JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANNING [No 4] [2012] WASC 313 CORAM : HALL J HEARD : 27 AUGUST 2012 DELIVERED : 27 AUGUST 2012 PUBLISHED : 31 AUGUST 2012 FILE NO/S : MCS 6 of 2007 BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) Applicant
AND
ERIC JOHN MANNING
Respondent
Catchwords:
Dangerous sexual offenders - Fourth annual review - Whether remains serious danger to the community - Whether detention order should continue - Whether supervised release appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33
Result:
Expressly decline to rescind continuing detention order
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr J Mactaggart
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):DPP v Manning (No 2) [2010] WASC 220DPP v Manning (No 3) [2011] WASC 209
(Page 3)
Background 1 On 27 August 2012 the respondent, Mr Manning, appeared before me for the fourth annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). On that date I made a finding that Mr Manning remains a serious danger to the community and I expressly declined to rescind the continuing detention order. The following are my reasons for those conclusions.
2 Mr Manning has a criminal record in this State dating back to 1992. His personal history and history of offending has been summarised in previous decisions. See, in particular, DPP v Manning (No 3) [2011] WASC 209 and DPP v Manning (No 2) [2010] WASC 220. For present purposes it is sufficient to note that Mr Manning's criminal record includes a number of sexual offences and offences of violence.
3 In particular, on 4 May 2001 Mr Manning was convicted of one offence of deprivation of liberty, one offence of attempted sexual assault and two offences of sexual assault. The victim in that case was a 26-year-old woman who was attacked in an underground car park in Perth. She was subjected to acts of oral and vaginal penetration and attempted anal penetration. For these offences Mr Manning was sentenced to an aggregate term of 7 years' imprisonment with eligibility for parole. Other cumulative sentences for less serious offences were also imposed.
4 Parole was denied and Mr Manning was due to be released after serving his sentence on 14 March 2007. Prior to that date the DPP made an application for a continuing detention order under the DSO Act. Mr Manning has been detained pursuant to that order since that time.
5 Mr Manning has spent the vast majority of the last 20 years in prisons. It is clear that over time he has become institutionalised. He is compliant with the rules and regulations of a prison environment but has few, if any, community supports and limited social and vocational skills. Over time these problems have been compounded by the fact that Mr Manning has elected to become mute.
Previous Reviews
6 The first annual review of the detention order was made by Jenkins J on 10 June 2009. At that time her Honour expressed disappointment at the lack of progress that had been made in bringing Mr Manning to the
(Page 4) point where he might be able to be released into the community. Her Honour directed that a management plan be prepared setting out in detail how the authorities intended to work towards Mr Manning's rehabilitation.
7 The second annual review was conducted on 11 June 2010 by Blaxell J. His Honour noted that there had been very little progress in implementing the management plan. His Honour said that Mr Manning's case was a very complex one and that there were considerable hurdles standing in the way of achieving any progress. His Honour said that these difficulties made it all the more important that there was urgent action to implement the management plan. He noted that the longer that the efforts were deferred the less chance there would be of achieving any reduction in the risk of future re-offending. Blaxell J said that the biggest hurdle to overcome was Mr Manning's inability or unwillingness to communicate. 8 The third annual review took place before Murray J on 17 August 2011. At that time his Honour noted that a structured release plan had been prepared. That plan comprised three stages each of which was intended to take six months to complete. The first stage involved activities at Albany Regional Prison which were directed to improve Mr Manning's vocational and life skills, build up his confidence and his capacity to work and encourage his resumption of verbal communication. The second stage involved placement at Karnet Prison Farm, a minimum security prison. The intention was that the second stage would involve providing Mr Manning with opportunities to take increased personal responsibility and to continue with the programmes commenced at Albany. The third stage is to move Mr Manning to Pardelup Prison Farm in order to prepare him for release into the community. This would include identifying a secure and stable place of residence. Murray J approved the plan but noted that it needed to have flexibility because the speed with which Mr Manning would progress between stages would depend upon his capacity to learn new skills. His Honour noted that it was important that, having made a gain, Mr Manning was not left to stagnate at a particular stage of the programme but was assisted to move on.
The Present Review
9 As will be evident, the structured release programme was always envisaged to take at least 18 months to complete. In those circumstances it was unlikely that Mr Manning would be at a stage that made him suitable for release by the time of the fourth annual review. Nonetheless,
(Page 5) the review is a statutory requirement: s 29 DSO Act. It also provided a useful opportunity for assessing Mr Manning's progress.
10 On a review of this nature the court is required to rescind the continuing detention order unless it finds that the person remains a serious danger to the community: s 33(1) DSO Act. If the court finds that the person remains a serious danger to the community the court may either expressly decline to rescind the continuing detention order or rescind the order and make an order that the person be released on conditions into the community: s 33(2) DSO Act. 11 In deciding whether a detention order should continue or the person should be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
12 A report of a psychiatrist, Dr Adam Brett, was prepared for the purposes of this review. That report, which is dated 8 August 2012, notes that Mr Manning is proceeding reasonably, though slowly, through the structured release plan. Dr Brett thought that the slow progress was likely to be due to a combination of institutionalisation, limited cognition and concern about the future. Dr Brett said that Mr Manning's ability to manage independently in the community remained questionable. There were indications that Mr Manning had difficulty in self-management and would need external factors to assist him in this regard.
