The Director of Public Prosecutions v Manning [No 3]
[2011] WASC 209
•19 AUGUST 2011
THE DIRECTOR OF PUBLIC PROSECUTIONS -v- MANNING [No 3] [2011] WASC 209
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 209 | |
| 19/08/2011 | |||
| Case No: | MCS:6/2007 | 17 AUGUST 2011 | |
| Coram: | MURRAY J | 17/08/11 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Continuing detention order not rescinded | ||
| B | |||
| PDF Version |
| Parties: | THE DIRECTOR OF PUBLIC PROSECUTIONS ERIC JOHN MANNING |
Catchwords: | Criminal law and procedure Dangerous sexual offender Third annual review of continuing detention order Introduction of structured release plan Discussion of timing of applications for review Otherwise turns on own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 29, s 30, s 33 |
Case References: | Director of Public Prosecutions v Manning [No 2] [2010] WASC 220 The State of Western Australia v Alvisse [No 4] [2011] WASC 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ERIC JOHN MANNING
Respondent
Catchwords:
Criminal law and procedure - Dangerous sexual offender - Third annual review of continuing detention order - Introduction of structured release plan - Discussion of timing of applications for review - Otherwise turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 30, s 33
Result:
Application allowed
Continuing detention order not rescinded
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Category: B
Representation:
Counsel:
Applicant : Ms Petrusa
Respondent : Mr D J McKenzie
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Mr D J McKenzie
Case(s) referred to in judgment(s):
Director of Public Prosecutions v Manning [No 2] [2010] WASC 220
The State of Western Australia v Alvisse [No 4] [2011] WASC 85
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- MURRAY J:
The proceedings before me
1 The respondent is a person subject to a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), s 17. The proceedings before me were the third annual review of that order upon the application of the Director of Public Prosecutions (DPP), made pursuant to s 29 of the Act.
2 That section, in a case like this where there have been a number of reviews, requires a review to be carried out as soon as practicable after the end of the period of 1 year, commencing when the detention was most recently reviewed.
3 The review is carried out under s 33:
33. The review
(1) When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
4 The application to review the detention of the respondent came on for hearing first on 13 June 2011, but it was unable to be dealt with on that day because the threshold step of considering whether the court should find that the respondent remains a serious danger to the community could not, on the materials then before the court, be dealt with.
5 Consideration of that question is governed by s 7 of the Act. Section 7(1) and (2) provide:
7. Serious danger to the community
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- (1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
7 For the review, I was provided with reports of various kinds, and evidence was given by Dr Brett, a consultant psychiatrist, Ms Marley, a clinical psychologist who is the principal psychologist in the Department of Corrective Services dangerous sexual offenders psychologist team, and Mr Bohun, the senior community corrections officer in the community and youth justice section of the Department of Corrective Services, who is stationed at Albany. The evidence of these witnesses was given when the review was conducted on 17 August 2011. I found that evidence and the other materials which significantly supplemented the materials before the court on 13 June to be of considerable value in dealing with the review.
8 As can be seen from s 7(1) and (2), the DPP has the onus of satisfying the court that the respondent, Mr Manning, remains a serious danger to the community, within the meaning given to that term by s 7(1). Section 7(2) provides that that onus may be discharged by acceptable and cogent evidence to a high degree of probability. Section 33(1) provides that if I cannot make the finding that the respondent subject to the continuing detention order remains a serious danger to the community, I must rescind the order.
9 Had I proceeded to finalise the matter on 13 June, having regard to the state of the materials then before me, I could not have made the
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- relevant finding, and therefore I would have discharged the order and Mr Manning would have been released. I acceded to the request of the DPP that the proceeding be adjourned and, as I have said, when the review came on to be finally dealt with on 17 August, it was upon the basis of much additional and highly significant evidence.
10 In the event, I did find that Mr Manning remains a serious danger to the community, within the meaning of the Act. Guided by the requirement in s 33(3), that the paramount consideration was the need to ensure adequate protection of the community, I then turned my attention to whether, under s 33(2), I should decline to rescind the order or, alternatively, rescind the continuing detention order and make what the Act describes, in shorthand terms, as a supervision order. I declined to rescind the continuing detention order, and Mr Manning remains in custody accordingly. These are my reasons for taking that course.
