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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANNING [No 6] [2015] WASC 3

CORAM: CORBOY J

HEARD: 29 AUGUST 2014

DELIVERED : 29 AUGUST 2014

PUBLISHED : 5 JANUARY 2015

FILE NO/S: MCS 6 of 2007

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

Catchwords:

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

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 33

Result:

Respondent remains a serious danger to the community
Continuing detention order not rescinded

Category: B

Representation:

Counsel:

Applicant: Mr S O'Sullivan
Respondent: Mr D McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd

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

The Director of Public Prosecutions v Manning [No 2] [2010] WASC 220
The Director of Public Prosecutions v Manning [No 3] [2011] WASC 209
The Director of Public Prosecutions v Manning [No 5] [2013] WASC 331
CORBOY J:

The result of the sixth annual review

On 2 May 2008, McKechnie J made an order for the continuing detention of the respondent. His Honour made that order on finding that the respondent was a serious danger to the community and that it was necessary for the respondent to be detained in custody to ensure that the community was adequately protected: s 7 and s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act).
The sixth annual review of the continuing detention order was conducted on 29 August 2014. I made a finding at the review hearing that the respondent remained a serious danger to the community. I expressly declined to rescind the order on being satisfied that it was necessary for him to remain in custody to ensure the adequate protection of the community. Orders and declarations were made pursuant to s 33 of the DSO Act. These are my reasons for making those orders and declarations.

The continuing detention order and past reviews

The circumstances in which the continuing detention order was made have been summarised in past decisions: see, in particular, TheDirector of Public Prosecutions v Manning [No 2] [2010] WASC 220 and The Director of Public Prosecutions v Manning [No 3] [2011] WASC 209.

The respondent's criminal history

The respondent's criminal record includes a number of serious sexual offences and offences of violence. He was first convicted of a sex offence in October 1999 – indecently dealing with a 10‑year‑old girl. He was convicted in May 2001 of deprivation of liberty, aggravated sexual penetration (two counts) and attempted sexual penetration (the circumstances of the offences were summarised by Hall J in The Director of Public Prosecutions v Manning [No 5] [2013] WASC 331 [3] ‑ [4]). The respondent was sentenced to 7 years' imprisonment.
The respondent was subsequently convicted in June 2001 of assault occasioning bodily harm. He attacked a woman in the public toilets of the Supreme Court Gardens.

The respondent's mental health

The respondent's childhood and adolescence were summarised by Blaxell J in Manning [No 2]. He was raised in an environment characterised by violence and neglect. He was made a ward of the State of South Australia at the age of 6 or 7 years and was subject to a number of foster placements. Murray J considered that the respondent's mental health problems stemmed from 'an appalling history of rejection and mismanagement': Manning [No3] [34].
The respondent has a significant history of polysubstance abuse. He was diagnosed in 1997 with schizophrenia and 'chronic psychotic disorder in the context of alcohol and marijuana abuse'. He was admitted to the Frankland Centre in 2004 following a violent assault on other prisoners and prison officers. He was experiencing auditory hallucinations and other symptoms of paranoia and was exhibiting bizarre behaviours.
The respondent was psychiatrically assessed at various times between 2005 and 2007. He was consistently diagnosed as suffering from a psychotic disorder, although there was some difficulty in further characterising the nature of his psychosis.
The respondent was again admitted to the Frankland Centre in 2008. Psychological testing performed at the time indicated that his intellectual functioning was impaired. His mental state appeared to have altered – he was withdrawn, unwilling to engage and mute. However, there were no overt signs of psychosis – and see Manning [No 3] [33] and [39] (Murray J).
Hall J noted in completing the fifth annual review of the continuing detention order in August 2012 that the respondent had spent the majority of the last 20 years in prison and had become institutionalised. Consequently, he had limited community supports and his ability to acquire vocational skills had be hampered by cognitive impairment and periods during which he had elected to remain mute: Manning [No 5] [2] ‑ [5]. There was no evidence of psychosis or mental illness on being assessed for the review: Manning [No 5] [13].

