State of New South Wales v Manna [2016] NSWSC 1841 | Case summary

Principles to be applied

The proper approach to an application for an interim detention order is not settled. Before turning to the relevant authorities, some observations may be made as to the structure of the Act.
The objects of the Act (stated in s 3) are twofold. Its primary object is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. Section 3(2) states "another" object of the Act, which is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
The Act reflects a clear legislative intention, in a proper case, to effect significant interference with the right to personal liberty in the interests of the safety and protection of the community. The gravity of authorising any interference with such an important right is acknowledged in the highly prescriptive provisions of the Act, including the detailed requirement for supporting documentation stated in s 6 of the Act, the mandatory dismissal of proceedings following the preliminary hearing if the Court is not satisfied in the terms of s 7(4) of the Act and the recognition, implicit in the several time constraints imposed by the Act, that every person's entitlement to be at liberty is to be treated as an urgent and important question.
In State of New South Wales v Donovan [2015] NSWCA 280 (a case concerned with final orders, not interim orders) the Court accepted at [80] that the primary object of the Act of ensuring the safety and protection of the community "cannot mean literally what it says, for there will always be some level of risk to the safety and protection of the community". The Court said at [81] "There is no basis for construing the general object expressed in s 3(1) to impact upon the finely calibrated language in Div 2 of Pt 1A" (which contains the provisions conferring power to make an extended supervision order or a continuing detention order).
The structure of the Act suggests a hierarchy of final orders that acknowledges the fundamental nature of the right to personal liberty. Extended supervision orders are addressed first, in part 2 of the Act, and must logically be considered first. Continuing detention orders are addressed in part 3 of the Act and may be made only if the court is satisfied that adequate supervision will not be provided by an extended supervision order: ss 5D (sex offenders) and 5G (violent offenders). In so providing, the Act expressly acknowledges that a continuing detention order made after a final hearing is, in effect, an order of last resort, to be made only after a careful assessment of the adequacy of the supervision that will be provided by an extended supervision order.
As noted in Mr Manna's written submissions, adequate supervision under s 5G is not determined only by an assessment of unacceptable risk but involves a wider ranging inquiry including having regard to the secondary purpose of the Act being to encourage rehabilitation: Donovan at [14]-[15]. The inquiry also requires consideration of the wide range of conditions which could be imposed by an interim supervision order: Anderson v State of New South Wales [2016] NSWCA 86 at [15]-[18].
It is appropriate in that context to make reference to s 6(4) of the Act. That section provides that an application "may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made". In practice, the State invariably includes a lengthy list of conditions calculated to constrain many aspects of the defendant's personal liberty including the imposition of reporting obligations and submission to monitoring; supervision of decisions as to accommodation, employment, finance and education; place and travel restrictions; restrictions on the use of the internet and "other electric communication"; prohibitions on the use of drugs, alcohol and weapons; restrictions as to the persons with whom the defendant may associate; a requirement to submit to broad search powers including personal searches; restrictions on changing appearance and complete supervision of all medical treatment.
A number of those conditions will often be appropriate and the court should of course have close regard to the kinds of conditions suggested by persons with relevant experience and expertise in corrective services. However, the imposition of conditions is ultimately a matter for the court as an aspect of the exercise of its powers under the Act.
As already noted, in the case of final orders, a continuing detention order cannot be made unless the court is satisfied that adequate supervision will not be provided by an extended supervision order. That is to say that the authority to make a continuing detention order is engaged only where the court is satisfied in those terms. No such jurisdictional constraint is stated in respect of the power to make an interim detention order. Section 18B of the Act provides: 18B Interim detention order--high risk violent offender The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order.
Section 10B makes similar provision in respect of an interim supervision order, conferring authority to make such an order if the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order.
It follows from my acceptance of the defendant's concessions noted above that the authority to make either form of interim order is engaged. The critical question is whether an interim detention order should be made in the circumstances of the present case.
Different views have been taken as to the proper approach to that issue.