The history of the respondent's offending
11 There is some uncertainty about the respondent's date of birth. He was born in South Australia on either 20 December 1974 or 20 December 1975. Mr Bohun is making an inquiry for a birth certificate in South Australia. In the meantime, the authorities here appear generally to accept 20 December 1974 as the date of birth. On that basis, he is 36 years old.
12 His WA criminal record dates back to 1992. It commences with convictions in the Kalgoorlie Children's Court when he was aged 17. Thereafter there are regular convictions. There are some violent offences, offences of dishonesty, public nuisance offences; initially relatively minor offences, but escalating in seriousness until, in May 1997, he was sentenced to 21 months imprisonment in the District Court for robbery. During periods when Mr Manning was back in South Australia, the offending continued there.
13 The respondent's first conviction for a sexual offence occurred in South Australia in 1996. He was convicted of indecently assaulting a 15-year-old girl. He was very drunk at the time. In 1999, he was convicted in the District Court in Kalgoorlie of indecently dealing with a 10-year-old girl by putting his hand down the front of her pants at an amusement arcade. Again, he was very drunk.
14 For present purposes, the important convictions were sustained in the District Court on 4 May 2001, when he was convicted of one offence of deprivation of liberty, one offence of attempted sexual assault and two
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- offences of sexual assault. The sentences for all these offences were ordered to be served cumulatively, but backdated to 6 November 2000.
15 The victim was a 26-year-old woman who was attacked in an underground carpark in Perth. She was subjected to acts of oral and vaginal penetration, and attempted anal penetration. Again, Mr Manning was intoxicated by alcohol and amphetamines. He was sentenced to an aggregate term of 7 years imprisonment with eligibility for parole.
16 On 22 June 2001, the respondent was again convicted in the District Court of assault occasioning bodily harm, an offence committed upon a 54-year-old woman in the public toilets in the Supreme Court Gardens. A term of 18 months imprisonment was imposed, to be served cumulatively.
17 Finally, in the Midland Court of Petty Sessions, on 30 November 2001, Mr Manning was convicted of assaulting a public officer. It matters not, for present purposes, what the circumstances were, but a cumulative sentence of 6 months and 1 day imprisonment was imposed. The aggregate term was therefore one of 9 years imprisonment from 6 November 2000. In addition, it seems that a further 67 days was to be served in default of the payment of fines.
18 Under the sentencing system as it then operated, in respect of the aggregate term of a little over 9 years and 2 months, with eligibility for parole in relation to the sentences passed by the District Court, Mr Manning became eligible to be released on parole 2 years before the two-thirds time. His earliest eligibility date for release on parole was 30 May 2005. He applied for parole, and the grant of parole was deferred until parole was finally denied, requiring Mr Manning to serve a term which was two-thirds of the aggregate of the sentences which had been imposed upon him. He was then entitled to be discharged from service of the sentences on 14 March 2007.
Earlier DSO Act proceedings
19 However, in view of the application by the DPP for orders under the Act, he was not released on that date, but was held on an interim detention order until McKechnie J, after a protracted hearing process, finally determined the application by the DPP by making a continuing detention order on 2 May 2008. I have read the reasons delivered ex tempore by McKechnie J at that time. It is very evident that the delay in dealing with the matter was caused by efforts to determine whether, and if so under what conditions, Mr Manning could be released on a supervision order.
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- In the end, for pragmatic reasons, his Honour was reluctantly driven to the conclusion that a continuing detention order must be made.
20 The first review of that order, under s 33, was made by Jenkins J. On 10 June 2009, her Honour declined to rescind the continuing detention order. Again, in reasons delivered ex tempore on that date, her Honour expressed her disappointment at the lack of progress in bringing Mr Manning to the point where he might be able to be released into the community. Her Honour directed the provision of a management plan, setting out in detail how the authorities intended to work towards achieving some progress in the respondent's rehabilitation. The plan was filed. Her Honour accepted its suitability, and expressed the hope that some real progress would be made in the next 12 months.
