a DSO.

18. The Defendant must not sign any lease of any of the residences at Cambewarra, or of any part of the land there, without prior approval of a DSO. The Defendant must not sell or otherwise alienate any part of the land there without prior approval.

19. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of a DSO. 

Part F:  Non-association

Association with Children

20. The defendant must not associate (including online) with any female who he knows or reasonably should know is under 17, other than:

1. incidental contact in a public place in the course of the duties of the minor; or
2. with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO (including that the contact takes place in the presence of an adult who has been approved in writing by a DSO).  

Associations with Others (not children)

21. The defendant must not associate with any person or persons specified by a DSO.

22. If the defendant starts a romantic relationship with a woman, has a sexual relationship with a woman or commences a friendship with a woman, he must tell a DSO within 24 hours from the start of the relationship or friendship the name of the woman (“the woman”) and truthfully answer any questions that a DSO asks regarding that relationship or friendship.

23. Without limiting conditions 21 and 22, the defendant must not:

1. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

2. associate with any people who he knows are consuming or under the influence of illegal drugs.

24. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. 

25. The defendant must obtain written permission from a DSO prior to forming, joining or affiliating with any club or organisation.

Part 1:  Access to the internet and other electronic communication

26.The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.

27. The defendant must not use any alias, electronic identity, log-in name, name other than “William Costellia-Kamm” or “William Kamm” or “William Costellia” or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

28.The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

29. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

30. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

31. The defendant must not use any coded or encrypted messaging application or service.

32. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

33. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.

34. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

35. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

36. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J:  Search and seizure

37. a. The defendant must submit to the search by a DSO (or any other person as directed by a DSO) of:

1.  his person, or

2. his approved dwelling, or

3. if he is living at Cambewarra, any common areas or dwellings at Cambewarra to which he has lawful access (including but not limited to a house or cabin or a caravan), or

4. any vehicle in which he is travelling or which is under his control, or

5. any computer, electronic or communication device, pack, bag or container, storage facility, garage, locker or commercial facility in his possession or under his control.

    b.  The defendant must submit to the seizure of any object located during the search.

38. During a search conducted under condition 37, where the defendant identifies an item or object as belonging to a person other than the defendant, the preliminary inspection of that item, document or object is to be conducted in the defendant’s presence for the purposes of confirming the same. On the DSO agreeing, or person conducting the search on behalf of the DSO agreeing, that the item or object appears to belong to a person other than the defendant, no further search or seizure of it will be undertaken.

39. 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 this Order.

Part L:  Personal details and appearance

39.The defendant must not change his name from “William Costellia-Kamm” (or William Costellia or William Kamm) or use any other name without notifying a DSO.

40. The defendant must not significantly change his appearance without the approval of a DSO.

41. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

42. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part M:  Medical Intervention and treatment

43. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

44. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

45. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

46. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

47. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

48. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Part N: Cambewarra

49. For the purposes of administering the order, if the defendant is approved to reside at a dwelling at Cambewarra, in addition to the above conditions:

1. the defendant must notify a DSO of any visitor to Cambewarra who he knows, or should reasonably know, is female and under the age of 17 years within a reasonable time of becoming aware of the visitor’s presence together with any and all details of the visitor and the purpose for which the visitor is on the property;

2. the defendant must allow a DSO access to locations at Cambewarra where equipment for the purpose of electronic monitoring (such as beacons) is installed or is to be installed;

3. the defendant must take all reasonable steps to allow access to a DSO to any common areas of the property and dwellings that are not occupied by other residents;

4. The defendant is to provide any necessary keys and access codes to permit a DSO gaining access to Cambewarra for the purpose of exercising the powers conferred on a DSO by these conditions including condition 9.

5. the defendant must not hinder the ability of a DSO to speak with any resident at or visitor to Cambewarra;

6. the defendant must not grant any female under 17 years of age the right to reside at Cambewarra;

7. the defendant must provide a current list of residents of Cambewarra including their full names, age and gender upon request of a DSO, by no later than 48 hours following such request. The defendant is required to notify a DSO of any change in the residents of Cambewarra within 24 hours of that change.

(Annexure “A” to these conditions is omitted from this published version.)

Amendments

08 April 2021 - Orders and conditions in accordance with the Short Minutes of Order brought in by the parties have been added to the judgment

Decision last updated: 08 April 2021