The Director of Public Prosecutions v Manning [No 2] - [2010] WASC 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS -v- MANNING [No 2] [2010] WASC 220

CORAM: BLAXELL J

HEARD: 11 JUNE 2010

DELIVERED : 11 JUNE 2010

PUBLISHED : 17 AUGUST 2010

FILE NO/S: MCS 6 of 2007

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
ERIC JOHN MANNING
Respondent

Catchwords:

Criminal law - Miscellaneous matters - Dangerous sexual offender subject to continuing detention order - Second annual review - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17, s 33

Result:

Decision to expressly decline rescission of continuing detention order

Category: B

Representation:

Counsel:

Applicant: Mr D Dempster
Respondent: Mr D J McKenzie

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Legal Aid WA

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

Nil

BLAXELL J: On 11 June 2010 I heard an application by the Director of Public Prosecutions (WA) (DPP) for the second annual review of an order for the continuing detention of the respondent (Mr Manning) under the Dangerous Sexual Offenders Act 2006 (WA) (the Act). That continuing detention order was made by McKechnie J on 2 May 2008 following a finding that Mr Manning was a serious danger to the community within the meaning of s 7 of the Act. Part 3 of the Act requires that there be an annual review of Mr Manning's detention, and on the first such review (on 10 June 2009) Jenkins J expressly declined to rescind the continuing detention order.
After hearing the application for the second annual review, I also expressly declined to rescind the continuing detention order. I came to that decision under s 33 of the Act because of my findings that Mr Manning remains a serious danger to the community, and that a supervision order allowing for his release on conditions would not adequately protect the community.
It would have been very easy to deliver brief extempore reasons for my findings. However, as I have serious misgivings as to the adequacy of the justice system's response to Mr Manning's situation, I am providing the following more detailed reasons for decision.

Mr Manning's family and social background

Mr Manning was born on either 20 December 1974 or 20 December 1975 in South Australia. His parents were semi‑tribal Aborigines living at the Yalata Community. The father had been ostracised from the Yalata Community for tribal reasons, and he died during Mr Manning's early childhood. Mr Manning's mother was an alcoholic who did not provide him with proper care. In this regard, departmental records indicate that Mr Manning was raised in an environment characterised by violence and significant alcohol abuse as well as neglect of his sisters and himself.
The mother abandoned the children in 1982 (when Mr Manning was 7 or 8 years old) and they became wards of the State of South Australia. The children were then placed in temporary care while unsuccessful efforts were made to find long‑term placements amongst other relatives in South Australia. Ultimately, an uncle and aunt at Kurrawang near Kalgoorlie in Western Australia agreed to take the children and they arrived there in May 1983.
This was not a very stable foster placement and Mr Manning spent time in a foster home at Boulder and with other cottage parents at Kurrawang. During 1987 Mr Manning and his elder sister were returned to their mother in South Australia but this arrangement lasted only a few weeks.
Mr Manning and his sister then returned to Kurrawang where they experienced many changes in foster parents as well as periods of separation. For a period Mr Manning also lived at Coolgardie, and after March 1989 (at 14 or 15 years of age) he lived in a hostel at Boulder.
During the time when Mr Manning was the subject of foster placements in Western Australia he attended primary schools at Kalgoorlie and Coolgardie, followed by high school at Kalgoorlie. Despite the obvious disadvantage of his unstable home environment, school reports showed that he was bright and intelligent, and capable of good work. He was also described (in 1988) as 'a loveable kid' with 'leadership qualities which must be developed, also artistic skills which will be an asset if encouraged and developed'.
Nevertheless, there were some early indications of erratic behaviour. Although Mr Manning was often a 'model student' and 'quiet and lovely‑natured in the home' there were also occasional outbursts at school and episodes of aggression towards other children. He was expelled from his Coolgardie Primary School for stealing money from a purse, and later expelled from high school after stealing a teacher's handbag. There were also problems at the Boulder Hostel because of his erratic behaviour and damage to property including the breaking of three windows.
Mr Manning ceased his schooling in 1990, and apart from some short term labouring jobs has never had any meaningful employment. He does not identify with any particular Aboriginal community and while not in prison has had a very itinerant existence, living rough without any stable accommodation. He has had only one significant heterosexual relationship (of three or four months duration when he was 24 years of age).
Mr Manning also has a history of poly‑substance abuse and probable dependence on illicit drugs over a number of years. In a pre‑sentence report presented to a South Australian court in 1994 (when Mr Manning was 19 or 20 years of age) he was described as a 'lost soul' with a severe alcohol problem. He had been banned from the Yalata Community because of his role as a ringleader in encouraging young Aboriginals to indulge in petrol sniffing. In later years Mr Manning went on to become an habitual and heavy user of cannabis as well as intravenous drugs including amphetamines.