21 She concluded the proceedings by talking to Mr Manning directly. She advised him to cooperate as fully as he might with the experts who would be assigned to deal with his case and would seek to progress his rehabilitation. She got no response because, in fact, Mr Manning was, by then, substantially mute, a condition to which I shall return shortly.
22 The second review of the respondent's continuing detention therefore fell to be made as soon as practicable after 10 June 2010. That review was, in fact, conducted on 11 June 2010 by Blaxell J, who again declined to rescind the continuing detention order. His Honour published reasons for that conclusion: Director of Public Prosecutions v Manning [No 2] [2010] WASC 220.
23 Again, his Honour commented upon the lack of progress since the review conducted by Jenkins J. He said:
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
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- 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 [46] - [49].
The result of the respondent's incarceration
24 When the matter came before me on 13 June 2011, I made the same observations. Again there had been little progress. A new approach was clearly required, mainly to break through the difficulty created by what is described as Mr Manning's elective mutism. He remains as he has been, effectively, since 2008. Prior to that time he spoke readily. Thereafter, he has progressively retreated into a mute condition. He speaks but rarely, although he can speak, and has been observed to speak more readily to other prisoners than to staff members and people like community corrections officers, psychologists and psychiatrists like Dr Brett.
25 By elective mutism is simply meant there is no organic or physical impediment to Mr Manning's power of speech. He simply chooses not to speak, and when I say he chooses not to speak, I do not mean to imply that the choice is necessarily consciously made.
26 However, he does communicate, and Mr Bohun, to whose efforts I shall shortly return, said in evidence that, although in his frequent contacts with the respondent he does not have what could be described as a conversation, there is a capacity, by asking a series of what Mr Bohun appropriately described as closed questions, to elicit information from the respondent as to his desires, his needs and his thoughts generally.
27 As I understand it, if you ask Mr Manning whether he would prefer to live in Kalgoorlie or Albany you will get no response. However, if you ask him whether he would like to live in Kalgoorlie, as Mr Bohun did, you get a response; perhaps not an oral response, but a readily understandable response; in the case of Kalgoorlie, a negative response. If you ask him whether he would like to live in Albany, as, again, Mr Bohun did, you will get a favourable response.
28 Before I come to discuss what seem to me to be the centrally important considerations affecting this review and my decision upon it, I wish to record, in the briefest summary, the result of the perfectly proper
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- application of the criminal law, the sentencing process and the DSO Act, in Mr Manning's case.
29 He committed serious sexual offences within the meaning of the Act. He was in custody on remand from 6 November 2000. When he was sentenced, the sentences were backdated. When he became eligible for parole, parole was initially deferred and then finally denied. When he became entitled to be discharged, having served the term of imprisonment imposed, he was held, under the Act, initially on an interim detention order, from 14 March 2007 until McKechnie J made a continuing detention order finally on 2 May 2008.
30 It is from about that time that Mr Manning's mutism became more and more pronounced. Was that a conscious or subconscious withdrawal from engagement with a system which he considered was failing to deal fairly with him? If so, is it surprising that he has difficulty in exposing himself to a system which has detained him for a period of over 3 further years, punctuated only by periodic appearances before judges who bemoan the lack of progress in achieving his rehabilitation?
31 Mr Bohun prepared a schedule which I received in evidence as an adjunct to his report (exhibit 16A). It shows that since the respondent's 18th birthday, he has been in prison in SA and WA for a total of 5,843 days, equivalent to 835 weeks, or a little over 16 years. He has been at liberty for a total of 635 days, just short of 91 weeks, or a little over 1 year and 9 months.
32 He is, in my opinion, as thoroughly institutionalised as he could be. He is a model prisoner. He knows the rules and he obeys them. Encouragingly, he has indicated to Mr Bohun that he is keen to be released and to stay out of prison. However, he lacks any understanding about what he must do to achieve that result.
The respondent remains a serious danger to the community
33 That was the opinion of Dr Brett initially provided in exhibit 10, his report dated 20 May. Dr Brett refers to past psychotic episodes, but, for a considerable period more recently there has been no evidence of psychosis. The respondent is not taking any prescribed medication. Dr Brett doubts that there is any recognised mental illness such as schizophrenia, but the tests administered reveal significant risk factors in relation to the danger of the commission by the respondent of sexual offences.