In State of New South Wales v Atkins [2013] NSWSC 1988 at [35], Rothman J noted that it is not necessary, before making an interim detention order, for the court to be satisfied that a supervision order would not suffice, whereas such a determination is necessary when final orders are to be made. His Honour further stated at [28] that, for the purposes of making an interim order, he gave "greater weight" to risk avoidance, citing the decision of Bell J in Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. I note that those were not the precise words used by Bell J; her Honour said "in dealing with the interim orders, it is appropriate to give weight to risk-avoidance" (not "greater weight"). Adopting that cautious approach, Rothman J ultimately made an interim supervision order in that case, not an interim detention order.
In State of New South Wales v Davie [2015] NSWSC 413 at [24]-[28], after referring to the remarks of Rothman J in Atkins, Button J accepted a submission that, even though there is "no analogous provision that applies to interim orders in the way that ss 5B and 5G apply to final orders", the Court would nevertheless not make an interim detention order unless satisfied that an interim supervision order "would not fulfil the primary purpose of the Act of ensuring the safety and protection of the community".
In State of New South Wales v Cornwall [2015] NSWSC 742 at [10], Beech-Jones J recorded a concession by the State that the approach stated by Button J in Davie was the correct approach.
For completeness, I note that the defendant's submissions also made reference to the decision of Price J in Attorney General for the State of NSW v Wilde [2008] NSWSC 14 at [2]. However, that was a decision concerning a continuing detention order, not an interim order.
The concession noted by Beech-Jones J in Cornwall has not subsequently been adhered to by the State. I considered the same authorities in State of NSW v Bugmy (preliminary hearing) [2016] NSWSC1128, expressing my view as follows: The decision in Davie in effect endorses an approach which reads an analogue of s 5G into the provisions dealing with interim detention orders by implication. I would accept that the discretion to make an interim detention order is one that is importantly informed by the common law right to personal liberty considered above; the approach should not be one of expedience. However, with great respect to Button J, I am not persuaded that the correct approach is not to make an interim detention order unless satisfied that an interim supervision order would not fulfil the purpose of ensuring the safety and protection of the community. There may be warrant for a broader approach giving due consideration to the fact that either form of order (detention or supervision) is being made on an interim basis. There may, for example, be cases in which the court could properly make an interim supervision order allowing a defendant to use the interim period to demonstrate a capacity to work constructively within a regime of supervision. Conversely, there may be cases in which the prospect of a final continuing detention order was so high that an interim supervision order would be regarded as being disruptive to an offender's long term rehabilitation. Each case will of course turn on its own facts.
It was not ultimately necessary for me in that case to resolve any tension between my analysis of the section and that adopted by Button J in Davie, since I was satisfied that, on either approach, an interim detention order should be made in that case. That was due, in part, to the fact that there was no accommodation available to Mr Bugmy in the community, which posed a significant impediment to adequate supervision (that was also the position in the matter of Winters, determined by Bell J).
The parties in the present case indicated that, so far as they were aware, those are the principal authorities addressing this question. Ms Mathur, who appears for Mr Manna, submitted that the section should be construed in the manner stated by Button J in Davie and that I should reconsider the analysis I preferred in Bugmy.
I am not persuaded that my remarks in Bugmy set out above reflect a wrong approach. Perhaps I am taking an overly literal approach to the construction of the statute but I am not persuaded that the jurisdictional constraint on the power to make a continuing detention order similarly constrains the power to make interim orders. In practice, however, there is likely to be little difference in either approach. As noted in my remarks in Bugmy, I accept without equivocation that the discretion to make an interim detention order is importantly informed by the common law right to personal liberty; the Court is unlikely to be persuaded of the need to make such an order where supervision would be adequate having regard to the risk perceived. Upon reflection, I think it is possible Button J intended to say no more than that. In the case of interim orders, however, there is less opportunity for the court to evaluate the risk posed by an offender and the likely efficacy of supervision. It is perhaps for that obvious practical reason that the power to make an interim detention order is expressly not subject to the jurisdictional constraint that applies in the case of final orders.