Mr Manning's history of offending

Mr Manning has accumulated a significant record of offending in both Western Australia and South Australia. When he was 15 or 16 years of age he appeared in the Adelaide Children's Court a number of times for burglaries and other offences including property damage, graffiti, and use of a motor vehicle without consent. As a juvenile and young adult he was also dealt with in the Kalgoorlie Children's and Magistrates Courts for a variety of offences including burglaries, assaults, property damage and other offences of a disorderly nature. Between 1994 and 1996 he was back in South Australia where he had regular appearances in the Adelaide Magistrates Court for a similar range of offences (in respect of some of which he was sentenced to imprisonment). In 1996 Mr Manning also stood trial for rape but was convicted of an offence of indecent assault. The circumstances of that offence were that while drunk (with a blood alcohol content of .27%) he accompanied a 15 year old girl into an Adelaide city car park. He sexually assaulted her with some violence causing minor injuries. He was sentenced to a suspended term of imprisonment.
Mr Manning then returned to Kalgoorlie where he continued to accumulate convictions of a relatively minor nature (for some of which he received short terms of imprisonment). In 1997 he was also convicted in the District Court of an offence of robbery and sentenced to 21 months' imprisonment.
When Mr Manning was released from prison the same pattern of offending continued and in October 1999 he was also convicted of indecently dealing with a 10 year old girl. Mr Manning had approached the girl at an amusement arcade while drunk and put his hand down the front of her pants. He was sentenced to 189 days imprisonment. In the same month Mr Manning was sentenced to a separate term of 6 months' imprisonment for an offence of assault occasioning bodily harm.
In May 2001 Mr Manning was sentenced to terms of imprisonment totalling 7 years for one count of deprivation of liberty, two counts of aggravated sexual penetration without consent, and one count of attempted sexual penetration. The offences were committed in November 2000 in an underground car park in the central business district of Perth. Mr Manning had attacked a 26 year old woman while she was getting out of her car, fractured her nose, and committed acts of oral and vaginal penetration as well as attempted anal penetration. Mr Manning was intoxicated by alcohol and amphetamines at the time.
In June 2001 Mr Manning was sentenced to a cumulative term of 18 months' imprisonment for a separate offence of assault occasioning bodily harm. The circumstances of that offence were that Mr Manning had attacked a 54 year old woman in the public toilets of Supreme Court Gardens.
Following the expiration of the sentences imposed in 2001 Mr Manning has remained in custody pursuant to the continuing detention order the subject of the present review.