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34 Dr Brett accepts that the respondent has significant mental health issues. I find, consistently with Dr Brett's opinion, that that is the case, and they stem from an appalling history of rejection and mismanagement of the respondent's youth and upbringing. He was rejected by his mother, who was an alcoholic. When he was placed in foster care at Yalata Aboriginal Community in South Australia that failed. He was not accepted by the Aboriginal community there, although he was fostered there for some years. He was ultimately ejected from that community. He was brought to Western Australia where he had relatives in country remote from Kalgoorlie, but he could not establish a rapport and an acceptance within that community.
35 When he has been at liberty he has lived rough with no fixed place of abode. His problems have been compounded by the damage that he has done to himself by significant alcohol abuse and the abuse of illicit drugs.
36 Dr Brett explained that, until the respondent could be brought to understand and deal with the psychological issues which were related to his offending, a process which has not been effectively dealt with, the respondent would remain at risk of reoffending sexually.
37 As I understood Dr Brett's evidence, the respondent is more prone to reoffend under the influence of alcohol, a continuing problem when he is at liberty, and the stress of his incapacity to establish a reasonably supportive lifestyle in the community.
38 In my opinion, upon the evidence, particularly that of Dr Brett and the psychologist, Ms Marley, it is likely that, arising out of his past and his childhood of deprivation, the respondent has a hatred of women. His sexual offending, particularly that which has caused his present incarceration, may be punitive in its motivation, rather than reflecting unhealthy and inappropriate sexual interests. If that is so, the risk of reoffence will remain high, as Dr Brett and Ms Marley believe it to be, until that can be dealt with.
The remedy
39 While Mr Manning remains selectively mute, capable of communicating with authority figures only by monosyllabic responses to direct questions, at best, it will be quite impossible to engage him in a clinical or therapeutic psychological treatment program. On the evidence before me, such a program, to have any prospect of success, would need to be by way of individual counselling and not a program conducted in a group setting. That has been tried and it failed because the respondent
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- perceived himself to be so different from the others involved in the program that it had no relevance for him.
40 Given that difficulty, there are, however, recent indications of a breakthrough. Rather than attempt therapeutic intervention, the prison and community corrections authorities, working together, have attempted to actively involve Mr Manning in a program directed to giving him the capacity to take greater control over the ordinary processes of living and to reduce the stress involved in solving problems in daily life when they arise.
41 In my opinion, this is a change of emphasis and approach which is already, a mere 2 months after its implementation, showing signs of progress, and I accept that it is appropriate to endeavour to equip the respondent with the capacity to avoid the commission of further serious sexual offences by teaching him how to cope with life's ordinary stressful events, rather than initially attempting to pursue a therapeutic intervention.
42 When the matter first came before me on 13 June, the respondent was still at the Eastern Goldfields Regional Prison, to which institution he had been transferred in an attempt to improve his engagement with processes which might assist in his rehabilitation and, in particular, in an attempt to put him in contact with relatives and other members of what was perceived to be a community of relevance to him in the area east of Kalgoorlie. The placement was unsuccessful in that respect because Mr Manning rebuffed attempts to put him into contact with such people.
43 However, some gains were made. The respondent developed a limited capacity to engage in prison employment. He regularly participated in sporting activities. He seemed to take an interest in playing the guitar. Art supplies were provided to him. The respondent was established to have adequate understanding and cognitive capacities, but he was still very socially isolated and remained substantially mute. Exhibit 9 is a useful progress report, of which the author is a Ms Collyer, a senior counselling psychologist. The document is co-authored by Ms Marley, the principal psychologist.
44 Following the hearing before me on 13 June, it was decided to take a different tack in an attempt to achieve adequate resocialisation of this offender and to reach the point where he might, with some confidence, be released into the community. On 27 June, the respondent was transferred to Albany Regional Prison where he would have available a greater range
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- of activities within the prison. He would also have access to support mechanisms with the assistance of the community and youth justice section of the Department of Corrective Services in Albany.
