The Director of Public Prosecutions (WA) v Manning [No 5]
[2013] WASC 331
•3 SEPTEMBER 2013
THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANNING [No 5] [2013] WASC 331
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 331 | |
| 03/09/2013 | |||
| Case No: | MCS:6/2007 | 30 AUGUST 2013 | |
| Coram: | HALL J | 30/08/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Expressly declined to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) ERIC JOHN MANNING |
Catchwords: | Dangerous sexual offender Fifth annual review Whether respondent remains a serious danger to the community Whether detention order should continue Whether release appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33 |
Case References: | Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154 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 4] [2012] WASC 313 Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ERIC JOHN MANNING
Respondent
Catchwords:
Dangerous sexual offender - Fifth annual review - Whether respondent remains a serious danger to the community - Whether detention order should continue - Whether release appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33
Result:
Expressly declined to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant : Mr P D Yovich
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 Alvisse [No 6] [2013] WASC 154
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 4] [2012] WASC 313
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
1 HALL J: On 30 August 2013 the respondent, Mr Manning, appeared before me for the fifth 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 remained a serious danger to the community and that release into the community under supervision would not afford adequate protection at this stage. For those reasons I expressly declined to rescind the continuing detention order. The following are my reasons for coming to those conclusions.
Background
2 Mr Manning's personal history and history of offending have been summarised in previous decisions. See in particular, Director of Public Prosecutions (WA) v Manning [No 3] [2011] WASC 209 and Director of Public Prosecutions (WA) v Manning [No 2] [2010] WASC 220. It is sufficient to note that Mr Manning's criminal record includes a number of serious sexual offences and offences of violence.
3 The last of Mr Manning's sexual offences was particularly serious. On 4 May 2001 he 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 the whole of his sentence on 14 March 2007. Prior to that date the DPP made an application for a continuing detention order under the DSO Act. The order was granted and 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 prison. Over time he has become institutionalised. He is compliant with the rules and regulations of prison environment but has limited community supports. His ability to acquire social and vocational skills has been hampered by cognitive impairment and periods in which he has elected to become mute.
The previous review
6 The last annual review was undertaken by me on 27 August 2012: Director of Public Prosecutions (WA) v Manning [No 4] [2012] WASC 313. At that time Mr Manning was part way through an 18 month structured release programme. That programme consisted of three stages but progress appeared to have stalled at stage two.
7 The focus of the release plan was to assist Mr Manning in developing skills that he would require in order to manage a successful integration into the community. The plan had been explained to Mr Manning on several occasions and he had indicated that he understood. However, the depth of his understanding could not be assessed as his responses largely consisted of nods, shrugs and smiles.
8 At the time of the last annual review Mr Manning was at Karnet Prison Farm. He had remained at Karnet beyond the six month time period that was allocated to stage two of the release plan. This was because he had not met all of the requirements of that stage. Whilst he had adjusted to some of the additional self-management responsibilities required by inmates in a minimum security environment, he was considered to have made minimal progress in areas that were critical to community integration. These areas included engagement with a release planning process and his general communication ability.
9 During the previous review hearing I noted that Mr Manning had been born in Yalata in South Australia and spent his early childhood there. I queried whether this might explain the apparent difficulty relating to other Aboriginal people in the prison system. I also suggested that it might be appropriate to investigate whether Mr Manning would be more willing to communicate in his first language.
The present review
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. Dr Brett has had the advantage of assessing Mr Manning on previous occasions, including on the last annual review. Dr Brett noted that Mr Manning had made some progress in the last 12 months. He had become more verbal and willing to participate in group activities. In particular, he was an enthusiastic member of music groups. Dr Brett noted that Mr Manning's affect was now warmer and his communication was much improved. His speech was softly spoken and mono-syllabic however he was able to answer questions and his vocabulary had increased from just yes, no or shakes of the head. He smiled appropriately and appeared much happier.
13 In the past Mr Manning had suffered from psychotic episodes but there was no evidence of this when he was recently assessed. Dr Brett concluded that there was no evidence of any current major mental illness. However, it was noted, as it has been on previous occasions, that Mr Manning has impaired cognition, although the extent and reasons for that cannot be established.
14 At the time he was seen by Dr Brett, Mr Manning had been moved to the Bunbury Regional Prison where he was residing in the pre-release unit. The reasons for this were that his ability to progress further with the release plan were limited by the availability of resources at Karnet. It was considered that better progress was likely to be made at the Bunbury Pre-Release Unit.
15 Dr Brett conducted an assessment of Mr Manning's risk of re-offending by applying a number of well-known actuarial tests. These included the STATIC-99R instrument and the Risk for Sexual Violence Protocol (RSVP). As the name suggests, the STATIC-99R assesses risk based upon fixed historical factors. As these factors are unchanging the results produced by this instrument will not vary over time. Applying this instrument, Mr Manning is in a high risk category for sexual re-offending. The RSVP is a set of structured professional guidelines that involves the evaluation of 22 individual risk factors. The risk factors include sexual violence history, psychological adjustment, mental disorder, social adjustment, manageability and other considerations. Consideration of these factors also indicated a risk of re-offending. There were, however, some positive indicators.
16 Dr Brett noted that Mr Manning had a past problem of coping with stress. This had caused him to resort to using alcohol and drugs which, in turn, were connected to his offending behaviour. It was noted that Mr Manning now appeared to be better at managing stress. He had become warmer and more interactive. The reports from Karnet were extremely positive and he appeared to have coped well with the transfer to Bunbury.
