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Supreme Court 8 January 2016

State of New South Wales v Kamm (Final)

[2016] NSWSC 1

Sexual offences
CRIMINAL LAW SERIOUS SEX OFFENDER

Citation: State of New South Wales v Kamm (Final) [2016] NSWSC 1
Court: Supreme Court of New South Wales
Date: 8 January 2016
Judge(s): Harrison J

Background

The defendant, a 65-year-old man who led a religious community near Nowra known as "The Order of Saint Charbel," had prior convictions for multiple counts of sexual intercourse with a child and indecency offences against two separate underage girls, committed in 1993, 1994, and 1995. He was sentenced to a total effective sentence of 10 years' imprisonment with a non-parole period of seven and a half years. He was released on parole in November 2014 and his sentence expired on 13 October 2015.

While in custody, the defendant completed the Custody-Based Intensive Treatment (CUBIT) program for sex offenders, but with only incomplete success. He continued to present himself publicly as a religious visionary via an active website and maintained contact with members of his religious community, stating that the order had approximately 50,000 followers worldwide.

The State of New South Wales applied for an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 before the expiry of the defendant's sentence. An interim supervision order had been in place since October 2015, renewed on several occasions pending the final hearing. The application was resolved on 8 January 2016, before the most recent interim order was due to expire.

  • Whether the defendant met the threshold criteria under the Crimes (High Risk Offenders) Act 2006 to be the subject of an application for an extended supervision order.
  • Whether the defendant qualified as a "high risk sex offender" within the meaning of the Act, specifically whether he posed an unacceptable risk of committing a serious sex offence to a high degree of probability.
  • Whether a high risk sex offender extended supervision order should be made, and if so, on what conditions and for what duration.

Decision

Harrison J was satisfied that the threshold requirements under the Act were met. The defendant's offences under section 66C(2) of the Crimes Act 1900 constituted "serious sex offences" and "offences of a sexual nature" within the statutory definitions, the application had been filed within the permitted six-month window before sentence expiry, and the defendant qualified as a "sex offender" under section 4 of the Act.

On the central question of risk, the court relied on expert psychiatric and psychological evidence. Dr Andrew Ellis assessed the defendant as having a paraphilic disorder centred on deviant sexual arousal, described as a chronic and relapsing condition resistant to treatment. The defendant was also identified as having a co-morbid Narcissistic Personality Disorder affecting his treatment and supervision response. Dr Christopher Lennings opined that there was a high likelihood of further serious sexual offending if the defendant remained in the community without supervision.

The court-appointed experts, Dr Jeremy O'Dea and Patrick Sheehan, also provided reports following their examinations of the defendant. The combined weight of the expert evidence supported a finding that the defendant posed an unacceptable risk of committing a serious sex offence to a high degree of probability, meeting the statutory definition of a "high risk sex offender."

Having made that finding, Harrison J determined that a five-year extended supervision order was warranted. The order was accompanied by a detailed schedule of conditions addressing matters including residence, movement, technology use, searches, reporting obligations, and attendance at psychological and psychiatric treatment.

Orders Made

  • An order under section 5C of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a high risk sex offender extended supervision order for a period of five years from 8 January 2016.
  • A direction under section 11 of the Act that the defendant comply with the conditions set out in the schedule to the orders for the duration of the extended supervision order.

Key Takeaways

  • The Supreme Court found that sexual intercourse with a child offences under section 66C(2) of the Crimes Act 1900, carrying a maximum of 10 years' imprisonment, qualify as "serious sex offences" for the purposes of the Crimes (High Risk Offenders) Act 2006.
  • A combination of paraphilic disorder and co-morbid Narcissistic Personality Disorder, assessed as resistant to treatment and affecting supervision response, was central to the court's finding of unacceptable risk to a high degree of probability.
  • Incomplete completion of an accredited custodial sex offender treatment program, combined with continued public promotion of the offender's persona and ongoing contact with followers, were features of the case before the court when assessing ongoing risk.
  • Under the Act, the primary objects of ensuring community safety and encouraging rehabilitation inform the court's exercise of discretion in framing supervision conditions, which in this case were extensive and detailed.
  • The five-year duration of the extended supervision order reflects the court's assessment that a prolonged period of structured community supervision was required given the chronic and treatment-resistant nature of the identified disorders.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5, 5B, 5C, 5I, 6, 7, 10A, 10C, 11
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2), 66O(1), Division 10 of Part 3
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Crimes (Serious Sex Offenders) Amendment Act 2010 (NSW)
- Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW)

Cases Cited:
- State of New South Wales v Kamm [2015] NSWSC 1492
- Attorney General of New South Wales v McGuire [2015] NSWSC 152
- State of New South Wales v Donovan [2015] NSWCA 280
- State of New South Wales v Bowdidge [2015] NSWSC 717
- State of New South Wales v Lynn [2015] NSWSC 665
- State of New South Wales v Mackey (No 2) [2015] NSWSC 1153
- State of New South Wales v Cruse [2013] NSWSC 1733
- State of New South Wales v Fisk [2013] NSWSC 364
- State of New South Wales v McQuilton [2014] NSWSC 11
- State of New South Wales v Conway [2011] NSWSC 588
- State of New South Wales v Darrego [2011] NSWSC 360
- State of New South Wales v Richardson (No 2) [2011] NSWSC 276
- State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- State of New South Wales v Tillman [2008] NSWSC 1293
- Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149
- Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110
- Kamm v The Queen [2007] NSWCCA 201
- Kamm v The Queen [2008] NSWCCA 290