The previous reviews

Jenkins J conducted the first annual review in June 2009. Her Honour indicated that a management plan should be prepared for the purpose of preparing the respondent for a supervised release to the community.
The second annual review was conducted by Blaxell J. His Honour expressed disappointment at the lack of progress in devising and implementing a management plan for the respondent, particularly given the complex nature of his personal circumstances.
A structured release plan had been prepared by the time of the third annual review conducted by Murray J in August 2011. The plan involved three stages. The respondent was making slow progress on the plan when Hall J conducted the fourth annual review in August 2012. His progress on the plan was determined by a combination of his institutionalisation and cognitive impairment and concern for his future. There was a doubt about his ability to manage independently in the community and it was likely that he would require supervised accommodation and care if he was to be released.
Hall J also conducted the fifth annual review. His Honour received and considered a psychiatric report from Dr Adam Brett and a psychological report from Dr Galloghly for the purpose of the review.
The respondent had been transferred from Karnet Prison Farm to Bunbury Regional Prison since the previous review. As has been noted, he had in the past elected to remain mute and his ability to acquire social and vocational skills had been hampered by cognitive impairment. Dr Brett noted in his report that the respondent had made some progress in the 12 months prior to review. He had become more verbal and was willing to participate in group activities. His communication was much improved and he had not suffered from any psychotic episodes. There was no evidence that he was still suffering from a major mental illness. However, his cognition remained impaired.
Dr Brett considered that the respondent remained at a high risk of sexual reoffending, although some positive indicators were noted. He appeared to be better able to manage stress and had made some effort to engage with substance abuse programs. Dr Brett acknowledged that it was difficult to make assessments about the respondent's mental state since it was hard to 'access [the respondent's] inner world' (Manning [No 5] [21]). However, the respondent's mental state had shown some improvement.
Dr Galloghly reported that the respondent had transferred successfully to the Bunbury Regional Prison pre‑release unit. The respondent had acquired additional skills and had demonstrated an interest in music.
Hall J concluded that there had been positive developments in the 12 months prior to August 2013. However, the respondent had not progressed to a point where his supervised release into the community could be considered. His Honour commented that:
It has been noted that any release would have to be to accommodation that included elements of support and supervision. It is likely that [the respondent] 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 [the respondent] 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 [the respondent] is a man with a cognitive disability who has no family or friends to assist him [28].

The present review

Counsel for the respondent conceded at the commencement of the review hearing that the respondent remained a serious danger to the community. However, he did not concede that the continuing detention order should remain. It was accepted, nevertheless, that the primary purpose of the review hearing was to 'canvas what is possible for the future' for the respondent given that he presented with a 'complex set of problems' that required 'a complex solution' (ts 141).

The psychiatric reports

The book of materials tendered for the purpose of the review (exhibit 1) included psychiatric reports from Dr Peter Wynn Owen and Dr Brett. They each provided further evidence at the review hearing.
Dr Brett's report contained a comprehensive summary of the respondent's psychiatric history; an analysis of his past sexual offending; an assessment of his risk of sexually re-offending utilising well known actuarial instruments and models (the STATIC‑99R, the three predictor model and the risk for sexual violence protocol); comments on psychological and other problems that impacted on the risk of the respondent sexually offending and his management and supervision to ameliorate that risk; and observations on his case management to date.
It is not necessary to canvass the detail of Dr Brett's observations on each of those matters, having regard to the body of information concerning the respondent's continuing detention that has been accumulated and recorded in past reviews. It is sufficient to note the following matters identified by Dr Brett in his report concerning the respondent's present position:
(a)The respondent's communication skills have continued to improve and he has responded well to activities that he enjoys, particularly music groups. He is progressing well through his management regime.
(b)However, the respondent displays features of institutionalisation and is ambivalent about his future plans. His ability to transfer safely to the community presents problems. That is not only because of the degree of institutionalisation, but also because the respondent has a significant mental health history compounded by substance abuse. There has been improvement in his mental state.
(c)There was a significant risk that the respondent would commit a serious sexual offence if he were not subject to a continuing detention or supervision order. He has a propensity to commit serious sexual offences in the future and has a pattern of serious sexual offending. However, the respondent was ready to be transitioned to the community, subject to suitable accommodation and support being arranged. Significant support would be required for the respondent to remain safely in the community; it was not clear how the respondent would manage if he were left to his own devices.
Dr Brett explained in his oral evidence that the respondent suffered from some cognitive impairment, and a psychological assessment that had been undertaken by Dr Galloghly indicated the possibility of an autism spectrum disorder. That could explain the respondent's communication difficulties. A formal diagnosis for autism required reviews by a psychologist, a speech therapist and a paediatrician or psychiatrist. Dr Brett considered that it would be desirable for the respondent to be further reviewed to ascertain whether he suffered from autism spectrum disorder (ts 145).
Dr Brett confirmed in his oral evidence that the respondent would require special accommodation that provided continuous supervision and management if he was to be released to the community. He would not be able to function independently in the community. There was no facility of that kind available in Western Australia, and Dr Brett was unable to envisage the respondent being able to function in the community in a safe manner in the near future in the absence of appropriate accommodation (ts 149).
Dr Brett thought that the respondent might qualify for financial and other assistance through the Disability Services Commission if it was determined that he suffered from an autism disorder. Funding might provide for his care and supervision. Dr Brett reiterated that the respondent would require continuous supervision and appropriate accommodation where he could be securely managed. He would require therapeutic and other services. Dr Brett did not consider that the risk of the respondent sexually offending could be sufficiently ameliorated by simply fitting a GPS tracking device (ts 153).
In his report, Dr Wynn Owen also canvassed the respondent's psychiatric history; his psychiatric diagnosis and risk of reoffending; factors relevant to managing his risk of sexual offending and his management since the previous annual review.
Dr Wynn Owen concluded that the respondent presented a high risk of serious sexual offending if he was released to the community unsupervised. He did not consider that the risk of the respondent offending had diminished since the previous annual review. He considered that the respondent showed limited understanding of his offending behaviour, and that psychological and neuro‑psychological testing indicated that this was probably as a result of cognitive deficits that adversely affected his ability to understand his behaviour or to learn new coping and self‑management skills. It was difficult to assess his motivation to change due to his communication difficulties.
In his oral evidence, Dr Wynn Owen stated:
This is someone who finds it difficult to interpret communication at the best of times, particularly non‑verbal communication, and has described a smile or a - or catching the eye of a woman as an invitation to sexual intercourse. He is also somebody who, if he has an impulse to act on his libido, will want to act on that and will not think about the consequences. So, clearly, that could translate in a very, very short time into an offence. That risk would be increased if he were intoxicated, because his likelihood of acting impulsively without thought of consequence and without thought of others would be greater (ts 159).
Dr Wynn Owen agreed that the respondent would require a 'highly structured environment' and his transition would require 'extremely careful' management if he was to be released from custody. That was because of his cognitive deficits and the extent to which he had become institutionalised.
Dr Wynn Owen agreed that it would be beneficial for the respondent to be further assessed for the presence of an autism spectrum disorder. That would assist those who were responsible for the respondent's management to better understand his behaviour.

