The State of Western Australia v Manning [No 9]
[2019] WASC 112
•4 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MANNING [No 9] [2019] WASC 112
CORAM: HALL J
HEARD: 3 APRIL 2019
DELIVERED : 3 APRIL 2019
PUBLISHED : 4 APRIL 2019
FILE NO/S: DSO 6 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ERIC JOHN MANNING
Respondent
Catchwords:
Dangerous sexual offenders - Review of continuing detention order - Whether offender remains a serious danger to the community - Whether the detention order should be affirmed or a supervision order made - Availability of accommodation and community support
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29 and 33
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr M B Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Manning [No 8] [2017] WASC 6
HALL J:
(This judgment was delivered extemporaneously on 3 April 2019 and has been edited from the transcript.)
This is the ninth review of a detention order made on 2 May 2008 in respect of the respondent, Eric Manning, pursuant to s 29 and 33 of the Dangerous Sexual Offenders Act 2006 (WA) ('the Act'). The detention order was last reviewed by Corboy J in 2016 in DPP v Manning [No 8].[1] Since the last review Mr Manning has been convicted of an assault offence which occurred in prison and for which he received a 6‑month prison sentence. This has resulted in this review being put back to take into account that sentence.
[1] Director of Public Prosecutions (WA) v Manning [No 8] [2017] WASC 6.
Relevant Principles
On a review, the court must determine whether a person who is the subject of a continuing detention order remains a serious danger to the community. If the person is no longer a serious danger to the community the court must rescind the detention order. If the court finds that the person remains a serious danger to the community it must either affirm the detention order, or rescind the order and make an order that the person be released into the community, on such conditions as the court considers appropriate, on a supervision order.
The purpose of the review process is to allow for the possibility of changes in circumstances. If circumstances change such that the risk of reoffending reduces, or can be better managed in the community, the need for continuing detention must be considered. In making a decision as to whether a person who is a serious danger to the community should continue to be detained or should be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community. The court cannot make a supervision order unless the offender satisfies the court on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order.
Evidence on this Review
Mr Manning's history of offending and personal history has been set out in judgments in previous reviews. The sexual offences that are the basis for the order occurred between 1999 and 2001. He served a term of imprisonment for those offences and, since 2008, has been detained under the Act. During that long period Mr Manning has had a period where he was an elective mute. In more recent times he has engaged better with counselling and prison work opportunities.
For the purposes of this review the State tendered a book of materials which included, amongst other records, a psychiatric report by Dr Peter Wynn Owen, a treatment progress report by Dr Ben Bannister and a community supervision assessment by Mr Kyle Jarvie. Each of those persons was called to give evidence and they largely confirmed in oral evidence what was said in their reports.
Dr Peter Wynn Owen
Dr Wynn Owen noted that whilst Mr Manning had previously been diagnosed with psychosis, he does not currently report any symptoms, and there was no evidence of psychosis when interviewed. There are some features of antisocial personality disorder, which is associated with a general risk of future offending, but Mr Manning is well below the diagnostic threshold for psychopathy. Dr Wynn Owen's diagnosis is that Mr Manning has a substance use disorder ‑ which is in remission, antisocial personality disorder and a mild intellectual impairment or borderline intellectual functioning.
The cognitive impairment was examined in some detail in 2014 when a neuropsychological assessment was undertaken. Dr Wynn Owen notes that that assessment found that Mr Manning has significant difficulty with verbal functioning, cognitive processing and with limited working memory. He was considered as being unable to make reasonable decisions about his lifestyle and health. He struggled to retain relevant information, consider options, appreciate consequences and make consistent decisions. Doubts were expressed in that report about his ability to live and manage independently.
Dr Wynn Owen undertook a risk assessment utilising the Static‑99R actuarial tool. Mr Manning's score in this regard remains unchanged and he is in the category of well above average risk for further sexual offending. Because Mr Manning is difficult to treat due to his impairments he falls into a cohort of high‑risk and high‑needs offenders. Offenders in this cohort with the same score as him had a 25.7% likelihood of sexual reoffending within five years and a 37.3% likelihood of such offending within 10 years. Dr Wynn Owen also used the RSVP‑structured clinical framework to assess a range of risk factors. This identified a number of factors known to increase the risk of sexual offending, a range of issues that need to be addressed and a number of problems with manageability.
Dr Wynn Owen's conclusions are that Mr Manning is a man with cognitive deficits, language and communication problems and who is institutionalised to a significant extent and has not developed the skills for independent living. His understanding of his offending behaviour is limited and has not changed over the period of his detention. Treatment and counselling has been of limited benefit.
If he were to be released into the community, Dr Wynn Owen considers that Mr Manning would require significant support to assist with day‑to‑day living. Ideally, such support would be 24 hours, seven‑days‑a‑week, in supported residential care. This level of support would best suit risk‑mitigation. The support would need to be on a 24‑hour basis, unless any breach of a curfew would be met by an instant response. Mr Manning would also require ongoing counselling, assistance in establishing a social network and a framework for ensuring abstinence from alcohol.
Dr Ben Bannister
Dr Bannister is a forensic psychologist who has reviewed Mr Manning's treatment. In his report he notes that after the last review a structured release plan was prepared and inter‑agency stakeholder case management meetings were established. There have been three such meetings to date: on 9 April 2018, 20 August 2018 and 4 February 2019. There has been some improvement in the respondent's engagement with his counsellor, but the view is that progress in counselling has likely reached its potential due to his level of cognitive function.