Mr Manning's psychiatric history

Mr Manning's early psychiatric history is not well documented. In 1997, when he was an inmate at Eastern Goldfields Prison, he was diagnosed with schizophrenia. Not long afterwards there was also a diagnosis of 'chronic psychotic disorder in the context of alcohol and marijuana abuse'. He was treated with long‑acting injectable (depot) medication while in the community, and with oral and depot anti‑psychotic medication while in prison. The management of this condition was complicated at times by his refusal to accept the prescribed medications.
Mr Manning's first admission to a psychiatric hospital was to the Frankland Centre between 10 and 21 June 2004. He was sent to the Frankland Centre from Acacia Prison following his violent assault on two prisoners and three prison officers while suffering auditory hallucinations and paranoia. In the course of that incident he had exhibited bizarre behaviour including 'covering himself with paint, dancing in the unit, singing loudly and smashing himself'.
The assessment at the Frankland Centre resulted in a final diagnosis of 'psychosis not otherwise specified', and Mr Manning was prescribed continuing medication.
In August 2004 Mr Manning was separately assessed by the consultant psychiatrist Dr Raymond Wu. Dr Wu confirmed the diagnosis of 'chronic psychosis, not otherwise specified' as well as an 'anti‑social personality disorder'. Nevertheless, it was Dr Wu's opinion that Mr Manning's past offending and violent behaviour were more related to his substance abuse than to his mental disorder.
In September 2005 Mr Manning was assessed by the consultant forensic psychiatrist Dr Ananth Pullela. In his report, Dr Pullela confirmed the previous diagnoses, and went on to state:
Mr Manning requires ongoing psychiatric supervision and monitoring, either prison or community based. The nature of the illness is such that he is likely to experience relapses in the future, especially if he becomes non‑compliant with the prescribed medication and/or if he resorts to illicit drugs once again, which are likely to escalate his risk of re‑offending in the future.
He has a severe Antisocial Personality Disorder with significant, entrenched and ingrained maladaptive patterns of behaviour with poor impulse control and poor coping strategies. These personal deficits are likely to impair his reasoning and judgment further compounding his risk of recidivism.
Between November 2005 and March 2006, Mr Manning was treated and assessed by a consultant psychiatrist with the State Forensic Mental Health Service, Dr Patchett. Dr Patchett was not certain as to the correct diagnosis. Although he believed that Mr Manning had an underlying psychotic disorder, he could not determine the extent to which it was related to a mental state, and how much was 'personality driven'. Dr Patchett considered that Mr Manning's presentation was 'very odd' and that he was something of 'an enigma'. In March 2006 Dr Patchett also discovered that Mr Manning had stopped taking his medication. However, there had been an improvement in Mr Manning's mental state, and the decision was made not to enforce his medication in future.
During 2007 Mr Manning was assessed by the two psychiatrists (Dr Adam Brett and Dr Mark Hall) appointed under s 14 of the Act for the purposes of the original application in the present proceedings. Dr Brett's psychiatric diagnosis was that:
Mr Manning has had clearly defined episodes of psychosis. These do not clearly fit in with any diagnostic category and is best described as chronic intermittent psychotic episodes.
Dr Brett also made the further diagnosis of a 'dissocial personality disorder'. Furthermore, he considered that Mr Manning would score 'in the severely impaired range on his global assessment of functioning'. (This deterioration in Mr Manning's intellect must necessarily have occurred subsequent to his schooling).
Dr Hall came to the same diagnosis as Dr Wu and Dr Pullela, namely 'psychotic disorder not otherwise specified' and 'anti‑social personality disorder'.
Dr Brett and Dr Hall both considered that Mr Manning was at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order. In that regard, Dr Brett's enumeration of the relevant risk factors included his observation that:
Mr Manning's personality structure is such that he will remain at chronic risk of reoffending both sexually and in a general nature.
Dr Hall's report stated that his assessment of risk essentially related to Mr Manning's:
[H]istory of sexual offending which has occurred in the context of as yet unaddressed factors. These factors are essentially substance abuse, poor coping skills, a lack of self‑awareness, and psychosocial instability. He has previously disclosed attitudes which may be predisposing to sexual violence and has failed to complete a sex offender treatment program. Furthermore, his untreated mental illness limits his capacity to progress with any therapy directed toward substance abuse, coping skills, or self‑awareness or attitudinal problems. He also has essentially no community support.
