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Court of Criminal Appeal 20 June 2022

Costellia-Kamm v R

[2022] NSWCCA 128

Sexual offencesPublic order & justice offences
BAIL RELEASE APPLICATI ON BREACHES OF ESO S 17 BAIL RISKS UNACCEPTABLE RISKS BAIL REFUSED

Citation: Costellia-Kamm v R [2022] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 20 June 2022
Judge(s): Adamson J, Bellew J, Lonergan J (reasons by Lonergan J)

Background

The applicant, a 72-year-old man, was subject to an Extended Supervision Order (ESO) made under the Crimes (High Risk Offenders) Act 2006 (NSW). An ESO is a court order imposing conditions on a person found to pose an unacceptable risk of committing a serious sex offence if left unsupervised. The applicant's ESO had originally been made in 2016 and extended in 2021, following convictions for sexual offences against two underage girls in the 1990s.

In November 2021, the applicant was arrested and charged with four counts of breaching his ESO. The alleged breaches involved accessing social networking services (specifically Facebook) in 2020, contrary to a direction prohibiting him from using any social networking service, whether directly or through a third party. Telephone records suggested the applicant's wife's Facebook account was accessed from the applicant's iPad on occasions when his wife was in a different location.

The applicant had been refused bail in the Local Court in November 2021 and again by Rothman J in the Supreme Court in February 2022. He then brought a fresh application before the Court of Criminal Appeal, which the Court dismissed on 1 June 2022. These reasons explain the Court's decision.

  • Whether the applicant had shown cause why his continued detention was not justified under ss 4(1) and 16B(1)(i) of the Bail Act 2013 (NSW)
  • Whether the applicant posed an unacceptable risk under s 17 of the Bail Act 2013 of committing a serious offence, interfering with witnesses or evidence, or otherwise failing to comply with bail conditions
  • Whether any proposed bail conditions could adequately address those risks

Decision

The Court treated the application as a fresh hearing rather than an appeal from Rothman J's decision, consistent with the approach in R v Kugor and Obeid v R (No 2). It was nonetheless open to the Court to take into account the findings made at the earlier bail hearing.

Lonergan J found the prosecution case to be a strong one. The Cellebrite extraction of the applicant's iPad and associated phone records provided substantial evidence that Facebook had been accessed remotely from the device during periods when the applicant's wife was in a different city. Lonergan J found this pointed to covert conduct in deliberate breach of ESO conditions, despite the applicant's denials.

The proposed bail plan, which involved the applicant residing with his wife, was found to be fundamentally problematic. The wife was an alleged participant in the very conduct giving rise to the charges. Lonergan J held that releasing the applicant into her company created an unacceptable risk of interference with witnesses or evidence, a risk that bail conditions could not adequately address.

More broadly, the Court found that the applicant's documented history of manipulation, his lack of insight into his offending, and his demonstrated willingness to circumvent supervision conditions meant there was no adequate basis for confidence that he would comply with bail conditions. The risks of further offending and interference with the administration of justice were real and unacceptable. Bail was refused.

Orders Made

• Bail application refused

Key Takeaways

  • Refusing bail under the Bail Act 2013, the Court confirmed that a fresh application to the Court of Criminal Appeal is not an appeal from a prior bail decision but is determined afresh, while findings from earlier hearings may still be considered.
  • Where a proposed residence arrangement places an applicant in close contact with a person alleged to have facilitated the charged offences, that arrangement can give rise to an unacceptable risk of interference with witnesses or evidence that bail conditions cannot remedy.
  • A strong prosecution case founded on digital and telecommunications evidence, combined with a pattern of covert conduct in breach of supervision orders, may weigh heavily against the grant of bail.
  • Under s 17 of the Bail Act 2013, the assessment of unacceptable risk extends beyond the likelihood of future offending to encompass the risk of interference with witnesses or evidence and the likelihood of compliance with conditions.
  • Prior judicial findings about an applicant's entrenched lack of insight, absence of remorse, and capacity for manipulation remain relevant to the bail risk assessment, even where those findings were made in separate proceedings such as an ESO application.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 4(1), 16B(1)(i), 17
- Crimes (High Risk Offenders) Act 2006 (NSW), s 12

Cases:
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Gountounas [2018] NSWCCA 40
- R v Kugor [2015] NSWCCA 14
- State of New South Wales v Kamm (Final) [2016] NSWSC 1
- Trinh v R [2016] NSWCCA 110
- R v Costellia-Kamm (Supreme Court (NSW), Rothman J, 3 February 2022, unreported)