45 The senior community corrections officer there, Mr Bohun, became personally involved in the effort. His report, dated 26 July 2011, provides a detailed overview of what has occurred and what has been achieved (exhibit 16). Mr Bohun was able to expand upon that in evidence, and he was therefore able to bring the court up to date with what has occurred in the short period of about 2 months which has been involved.
46 Having regard to the fact that, as I think to be the case, the respondent has been brought to a state where he lacks the capacity, at present, to himself initiate a program directed towards his resocialisation and rehabilitation, Mr Bohun and his team within the Corrective Services Department and the prison have achieved much.
47 They are not yet in a position to be able to embark upon a one-on-one program of therapeutic intervention with the assistance of a psychologist. That will ultimately be desirable, indeed essential, to enable the respondent to obtain insight into the causes of his sexual offending and to equip him with the capacity to control his propensity to offend. As part of that process, particularly once he is released into the community, it will be important to treat the respondent's tendency to alcohol and drug abuse, and to provide supervision directed to monitor a requirement that he remain abstinent from the use of alcohol and illicit drugs.
48 However, the thrust of the program presently being employed, as I understand it, is to equip the respondent with the life skills which will enable him, once released into the community, to maintain a stable home environment, to interact with other members of the community, to have satisfying and interesting activities to perform, whether on a voluntary basis or in paid employment, and to be able to make the multitude of decisions which confront all of us in our daily lives. This is a man who requires training about household budgeting, shopping, keeping appointments and the like.
49 There is a long way to go, but a start has now been made. The respondent is a regular and enthusiastic participant in the activities of the workshop under the directions of the prison's vocational support officer. He learns skills quickly, and he can tell the inquirer what he is doing. It is planned to commence him in a cooking course.
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50 The respondent is now looking forward to his ultimate release from prison into the community, and he has expressed his determination to stay out of prison once that occurs. He has been able to indicate where he would wish to live, and that enables consideration to be given to what accommodation and employment prospects there may be, including placing him on the relevant Department of Housing waiting list.
51 Investigations are being made with Centrelink to see whether, and in what form, Mr Manning might ultimately be provided with income support in the form of a disability support pension or otherwise. Mr Bohun and his team are dealing with other agencies which might provide assistance in making possible the respondent's effective transition from prison into the community. It is unnecessary, for the purposes of this judgment, to discuss those matters in detail. As I have said, there is a detailed discussion, which was amplified in evidence, of what is going on and what is proposed in Mr Bohun's report, exhibit 16.
52 It is sufficient that I say that I approve what is being done by way of active intervention in Mr Manning's case. It seems to me to offer a realistic prospect that, ultimately, to the benefit not only of Mr Manning, but also the community, it may be possible for him, for the first time in his life, to be able to live in the community free of the danger that he might commit further serious sexual or other offences.
A structured release plan
53 It will be an important feature of a program to fit the respondent for release into the community under the terms of a supervision order that adjustments should be made as to his placement in a way which will necessitate an adjustment of his current medium security rating. Officers of the Department of Corrective Services are governed, in that regard, by Adult Custodial Rule 18, a rule made pursuant to powers conferred by the Prisons Act 1981 (WA). A person subject to continuing detention under the DSO Act is a particular category of prisoner, in respect of whom the application of cl 9.3.7.5 of the Rule dictates a maximum or medium security rating.
54 However, under cl 9.3.7.6, such prisoners may be approved for a minimum security rating and placement, with the attendant greater capacity for supervised and other forms of release into the community when a release preparation plan, requiring placement in a minimum security setting, has been approved by the Supreme Court.
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55 In this case, a structured release plan to facilitate the treatment and training program to which I have referred has been prepared by Mr Collins, the assistant superintendent at the Albany Regional Prison, with input from Mr Bohun. The document was received in evidence as exhibit 17. I will not here set out the relevant terms of the plan, but I should describe its main features.