During early 2008 there was an apparent change in Mr Manning's mental state. He spoke infrequently, was extremely monosyllabic, and used very few words. He was unable to give any detailed responses to questions, and at times seemed confused and preoccupied. In this regard, on 29 April 2008, a mental health nurse reported the following:
Eric functions at a very basic level in the unit, does not socialise or interact with anyone (except on the very occasional and on a superficial and minimalist manner) and mostly keeps to himself while walking around the unit and yard. He does not work and has to be reminded to shower, but approaches staff for his needs like soap and spends and asks with monosyllabic whispers. He often covers his hair with soap and lets it dry, query why? There has been no recent untoward behaviour, including anger and hostility, but Eric is well known, complaint and is rarely challenged. Last episode occurred in 2006 when he swore violently, and in racist tones, to the officers when refused access to the gym.
He is softly spoken (whispers), monosyllabic with no spontaneous speech and drawn out silences. He presents with blunted affect, making appropriate eye contact but also staring into the distance frequently when asked a question, of which only a few were answered. He denies any psychiatric phenomenon but cannot describe his mood or thoughts. He does not want medication, although he didn't argue the point - just whispered 'no' a number of times. Although not acting bizarrely, he is unable to participate in any conversation, which is deterioration on previous interviews.
Mr Manning was admitted to the Frankland Centre once again between 10 and 30 June 2008. During that admission there was no evidence of psychosis but psychological testing showed that Mr Manning's intellectual functioning was in the extremely low range consistent with a mild intellectual disability. It was not possible to draw any conclusions as to the causes of this cognitive impairment.
Mr Manning was discharged from Frankland on no medication, and with a recommendation that he undergo further neuro‑psychological assessments. The author of the discharge report (Dr Jordan) stated that:
It is my opinion that a diagnosis of schizophrenia or another chronic psychotic illness is unlikely, but (as is often the case in such individuals) documented periods of previous psychosis remain inadequately explained.
In April 2009 Mr Manning was assessed by the consultant psychiatrist, Dr J R Jayawardana. Following that assessment, Dr Jayawardana expressed the following opinion:
Eric Manning could have had an active psychotic illness like schizophrenia in the past. The illness appears to be inactive at present. The usefulness of anti‑psychotics at this stage is a difficult issue. Forcing anti‑psychotics on him will probably reduce the quality of his life because of their side‑effects.
The social isolation he is showing could be a post schizophrenic state or due to intellectual impairment and personality developmental factors from his early experiences.
The very low IQ reported in the discharge letter of Frankland Centre would be an 'artefact' and its validity is questionable. He is intellectually impaired but the real IQ is probably higher than 61.
There is no doubt that it is extremely difficult to interact with him and engage him in any task. Obtaining informed consent for any special treatment appears to be impossible at present.
During April 2009 there was yet another assessment by Dr Marshall Watson, a psychiatric registrar at the Community Forensic Mental Health Service who had an indigenous background. Dr Watson carried out that assessment with the assistance of Mr Gary Williams (a cultural liaison officer with the Indigenous Mental Health Service, and a senior member of the Noongar community). Dr Watson found it very difficult to engage with Mr Manning but could find no signs of overt psychotic symptoms or thought disorders. It was the opinion of both Dr Watson and Mr Williams that there were no cultural factors which could explain Mr Manning's difficulties with communication.
Dr Brett has carried out two reassessments of Mr Manning for the purposes of each of the annual reviews. After each of these reassessments Dr Brett remained of the opinion that Mr Manning was at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order. In his report dated 20 April 2009 Dr Brett stated:
Given his documented mild intellectual impairment it is unlikely that Mr Manning would benefit from [an] ongoing sexual offender treatment program. If he were going to be managed by the Sex Offender Programs this would need to be tailored to his cognitive and cultural needs. It is difficult to predict how any interventions that could be given to Mr Manning would impact on his risk.
Following Dr Brett's reassessment for the purposes of the present review, he reported that Mr Manning's clinical presentation had not changed from the previous assessment. Mr Manning was monosyllabic and did not spontaneously converse. He was difficult to engage and apparently unable to be usefully involved in release planning.

