Director of Public Prosecutions (WA) v Manning [No 8]

[2017] WASC 6

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANNING [No 8] [2017] WASC 6

CORAM:   CORBOY J

HEARD:   14 SEPTEMBER 2016

DELIVERED          :   14 SEPTEMBER 2016

PUBLISHED           :  17 JANUARY 2017

FILE NO/S:   MCS 6 of 2007

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

ERIC JOHN MANNING
Respondent

Catchwords:

Dangerous sexual offender - Eighth annual review - Whether respondent remains a serious danger to the community - Whether detention order should continue

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 33

Result:

Respondent remains a serious danger to the community
Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant:     Ms S Markham

Respondent:     Mr D J McKenzie

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     David McKenzie Legal Pty Ltd

Case(s) referred to in judgment(s):

Director of Public Prosecutions (WA) v Manning [No 2] [2010] WASC 220

Director of Public Prosecutions (WA) v Manning [No 3] [2011] WASC 209

Director of Public Prosecutions (WA) v Manning [No 5] [2013] WASC 331

Director of Public Prosecutions (WA) v Manning [No 6] [2015] WASC 3

CORBOY J: 

Summary

1. The respondent has a significant criminal record in Western Australia and South Australia.  He was convicted of indecent assault in 1996; indecent dealing with a 10 year old girl in October 1999; one count of deprivation of liberty, two counts of aggravated sexual penetration without consent and one count of attempted sexual penetration in May 2001; and in June 2001, assault occasioning bodily harm, his victim being a 54‑year‑old woman who he attacked in a public toilet.

2. In May 2008, McKechnie J made an order for the continuing detention of the respondent pursuant to s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). I conducted the sixth and seventh annual reviews of that order. I made findings that the respondent remained a serious danger to the community and declined to rescind the order.

3. I also conducted the eighth annual review of the detention order on 14 September 2016. Again, I made a finding at the review hearing that the respondent remained a serious danger to the community and affirmed the continuing detention order. Orders and declarations were made pursuant to s 33 of the DSO Act.

4. These are my reasons for making those orders.

The continuing detention order and past reviews

1. The circumstances in which the continuing detention order was made were summarised in the Director of Public Prosecutions (WA) v Manning [No 2] [2010] WASC 220 and the Director of Public Prosecutions (WA) v Manning [No 3] [2011] WASC 209. The respondent's criminal history and the circumstances of his offending were further summarised in the Director of Public Prosecutions (WA) v Manning [No 5] [2013] WASC 331 and the Director of Public Prosecutions (WA) v Manning [No 6] [2015] WASC 3. His personal circumstances and medical history were summarised in Manning [No 2], Manning [No 3] and Manning [No 5]. 

2. The matters stated in those various summaries were not in issue at the review hearing and I have had regard to the summaries for the purpose of conducting the eighth review.

3. The respondent was diagnosed with schizophrenia in 1997.  He has a significant history of polysubstance abuse.  He has been admitted to the Frankland Centre and has been subjected to several psychiatric assessments.  He has been consistently diagnosed as suffering from a psychotic disorder, although it has been difficult to further characterise the nature of his psychosis.  He has experienced auditory hallucinations and other symptoms of paranoia and has exhibited bizarre behaviours on occasions.  Psychological testing has established that his intellectual functioning is impaired.  He has become institutionalised and there have been periods during which he elected to remain mute.

4. I noted in the sixth annual review that there had been some improvement in the respondent's communication skills.  Nevertheless, psychiatric reports received for the purpose of that review noted that his ability to safely transfer to the community presented problems because of his institutionalisation and significant history of mental illness.  It was considered that the respondent would require constant supervision and management if the community was to be adequately protected on his release.  The accommodation facilities and other resources required for such intensive management were not available in the community.

5. I noted in the seventh annual review that the respondent had made some small gains through individual psychological counselling.  However, his plans for risk management were rudimentary and he was not inclined to address issues related to his offending despite being motivated to engage in therapy. 