56 It is comprised of three stages. Each is proposed to take six months to complete, but it is important to note that they are indicative periods only, subject to modification depending upon the respondent's rate of progress. The first period is his placement at the Albany Regional Prison and his involvement there in activities of the kind currently being undertaken, which I have described above. They are directed to improve his vocational skills and life skills, to build up his confidence, his capacity for work, and to encourage his resumption of verbal communication and his openness to engage in programs which are designed for his benefit and which, if he succeeds in them, will fit him to move on to the next stage of the plan.
57 The second stage involves his placement at Karnet Prison Farm, a minimum security prison. The proposal is to assist the respondent to achieve a capacity to cope with the added responsibility and freedoms associated with the status of a minimum security prisoner. Placement at Karnet will not only give him the opportunity to continue with programs of the kind commenced at Albany, but also will put him in reach of the prison counselling service and the sort of psychological assistance which may be offered by Ms Marley and the psychologists who work with her.
58 The third stage of the plan would see the respondent return to the Albany area with a placement at Pardelup Prison Farm, again, a minimum security prison, from which, it would be hoped, the respondent would ultimately secure his release into the community. He has indicated, in his limited way, that Albany is a place where he would like to live and, as I have said, Mr Bohun has already commenced to put inquiries in place with agencies in that region which may be able to offer support for Mr Manning generally in the community, and particularly to secure and maintain a stable place of residence for the first time in his adult life.
59 I approve the plan, understanding that it incorporates the flexibility to be adjusted as required to accommodate Mr Manning's achievements and the period of time that he takes to reach them. It is important, in my view, that the plan I approve have that flexibility. The speed with which he progresses depends upon Mr Manning's capacity to make gains,
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- assisted by the skilled professionals with whom he would work. It will be important that, having made a gain, he is not left to stagnate at a particular stage of the program, but that he is assisted to move on.
60 Ultimately, his placement in the community for a period of time will be subject to controls and supervision under a properly conditioned supervision order.
Future reviews
61 In The State of Western Australia v Alvisse [No 4] [2011] WASC 85, I had occasion to discuss the powers of the DPP to apply for a review of a prisoner's continuing detention under s 29, and the offender's power to make such an application under s 30, which allows him to apply with the leave of the court, which may be granted if the court is satisfied that there are exceptional circumstances that relate to the prisoner. In Alvisse, I said:
There is an automatic review applied to that order on the application of the DPP on an annual basis under s 29 of the Act, but I repeat the interpretation, which I have previously expressed, that that section is concerned to provide the frequency within which a review must take place. There is, in my opinion, no impediment to the DPP applying to the court for the detention to be reviewed earlier than after a year, when it is thought to be appropriate to do so.
Further, I have previously expressed the view, which I now repeat, that the respondent, the person subject to the continuing detention order, may seek the leave of the court to apply for the detention to be reviewed if it is felt that there is evidence to support the conclusion that the continuing detention order should be rescinded and a supervision order made.
In my opinion, s 30 of the Act would allow that to happen at that time on the ground that, although by s 30(2) exceptional circumstances relating to the person the subject of the continuing detention order are required before leave may be granted, it would be a circumstance of that character that the offender has made such progress that his continuing detention is no longer required, but that adequate protection of the community could be provided by an appropriately conditioned supervision order [27] - [29].
62 It can be seen that the proper administration of the DSO Act in a case such as this, where the needs of the offender are so complex, requires a considerable coordinated effort by a range of experts and professionals within the Department of Corrective Services and consulted by that Department.
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63 Properly interpreted, the DSO Act recognises that in the case of dangerous sexual offenders, the primary aim is to ensure adequate protection of the community against the commission of further serious sexual offences. The Act recognises that it is only if it is necessary to achieve that object that continuing detention of an offender after service of the sentence imposed by the court, is justified. The Act recognises that the best guarantee of safety for the community is to achieve the rehabilitation of the offender, and thereby to prevent recidivism.
64 This case, in my opinion, whatever be the final outcome, provides a good example of what is required to be done in the proper administration of the Act. Counsel for the DPP and the respondent, who appeared before me, both expressed this view and undertook to monitor the case closely. I agree with their approach and accept their undertaking.
65 It is for the above reasons that I expressly did not rescind the continuing detention order, but allowed it to continue, subject to regular and timely review.
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