17 Dr Brett said that substance abuse was a significant risk factor. This would need to be managed by monitoring, mentoring and ongoing education. Abstinence was the goal. There had been some efforts by Mr Manning to engage with substance abuse programmes and Alcoholics Anonymous in prison, however it was difficult to determine the extent to which this had been effective.
18 Dr Brett said that Mr Manning had a well-documented problem with planning. He had previously been unable to form a viable parole plan. More recently he has been unable to participate comprehensively with release plans. This probably relates to his cognitive impairment. A guardianship order had been raised as a possibility but it appeared that no assessment in this regard had been made.
19 Dr Brett said that Mr Manning appears to be ambivalent about his future plans and it is not clear whether he is capable of planning or whether he is worried about his future. He displays a number of features of institutionalisation. He is happy in his current environment where he does not need to make many decisions and appears safe. He has no supports in the community and no apparent aspirations for a life beyond prison.
20 Dr Brett concluded that whilst Mr Manning was progressing well through his management regime, his ability to transfer safely to the community may be limited. He needs a 'step down unit or transitional unit between prison and the community'. In essence, he would need to be released into a highly supervised and supported environment which would be alcohol and drug free.
21 Dr Brett concluded that Mr Manning remains a significant risk of sexual re-offending. Case management needed to be at the highest levels and earlier intervention should occur if his risk status changes. This would include any substance use or changes to Mr Manning's mental state. There was a difficulty in making assessments in that it was hard to access Mr Manning's inner world. However, Dr Brett was impressed by Mr Manning's progress and his improved mental state. This progress had been slow but steady. He was ready for transition into the community, though this depended upon a carefully monitored and managed release programme. It also depended upon the availability of suitable accommodation and support in the community.
22 A report was also received from Dr Dylan Galloghly, a clinical and forensic psychologist with the Dangerous Sexual Offender Psychology Team of the Department of Corrective Services. Dr Galloghly noted that attempts to achieve greater levels of communication had generally not been successful. The DSO psychology team was providing psychological consultation on a four to six weekly basis. Interaction at these counselling sessions was limited and much of the psychologist's work involved liaising with prison staff in regard to the structured release plan.
23 Dr Galloghly reported that Mr Manning had transferred successfully to the Bunbury Regional Prison Pre-Release Unit. He had been acquiring skills there in relation to cooking and budgeting. He was also participating in courses relating to obtaining his drivers licence, completing forms and using a computer. He had been engaged in work in the market garden and was assessed as working well independently. His interpersonal functioning remained limited and he generally stayed in his room every night and had minimal contact with other inmates. He had, however, been noted as interacting with another inmate with whom he had a shared interest in music. He was showing the ability to manage his time and understand his management plan.
24 Attempts have been made to engage with Mr Manning in his native language. Whilst he was at Karnet it was established that Mr Manning's primary native language was Wongi. He was visited by Pastor Samuel Dinah who was also able to establish that Mr Manning spoke a number of other Aboriginal languages. However, attempts to engage with him met with little success due to Mr Manning's wariness of strangers and tendency to withdraw. However, Pastor Dinah provided Mr Manning with a CD of songs in his native language which he was observed to enjoy. Pastor Dinah had also confirmed that Mr Manning had an aunt who lived in the metropolitan area. This aunt had been intending to visit Mr Manning before he was transferred to Bunbury.
25 Dr Galloghly concluded that Mr Manning had made small but significant gains over the last 12 months. He continues to require significant levels of support and any transition to the community will need to be highly structured and organised.
Conclusions
26 It is apparent from the reports, particularly that of Dr Brett, that Mr Manning remains a serious danger to the community. It is also apparent that whilst he has made progress in the last 12 months he is not yet at a stage where supervised release into the community is a viable option. There are no conditions that could be imposed that would reduce the risk of re-offending to an acceptable level. This was accepted by counsel who appeared for Mr Manning.
27 There are a number of positive signs. Mr Manning's willingness to communicate appears to have marginally improved. I note in this regard that he has shown an interest in and enjoyment of music. This may be an interest that could be further fostered as an avenue for encouraging communication and improved socialisation.
28 It has been noted that any release would have to be to accommodation that included elements of support and supervision. It is likely that Mr Manning would need assistance in managing his finances and negotiating the difficulties of daily life in the community. At the last annual review there was a suggestion that Mr Manning would be assessed as to his need for a guardian. It is unclear whether this would be done by the Public Advocate or the Disability Services Commission. Such an assessment has not occurred. This is unfortunate because the evidence indicates that Mr Manning is a man with a cognitive disability who has no family or friends to assist him.
29 It may be that the responsible authorities are unwilling to consider seeking a guardian in the absence of a definite release date. However, it will be difficult to conclude that Mr Manning is suitable for release without knowing that the necessary resources for the high level support that he needs are available. In these circumstances, I consider that it would be highly desirable for an assessment of Mr Manning to be made before the next annual review. A guardian may alleviate some of the difficulties Mr Manning would have in making decisions about his life and managing money.
30 One of the other impediments to release is the availability of suitable accommodation. That has been a recurring problem in cases of this type: See Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178. Mr Manning is not yet at the stage where release into the community is a realistic consideration. However, if he continues to make progress that must be a possibility at the next annual review. It is understood that some efforts are being made by the Department of Corrective Services to improve accommodation options for people in Mr Manning's position. It is to be hoped that those options are in place by the time of the next annual review.
31 Notwithstanding the progress that has been made, Mr Manning is not yet at a stage where his risk of re-offending can be sufficiently managed or minimised such as to make it appropriate that he be released into the community on conditions. Accordingly, at the hearing of this review I expressly declined to rescind the order for continuing detention pursuant to s 33(2) of the DSO Act.
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