The Director of Public Prosecutions (WA) v Manning [No 7]
[2016] WASC 99
•1 APRIL 2016
THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- MANNING [No 7] [2016] WASC 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 99 | |
| 01/04/2016 | |||
| Case No: | MCS:6/2007 | 31 AUGUST 2015 | |
| Coram: | CORBOY J | 31/08/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Respondent remains a serious danger to the community Continuing detention order not rescinded | ||
| B | |||
| PDF Version |
| Parties: | THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) ERIC JOHN MANNING |
Catchwords: | Dangerous sexual offender Seventh 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 |
Case References: | 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 The Director of Public Prosecutions v Manning [No 6] [2015] WASC 3 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ERIC JOHN MANNING
Respondent
Catchwords:
Dangerous sexual offender - Seventh 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Continuing detention order not rescinded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 Markham
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
The Director of Public Prosecutions v Manning [No 6] [2015] WASC 3
- CORBOY J:
The result of the seventh annual review
1 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) (DSO Act).
2 The seventh annual review of the continuing detention order was held on 31 August 2015. 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.
3 These are my reasons for making those orders.
The continuing detention order and past reviews
4 The circumstances in which the continuing detention order was made have been summarised in The Director 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 and the circumstances of his offending were summarised in The Director of Public Prosecutions v Manning [No 5] [2013] WASC 331 and The Director of Public Prosecutions v Manning [No 6] [2015] WASC 3. There was no issue raised in the review concerning the accuracy or adequacy of the summaries contained in those decisions. Accordingly, I have had regard to the summaries for the purpose of conducting this annual review.
The respondent's mental health
5 The respondent's personal circumstances were summarised in Manning [No 2] and Manning [No 3]. Again, there was no issue raised in this review concerning the accuracy or adequacy of the summaries contained in those decisions. I have had regard to those summaries for the purpose of obtaining an understanding of the respondent's personal circumstances and history.
6 The respondent has a significant history of polysubstance abuse and 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 and 2008 and he has been psychiatrically assessed on other occasions.
7 The respondent has been consistently diagnosed as suffering from a psychotic disorder, although there has been some difficulty in further characterising the nature of his psychosis. He has experienced auditory hallucinations and other symptoms of paranoia and has exhibited bizarre behaviours on occasions. Psychological testing indicates that his intellectual functioning is impaired. He has spent the majority of the last 20 years in prison and has become institutionalised. He has limited community support and his ability to acquire vocational skills has been hampered by cognitive impairment and periods during which he has elected to remain mute. Those matters concerning the respondent's history are not controversial. They were outlined in Manning [No 5].
The previous annual reviews
8 In Manning [No 6] I summarised the previous annual reviews of the continuing detention order made in respect of the respondent. I especially noted the position at the time of the fifth annual review conducted by Hall J in August 2013. There had been some positive developments in the 12 months prior to the review; in particular, the respondent appeared better able to manage stress and had made some effort to engage with substance abuse programmes.
9 Psychiatric reports from Dr Adam Brett and Dr Peter Wynn Owen were received for the purpose of the sixth annual review. The effect of their reports was summarised in Manning [No 6]. In particular, I noted that there had been improvement in the respondent's communication skills, but he had displayed features of institutionalisation and was ambivalent about his future plans. Dr Brett considered that the respondent's ability to safely transfer to the community presented problems because of the degree of institutionalisation and the respondent's significant mental health history, compounded by substance abuse. Psychological testing indicated the possibility of an autism spectrum disorder, and both he and Dr Wynn Owen agreed it would be beneficial for the respondent to be further assessed for the presence of that disorder. That would assist those who were responsible for the respondent's management to better understand his behaviour.
10 Dr Brett and Dr Wynn Owen considered that the respondent presented a high risk of serious sexual offending if he was released to the community unsupervised. There was some difference in opinion between Dr Brett and Dr Wynn Owen as to whether that risk could be managed in the community. However, there was little difference between them as to the extent of the supervision and management that would be required if the respondent was to safely transition to living in the community. In effect, the respondent would require continuous monitoring and supervision if he was released to the community. There was no facility available that could provide that level of supervision.