Mr Manning's participation in treatment programmes

In December 2003 Mr Manning commenced a Medium Indigenous Sex Offender Treatment Programme at Acacia Prison. There were some doubts about his ability to participate in the programme because of his untreated mental illness, and his difficulties in understanding and expressing himself in English. Nevertheless, he was accepted into the programme because of his positive attitude towards participation.
Unfortunately, Mr Manning experienced difficulties with the programme for multiple reasons. He was confused about the purpose of sessions, frequently appeared not to understand what was happening, and did not fully accept responsibility for his offending. He was also frequently disruptive by lecturing the group about his Christian beliefs and expressing his opinion that he was superior to the others. As a result he became isolated from the other participants and often failed to involve himself in a meaningful way with group activities. Mr Manning did not complete the programme.

Subsequently, Mr Manning attended the prison counselling service intermittently between September 2004 and July 2006. However, by the time that his sentences of imprisonment expired he had not attended or completed any programmes, and his offending behaviour remained unaddressed.
However, Mr Manning has participated in further programmes after becoming subject to the continuing detention order. Between 13 July and 4 September 2009 he participated in the Displaced Indigenous Prisoners Programme at Casuarina Prison. This programme was designed in response to the increasing numbers of displaced indigenous men in the prison system. It attempts to collocate prisoners who have similar geographical and cultural origins, and provides them with the opportunity to support each other during their sentence. The programme also provides culturally appropriate activities, education, life skills and information.
As part of that programme Mr Manning participated in a 20 hour 'cognitive brief intervention' component between 17 July and 7 August 2009. Although Mr Manning seemed eager to attend this component of the programme he did not speak at any time throughout. It was later reported that he had demonstrated no evidence of understanding nor improvement in 'self‑control, impulsivity, critical reasoning, consequences, problem‑solving, perspective taking and relapse prevention'.
Although there are obvious difficulties in engaging Mr Manning in further programmes, a number of strategies have been tried. An attempt to engage him with members of the Aboriginal Visitors Scheme was unsuccessful. Between December 2009 and March 2010, a prisoner who had attended school with as Mr Manning was housed in the same unit. Although there was some degree of communication between the two men it was 'fairly superficial' and did not result in any change in Mr Manning's behaviour. There were also attempts to have Mr Manning communicate with relatives, but he was unwilling to cooperate.