Mr Manning had been given three main targets to work towards after the last review, which were finding rewarding work, improving his socialisation and self‑care. These objectives had suffered setbacks when prison incidents resulted in Mr Manning being moved from a lower security prison. There were subsequently other incidents of assault, which resulted in loss of privileges, and a charge, which I have referred to earlier. Despite this, Dr Bannister's view is that overall progress has been positive since Mr Manning was first placed on the detention order in 2008. However, his ability to gain from treatment is limited. It is unreasonable to expect that he will make further significant treatment gains in the future. As to the three targets, Mr Manning has not been able to achieve these to any lasting effect. His prison behaviour suggests some possible deterioration in self‑management.
Mr Kyle Jarvie
Mr Jarvie in his report sets out a summary of Mr Manning's prison behaviour, engagement in work activities and options for release. I have already noted that there have been incidents of violence in prison. As to work, Mr Manning has been willing to work and motivated to do so, but has responded negatively on occasions to attempts to assist him, and this has resulted in him losing his employment, on the last occasion in October 2018.
As to options for release, Mr Manning meets with a case worker from Uniting Care West on a roughly monthly basis. However, he is not considered suitable for the DSO supported accommodation program because his support needs are beyond what that program can offer. It is possible that accommodation could be considered by Uniting Care West if another service provider could give the extensive support needed; but in any event, no accommodation is presently available.
Mr Manning has been assessed for support from the National Disability Insurance Scheme ('NDIS'). A support plan has been approved, but it is limited to support coordination. In essence, this means 40 hours by a case worker to:
… [liaise] with stakeholders, departments and agencies to identify and link [Mr Manning] with appropriate care and support … to transition him into the community and maintain his future independence and wellbeing.
Mr Jarvie's report also states that, on 19 March 2019, the NDIS service provider appointed to Mr Manning had requested an urgent review by the National Disability Insurance Agency ('NDIA'). The NDIA had advised that a planner would be assigned on an urgent basis and would complete a review. It is understood that this would cover whether additional funding will be provided for supported independent living. There is no information as to when this review will be complete, or how much funding could be available. Until it is known whether the NDIS will cover funding for the necessary level of support, Mr Jarvie says it is impossible to meaningfully explore accommodation options. As I have noted, there are no such options available presently in any event.
Furthermore, even if funding is provided, there is uncertainty as to whether it would be sufficient to adequately mitigate the risk of reoffending, and there would then also have to be a process of finding a service provider who would provide the support required. The process, as I understand it, is that the present review being undertaken by the NDIA would be finalised at some point. If the application for supported independent living is approved, there would then need to be a process by which quotations were sought from service providers. If a quotation was provided and agreed, there would then be a need to explore accommodation options for Mr Manning.
Findings
Turning then to my findings in respect of this matter. There is no doubt that Mr Manning remains a serious danger of committing further serious sexual offences. The evidence of Dr Wynn Owen regarding the degree of risk is not disputed.
The real issue is whether release on a supervision order is viable. The only realistic option is if the respondent could be placed in a residential facility with essentially continuous care and support, or at least in a residence where he would have such support on a 24‑hour basis. His cognitive deficits and lack of basic living skills make it unreasonable to think that he could cope with independent living. Without support of the intensive sort described, it is likely that he would become dysfunctional, that his behaviour would break down, and the risk of offending would become unacceptable.
Mr Manning does not have the means to provide the level of support needed and does not have family or social networks in the community. His only realistic hope for release is if the support he needs is supplied by a government agency. The NDIS appears to be a possibility in this regard, but unlike some other cases that I have dealt with, the involvement of the NDIA is surrounded by uncertainty as to whether and how much it can provide by way of funding.
Furthermore, without secured funding and established support, accommodation cannot be explored. In any event, there is no accommodation presently available on the DSO supported accommodation program.
The end result is that it is clear that release on a supervision order is not a viable option at this time. Furthermore, there is insufficient information available to say whether there is any realistic prospect of that changing in the near future. That compels a conclusion that the continuing detention order must be affirmed.
I must, however, express a concern that I have about this and, indeed, other matters. The approach of a review date often causes an increase in activity surrounding a detainee. Options are explored and plans put forward, but a resolution is not reached by the review date. Too often this results in the review being adjourned. Sometimes this could have been avoided by a more timely approach. Where the liberty of a person is in issue it is important for all concerned to bear in mind that delays should be avoided if at all possible. I do not suggest that there has been unnecessary delay here on the part of anyone, but it would have been desirable if the NDIS option had been explored at an earlier stage. This is particularly so, bearing in mind that Mr Manning's support needs have been known for many years.
There is another factor that must be borne in mind. Once a detention order is affirmed, the next review is not for two years. The offender can, in exceptional circumstances, seek a review after the first year. This may cause those concerned with looking for funding for support to defer their efforts for two years. That would risk the same thing happening again. It is imperative, in my view, that before the next review, all possible options for release are fully explored.
Indeed, the current review by the NDIA should not be deferred because it may provide the basis for a s 30 exceptional review. In saying that, I do not presume to know what the outcome of that review will be, or whether the court would necessarily grant leave to bring a s 30 application.
For those reasons, I affirm the continuing detention order and there will be an order in those terms.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall4 APRIL 2019
0
1
1