Other reports

Exhibit 1 contained a report from Mr David Summerton, psychologist, Forensic Psychological Services. Mr Summerton summarised the treatment that had been provided to the respondent since the last annual review. In particular, Ms Vuletich had undertaken a neuro‑psychological assessment. That had led Dr Galloghly to speculate about the possibility of autism. Dr Galloghly had also conducted some counselling sessions, but the respondent remained isolated within the prison and had difficulties in participating in programs designed to enhance his skills. Dr Galloghly had reported that the respondent had made little progress in the past 12 months apart from some improvement in his communication.
Mr Summerton advised that the respondent's treatment would continue to be overseen by the Forensic Psychological Service and it was intended to resume fortnightly counselling. The focus of the counselling would be on the respondent's communication and on the causes of his offending. Mr Summerton noted that in the past 12 months problems had, on occasions, been experienced with the respondent's interaction with prison staff and other prisoners. His behaviour could be impulsive and threatening.
Exhibit 1 also incorporated a community supervision assessment undertaken by Ms Suzanne Lush, Senior Community Corrections Officer at the Bunbury Community Corrections Centre. The primary purpose of the assessment was to report on the supervision and management of the respondent since the last annual review, and to provide information to the court relevant to the formulation of a supervision order if it was decided that the continuing detention order should be rescinded. The assessment report confirmed that the respondent was not considered to be suitable for the Dangerous Sexual Offender's Supported Accommodation Program conducted by OutCare because of the complexity of his requirements. Continuous supervised accommodation was not available through the program. Ms Lush advised that a limited guardian had been appointed since the last review through the Office of the Public Advocate.
A copy of the report provided by Ms Vuletich concerning the respondent's neuro‑psychological assessment was tendered at the review hearing (exhibit 2). Ms Vuletich concluded that the respondent suffered from a cognitive impairment at such a level as to raise significant concerns about his decision‑making capacity and his ability to participate and self‑advocate. In her opinion, the respondent was not able to make reasonable decisions in relation to lifestyle and health and had only limited insight into the potential impact of his long‑standing institutionalisation and lack of familiarity with the activities necessary to maintain an independent lifestyle. He was incapable of managing decisions about his personal finances and his lack of budgeting and other life skills made him vulnerable to antisocial and aggressive behaviour.

Conclusion

In my view, the psychiatric reports received for the purpose of this annual review of the respondent's continuing detention order clearly establish that the respondent remains a serious danger to the community. The reports and the other material received also establish that the community would not be adequately protected if the respondent was released pursuant to a supervision order. The respondent would, at present, require constant supervision and management if he was to be released and the community was to be adequately protected. As this court has noted on several occasions in relation to other offenders, the accommodation and other resources required for such intensive management are not presently available in the community.
It would, in my view, be desirable for the respondent to be further assessed for the possibility of an autism spectrum disorder. That may assist in better understanding and managing the respondent's complex presentation.