The previous proceedings under the Act

At the hearing of the original application on 2 May 2008, it was conceded on behalf of Mr Manning, and McKechnie J found that he was a 'serious danger to the community' within the meaning of the Act. In deciding that a supervision order was not feasible, his Honour referred to the problems of the previous psychotic episodes, substance abuse, and lack of suitable accommodation in the community. His Honour went on to state:
Even if accommodation could be solved, there remains the need for the respondent to address his offending behaviour and that has not been done in anything but a superficial way. Whether that's because of his mental health issues or for some other reason really doesn't matter. The fact is that the respondent may remain in custody for a lengthy period unless, for whatever reason, he comes to terms seriously with his offending behaviour and makes serious attempts to address it so that the community could be satisfied that it is worth the risk of letting him reside again in areas where he may be in contact with young people (ts 82).
By the time of the first annual review of the continuing detention order on 5 May 2009 Mr Manning had not participated in any programmes and there was simply no basis on which a supervision order could be made. Jenkins J adjourned the proceedings to enable preparation of 'a management plan', and stated that it was 'important that everyone involved sit down and do some planning for Mr Manning before we just send him off to prison for another 12 months'.
When the hearing resumed on 10 June 2009 a management plan in the form of an 'assessment report' dated 28 May 2009 had been lodged on behalf of the Chief Executive Officer of the Department of Corrective Services. The elements of this plan included the following steps to be taken within 12 months:
(1)A thorough psycho‑social functioning assessment to gain further information relating to Mr Manning's intellectual deficits and 'functional adaptive skills'. It was anticipated this would assist in developing a detailed risk management plan which would be 'practical and specific to his needs'.
(2)Consultation with a psychologist, prison‑based community corrections officer, Aboriginal Visitors Scheme and peer support officers to progress release planning.
(3)Gradual 'release preparation' which would include Mr Manning's participation in the Displaced Indigenous Prisoners Programme, and re-establishing of his social supports.
(4)Preparation of a community option for Mr Manning's eventual return to a traditional community while under supervision. In this regard it was hoped to include 'gradual release options' facilitated by a reduction in Mr Manning's security rating and his relocation to Eastern Goldfields Prison.
On 10 June 2009, Jenkins J expressly declined to rescind the continuing detention order, and made the following comments:
Whilst the evidence discloses that, as Mr Manning's counsel concedes, Mr Manning continues to be at a high risk of committing a serious sexual offence if not subject to a continuing detention order or a supervision order, further, as none of his risk factors have been effectively addressed over the past 12 months and as Mr Manning has no place to live if he was released he appears unsuitable for release to the community at this stage.
On the first day of the hearing before me I directed the DPP to file a management plan detailing how the custodial authorities intended to ensure that if Mr Manning was not released at this review in the next 12 months there would be real progress towards his rehabilitation and hopefully his eventual release. Whilst clearly some steps have been made in the last 12 months to assess Mr Manning's problems, so much more needs to be done before Mr Manning will be able to be released that I wish to ensure that good progress or at least some progress is made in the next 12 months.
A management plan has been filed and it is now in evidence before me as exhibit 7. It does show that the authorities have strategies planned which will hopefully lead to Mr Manning's risk of reoffending if released being reduced at some point in the future. It is clearly in Mr Manning's and the community's interests that this plan be put into effect in the next 12 months.
In conclusion, Mr Manning is a complex case. There is no need for me to go into his background, which was considered by McKechnie J when he made the continuing detention order. It is sufficient for me to say that nothing has changed from when McKechnie J made his order which would justify me in rescinding the continuing detention order.
Clearly on the facts and evidence which were before McKechnie J and which continue to be before me the continuing detention order under the Dangerous Sexual Offenders Act is warranted. The court can only hope that the author of the management plan which is now in evidence is correct when she says in her final sentence, 'Prior to the 2010 Dangerous Sexual Offender Act (2006) Annual Review, it is anticipated that the department will have undertaken a number of strategies to move Mr Manning towards release, acknowledging his intellectual and social limitations, level of institutionalisation and respecting his cultural affiliations' (ts 25, 26).

The lack of progress since the last review

There has been very little progress in implementing the management plan approved by Jenkins J on 10 June 2009, and nothing has been achieved apart from Mr Manning's participation (during late 2009) in the Displaced Indigenous Prisoners Programme. Unfortunately, that participation does not appear to have resulted in any positive outcomes.
As Jenkins J noted on the first review, Mr Manning is a very complex case, and there are considerable hurdles standing in the way of achieving any progress with him. The fact that there are these difficulties makes it all the more important that there be urgent action to implement the management plan. The longer that these efforts are deferred, the less chance there will be of achieving any reduction in the risk of his future reoffending.
The biggest hurdle to be overcome is Mr Manning's inability or unwillingness to communicate. Prior to 2008 he had no difficulties with communication, and it is necessary to identify the reasons for this change so that the problem can be addressed. It seems to me that an obvious first step in this regard would be to arrange for the further neuro‑psychological assessments that Dr Jordan recommended two years ago.
Nevertheless, it is not for this court to suggest what particular programmes or assessments should be undertaken in respect of Mr Manning. All that the court can do is draw attention to the present unsatisfactory state of affairs, and to the need for urgent action.

Conclusions

For the above reasons I find that the respondent remains a serious danger to the community, and that he is not yet suitable for release into the community under a supervision order. Accordingly, I expressly decline to rescind the continuing detention order made by this court on 2 May 2008.