That said, nor should the approach be one of simply opting to preserve the status quo, keeping an offender in custody only on the basis that a prima facie case for a final continuing detention order is established. An offender who poses an unacceptable risk of serious offending will not necessarily pose that risk each day, from the minute he or she is released from custody. On the other hand, each day a person is detained in custody beyond the term of a sentence necessarily deprives him or her of the right to personal liberty.

Evidence as to risk assessment

I turn to consider the evidence concerning Mr Manna.
Section 6 of the Act provides that an application under the Act must be supported, amongst other things, by a report prepared by a qualified psychiatrist, a registered psychologist or a registered medical practitioner assessing the likelihood of the offender committing (in the present case) a further serious violence offence. The present application was supported by a report prepared by Dr Richard Parker, a senior psychologist employed in the Serious Offenders Assessment Unit of Corrective Services. Dr Parker has considerable relevant expertise, as set out in his report.
While I have of course had regard to the whole of the report, it is sufficient for present purposes to set out the executive summary provided by Dr Parker, as follows: "Mr Manna is a 42 year old man who was born in Australia, but raised in both Australia and Italy - where his father was born. His upbringing was generally stable, but affected by his mother's alcohol abuse. He first appeared before the Court at 17 years of age and has amassed a range of convictions, mostly for offences of dishonesty, but including a number of violent offences. His index serious violent offence, wound with intent to murder, was committed against a soft drink vendor. Mr Manna approached the victim, while brandishing a pistol, and demanded money. Mr Manna then shot the victim once, causing the victim to fall to the ground, whereupon he fired four further shots, intending to kill the victim. Mr Manna claimed that the victim had sold drugs to a 14 year old girl, causing her to turn to prostitution and that the victim had attacked him with an iron bar. He maintained this story for many years, but has recently acknowledged it was false, but has not substituted a credible narrative of the offence. Mr Manna is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. While he has recently commenced the VOTP, he will not be able to complete this within his current sentence. In the event that Mr Manna is subject to an Extended Supervision Order (ESO), it is likely that he will benefit from intensive supervision and case management by CSNSW. The higher level of supervision involved in an ESO, compared to standard supervision, would be able to ensure that his stated employment is genuine. However, as VOTP is only offered in custody, he would be unable to complete this program on an ESO. In the event that Mr Manna is subject to a Continuing Detention Order (CDO), he would be able to complete the VOTP. This could be completed in April 2017. However, given Mr Manna's history of being expelled from treatment programs, it is by no means certain that he will finish by then. In the event that no order is imposed, Mr Manna's sentence will expire on 24/2/2017. If this happens, it is considered likely that he would gravitate to old acquaintances in the Penrith area and resume his previous lifestyle. Whether the potential risk of Mr Manna being left unsupervised in the community would be considered "unacceptable" is a matter to be determined by the court."
In the body of the report, Dr Parker states the risk factors identified as being evident for Mr Manna, being "criminal peers", "criminal personality" and "criminal thinking". The report also addresses "risk scenarios" for Mr Manna, being the likely steps that would be involved if he were to return to a criminal lifestyle.
In addition to Dr Parker's report, the State's application is supported by a risk management report, as contemplated by ss 9(3)(d1) and 17(4)(d1) of the Act. Those sections require the court, in determining whether to make a final continuing detention order or extended supervision order, to have regard to "any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community". The risk management report in the present case was prepared by Mr Barry Williams, a Community Corrections Officer with the Extended Supervision Order team. The report provides a risk management plan directed at addressing the risk factors identified by Dr Parker (set out above).
Views will undoubtedly differ as to extent to which a report responding to the requirements of ss 9(3)(d1) and 17(4)(d1) of the Act should offer the author's own opinion about the particular offender. One could construe the section as calling for no more than a neutral report addressing the risks identified by the relevant psychologist or other expert and explaining, for the benefit of the court, the resources that can be made available to address those risks.
Mr Williams's report goes further, expressing views as to potential limitations of the proposed management strategy by reference to Mr Williams's own assessment of Mr Manna. For example, the report states, "it is concerning that in a recent interview in the custodial setting, Mr Manna stated that he does not want to complete the VOTP. His view to reject support and learning may not place him in good stead, without appropriate pro-social values he may be influenced by his anti-social peers and influences".