The present review
The psychiatric reports
11 Following the sixth annual review, Dr Brett was requested by the Department of Corrective Services (Department) to clarify whether the respondent suffered from an autism spectrum disorder. A diagnostic review was undertaken using the DSM-5 criteria for the disorder.
12 Dr Brett noted that there were limitations on his ability to make a diagnosis - there was no accurate early history documenting the respondent's childhood and adolescent development; the diagnosis was made more difficult because of the respondent's cognitive impairment and culture and his institutionalised lifestyle had impacted on his communication and behaviour. Subject to those limitations, Dr Brett concluded that the respondent met only some of the criteria for autism spectrum disorder. The respondent clearly had deficits in social communication and interaction, but they were more likely related to his cognitive impairment, his impoverished upbringing and his cultural background than to the presence of an autistic disorder. Self-evidently, those deficits impacted on the management of the respondent.
13 Dr Wynn Owen provided a further psychiatric report for the purpose of the annual review. He concluded that the respondent continued to exhibit very limited understanding of his offending and that a range of cognitive deficits impacted on his ability to understand his behaviour or to learn new coping and self-management skills. The respondent was motivated to be released to the community and had engaged in therapy and demonstrated a sustained improvement in the quality of his communication. However, there was no indication that he had the capacity to recognise risk and to self-manage in the future. Accordingly, Dr Wynn Owen concluded that the respondent continued to present a high risk of serious sexual offending if released unsupervised.
14 Dr Wynn Owen noted in his report that the respondent had received psychological counselling since the last annual review, and that mental health/comorbidity nursing reviews indicated that the respondent's presentation remained stable with no overt evidence of mental illness.
Other reports
15 A report was received from Dr Tara Yewers, counselling psychologist with the Department. Dr Yewers concluded that the respondent had made some progress in the past year in his capacity and willingness to communicate and with his engagement in counselling and treatment programmes. He had also made 'small gains' in acknowledging a link between his alcohol use and offending. However, his plans for risk management were rudimentary and undeveloped and he was not inclined to address issues related to his offending. The difficulties encountered in psychological counselling with the respondent and the gains that have been made since about 2013 are fully recorded and explained in Dr Yewers' report.
16 Dr Yewers expressed several opinions in her report concerning the extent to which the respondent understood the causes and nature of his offending and his limited capacity for risk management (pars 27 - 32 and 35). I accept those opinions.
17 The community supervision assessment undertaken by the Department indicated that the respondent had been transferred from the Bunbury Regional Prison to Karnet Prison Farm on reattaining minimum security classification at about the time of the last annual review. The transfer was consistent with the Department's structured release plan for the respondent (which was developed at the time of the respondent's annual review in 2011). Dr Yewers explained in her report that the respondent had been transferred from Bunbury Regional Prison to Karnet Prison Farm to provide the respondent with a 'less routine-oriented environment which would test his independent and adaptive behaviour functioning in a setting that is more similar to the community' (par 17).
18 The community assessment report indicated that the Department proposed to continue with phase 3 of the structured release plan if the respondent was not released to the community. That would involve continuing with counselling under the supervision of the forensic psychological service and providing the respondent with some vocational activities. The present status of the release plan, including the involvement of the Office of the Public Advocate, was fully outlined in the assessment report. It is not necessary to summarise that part of the report but I have noted what is discussed under the heading 'Proposed community supervision plan' and in the concluding section of the report.
Conclusion
19 The psychiatric report of Dr Wynn Owen, together with the psychiatric and medical reports provided for previous reviews and the other reports received for this annual review, establishes that the respondent remains a serious danger to the community. In my view, those reports also establish that the community would not be adequately protected if the respondent was released pursuant to a supervision order. I noted in my decision on the sixth annual review that the respondent would require constant supervision and management if he was to be released and the community was to be adequately protected. That position has not changed. The accommodation and other resources required for such intensive management are not presently available in the community.
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