13 Dr Brett noted that Mr Manning's accommodation needs are difficult. Ideally he should have supervised care in the community. Dr Brett was unaware of any facilities that could currently provide the level of care that Mr Manning requires.
14 Dr Brett concluded that Mr Manning remains a significant risk of sexual re-offending. Risk factors include potential substance abuse and changes in his mental state. Dr Brett noted difficulties in accessing Mr Manning's inner world due to his unwillingness to communicate.
15 Whilst Dr Brett considered that Mr Manning was ready to proceed with his structured release plan he did not believe that the risk of re-offending could be safely managed in the community at this stage. Dr Brett said that he believed Mr Manning has a sensible management plan and that his response to less structure and more independence was being assessed, but this was a slow process.
(Page 6)
16 A dangerous sexual offender treatment progress report dated 9 August 2012 was also provided for the purposes of this review. That report noted that whilst Mr Manning had successfully completed stage 1 and had been transferred to Karnet Prison Farm on 28 February 2012, he had not yet progressed beyond stage 2. The report notes that the focus of the structured release plan is to assist Mr Manning in developing skills he will require in order to manage successful integration into community living. The plan has been explained to Mr Manning several times and he has indicated that he understands. However, the depth of his understanding cannot be assessed as his responses have largely comprised nods, shrugs and smiles.
17 Currently Mr Manning remains at Karnet Prison Farm beyond the six month time period that was allocated to Stage 2. This is because he has not met all of the requirements of that stage. Whilst he has adjusted to some of the additional self-management responsibilities required by inmates in a minimum security environment he is considered to have made minimal progress in areas that are critical to community integration. These areas are his engagement in his release planning process and his general communication. His attendance at alcohol abstinence programmes has also reduced in an environment where compliance is voluntary.
18 It would appear that whilst some progress has been made in encouraging Mr Manning to communicate, his level of communication remains very limited. This makes it difficult for the professionals who are dealing with him to determine whether he has an appropriate plan for his release into the community. It is also difficult to assess the extent to which he has learned the skills necessary to make any plan effective. Some progress was made by engaging a private consultant in training and development who utilised the Rickter Scale of Assessment and Evaluation. As I understand it, this is a communication tool which encourages people to use numbers to provide responses to more complex questions. Whether this has produced any lasting or significant benefits is difficult to say, but I note that the sessions in this regard appear to have taken place in January 2012 when Mr Manning was at Albany Regional Prison.
19 During the hearing of this review I asked whether any attempt had been made to engage with Mr Manning in his native language. The papers indicate that Mr Manning was born in Yalata in South Australia and spent his early childhood there. Whilst there is nothing to indicate one way or the other whether his first language was an Aboriginal dialect,
(Page 7) this seems to be a possibility that is worthy of investigation. It may explain why Mr Manning has had apparent difficulty relating to other Aboriginal people in the prison system. It would certainly be appropriate for the authorities to investigate other ways in which Mr Manning's communication difficulties might be overcome.
20 The progress report concludes by saying that Mr Manning has demonstrated adequate adjustment to a minimum security prison but that he has failed to demonstrate any willingness to be actively involved in preparation and planning for his release. The report states that until Mr Manning engages voluntarily in his release planning as well as with basic treatment options designed to support his abstinence from substances upon release, he should not be progressed to the final stage. As the report notes, even with the strictest supervision and monitoring requirements and significant practical support Mr Manning will still need to self-manage to some degree if he is released into the community. 21 I also note that the treatment report refers to the possibility of release into fully supervised care as an alternative option. A community supervision assessment report prepared for this review states that the Office of the Public Advocate has an interest in Mr Manning in order to determine whether he needs a guardian or administrator appointed to him upon his release. Mr Manning was visited by a senior investigator advocate from the Office of the Public Advocate on 3 July 2012 but no final conclusion has been reached as to whether a guardian or administrator should be appointed.
Conclusion
22 At the hearing of the review it was conceded on Mr Manning's behalf that he remained a serious danger to the community and that he was not yet at the stage where the risk of re-offending could be properly or adequately managed in the community. In these circumstances there was no option other than to continue the existing detention order.
23 Some progress has been made by Mr Manning in achieving the requirements of the structured release plan. However, that progress has slowed and difficulties with communication have presented a barrier to further advancement with the plan. The reasons for Mr Manning's unwillingness or inability to communicate have never been determined. It may be difficult, if not impossible, to do so. Whatever the reasons, it is clear that every effort should be made to find ways to overcome this obstacle if there is to be any real possibility of release into the community.
(Page 8)
24 Pursuant to s 33(2) of the DSO Act I expressly decline to rescind the continuing detention order.