6. Dr Wynn Owen provided a psychiatric report for the purpose of the seventh review.  He concluded that the respondent continued to exhibit a very limited appreciation of his offending and that a range of cognitive deficits impacted on his ability to understand his behaviour or to learn new coping and self‑management skills.  There was no indication that the respondent had the capacity to recognise risk and to self‑manage in the future.  Accordingly, I concluded that there had been no substantive change in the respondent's risk to the community or the steps that would be required to ensure that the community was adequately protected if he was released.

Present review

1. The respondent accepted that he remained a serious danger to the community and that the community could not be adequately protected if he was not provided with appropriate accommodation.  Those concessions were rightly made having regard to the evidence presented in the review by the applicant. 

2. The applicant tendered the following reports for the purpose of the review:

   (a)charge history, incidents and occurrence reports for the period 30 August 2015 to September 2016;

   (b)individual management plan prepared by the Department of Corrective Services;

   (c)health encounters report for the period 27 July 2015 to 25 May 2016;

   (d)prisoner copy of substance use test results;

   (e)autism spectrum disorder diagnostic assessment report by Dr Taylor, clinical psychologist;

   (f)psychiatric report by Dr Wynn Owen;

   (g)dangerous sex offender treatment progress report prepared by Ms Collyer, senior counselling psychologist; and

   (h)community supervision assessment report prepared by Ms Henshall, senior community corrections officer.

3. The possibility that the respondent suffered from an autistic disorder was raised in the material presented for the seventh annual review.  Subsequently, Dr Taylor investigated that possibility and concluded that the respondent did not suffer from autism spectrum disorder.  His social communication difficulties were better explained by cognitive and language impairments that occurred in the context of a personality disorder.

4. The respondent continued to receive counselling during the review year.  The counselling sessions focused on three treatment areas:  identifying and understanding the capacity for accommodation and community support; working on behavioural changes in the areas of interpersonal interactions and vocational training; and exploring criminogenic needs.  Treatment progress was said to be slow due to the respondent's cognitive issues, although some progress was noted in relation to the respondent's recognition of the contribution that alcohol abuse had made to his past offending.  The staff at Karnet Prison Farm had also noted that the respondent had engaged more readily with others and his behaviour had improved markedly during the review.  The respondent continued to engage to the best of his ability with his counsellor and the incremental gains that had been noted were consistent with the progress that had been made since a structured treatment and management plan had been devised in 2011.  However, Ms Collyer concluded that:

   Notwithstanding his progress since 2011, the observable gains made by Mr Manning in the past 12 months are relatively small.  Treatment is repetitious and limited by ongoing difficulties Mr Manning has with social and emotional expression.  Discussion of risk specific factors also appeared limited, with Mr Manning unable or unwilling to engage on risk relevant topics for extended periods of time.  This evident plateau in treatment gains is unsurprising given Mr Manning's cognitive and expressive difficulties and the limited novelty available within the current prison setting (Dangerous Sex Offender Treatment Progress Report, par 33). 

5. Dr Wynn Owen concluded that the respondent continued to present a high risk of serious sexual offending if released unsupervised.  The respondent had a very limited appreciation of his offending behaviour with his cognitive deficits adversely impacting on his ability to understand his behaviour or to learn.  There had been some improvement in his appreciation of the factors that caused his offending but Dr Wynn Owen characterised the improvement as 'superficial'.  Dr Wynn Owen considered that the respondent did not demonstrate self‑awareness to the extent that he could recognise risk scenarios and manage that risk.

6. I accept the opinions expressed by Dr Wynn Owen, Dr Taylor and Ms Collyer.  Those opinions and the other materials presented for the review establish that the respondent remains a serious danger to the community and that the community would not be adequately protected if he was released under a supervision order. 

7. Finally, I note that the next review of the detention order will be in September 2018.  Subject to his right to make an application under s 30 of the Act, the respondent will have been in custody for 10 years pursuant to the order by that time.  He has made progress under the structured management and treatment plan devised in 2011.  However, that plan is now becoming dated and in my view, the respondent would benefit from a revised plan that promoted the development of independent living skills.  Although the court cannot give directions to the executive, it is clear that the respondent would benefit from being given an opportunity to reside in shared accommodation and to further develop skills and behaviour that would enhance the likelihood of his release to the community.