Ms Mathur submitted that the report misstates the evidence in some important respects and otherwise offers a harsh assessment of Mr Manna when regard is had to all of the circumstances.
The Court's ability to assess that submission at the preliminary stage of the proceedings is limited. Mr Williams has not given evidence; the occasion for that to occur, if at all, would be at the final hearing. Whether ss 9(3)(d1) and 17(4)(d1) contemplate that opinion evidence will be offered on the issues referred to and, if so, the form such evidence should take is also a matter for the final hearing rather than today. Noting those limitations it can, I think, at least be observed that Mr Williams's report is thorough in its recitation of negative features of Mr Manna's history while containing little reference to any of the positives.
The report identifies the sources of information by reference to which it was prepared. Those sources included interviews with Mr Manna and contact with Mr Manna's father; a senior psychologist of the Serious Offenders Assessment Unit (presumably Dr Parker); a psychologist in the VOTP and "restoration justice". There are some notes of Mr Williams's interviews with Mr Manna [3] but otherwise, so far as I am able to establish, the content of those contacts is not before the Court. Otherwise, most of the material assessed by Mr Williams is included in the evidence and can, for the purpose of forming a view about Mr Manna, as readily be assessed by the Court.
It may be accepted that the 1997 offence (referred to, in the language of the bureaucracy, as the "index" offence) was one of considerable gravity and that Dr Parker's assessment, if accepted, would sustain a finding that Mr Manna poses a high risk of committing a further serious violence offence if unsupervised. A significant aspect of the State's case for a continuing detention order in that context is the contention that Mr Manna remains "largely untreated due to his refusal to complete the VOTP program in custody". The most recent advice from the Serious Offenders Review Council to the Parole Authority was that it would be "highly desirable" for Mr Manna to complete that program. [4] That is plainly a relevant consideration in the State's application for final orders.
However, the contention that Mr Manna remains "untreated due to his refusal to complete the VOTP program" warrants analysis.
Mr Manna sought referral to the VOTP in May 2008.
In June 2008 the LSI-R test was conducted on him and he was assessed to be in the "low-moderate risk of re-offending category". That made him ineligible for the "Think First" program, which was offered only to the "medium to medium-high" bracket of offenders. [5] Instead, Mr Manna completed the "Getting Smart" programme, in which he was variously described as having participated "satisfactorily", "well" or "very well". In November 2008, during a case review, Mr Manna asked to be placed at Kirkconnell Correctional Centre to be closer to his father and so that he could complete a ""violence prevention program" offered there (apparently a reference to the VOTP, in which he thought he was to be enrolled). The notes record Mr Manna's desire to complete that program "as violence was part of his crime and he would like to address this so he does not re-offend". [6] The author of the case notes appears to have endorsed that proposal.
Mr Manna's referral to the VOTP, sent in May 2008, appears not to have been reviewed until over a year later, on 24 June 2009. According to a letter from the VOTP, he was found suitable for the moderate intensity program and placed on a waiting list. However, a case note dated 14 July 2009 records the view that, as Mr Manna falls in "the low/medium category on his LSI-R" he would not be suitable for the VOTP program.
A case note dated November 2009 records that, in the meantime, he had completed the "Getting Smart" program and the "SMART Recovery" program; had been assessed for VOTP and the CALM program; that he regularly participated in bible studies; that he was "a compliant inmate" and that he was "waiting to go to Kirkconnell to complete his other programs".
In due course, however, a further letter from the VOTP confirmed the apprehension of his case officer that Mr Manna was too "low risk" to qualify for the VOTP. The letter, dated 3 February 2010, said: The VOTP has since reviewed Mr Manna's referral in light of the need to prioritise offenders for entry into the programme. Following a review of his level of risk and history of violence, Mr Manna is not considered a priority for treatment and he has been removed from the VOTP waitlist.
The letter suggested other programs including CALM and Think First (he had already been found ineligible for the latter, for the same reason). Further case notes dated 8 June 2010 record that Mr Manna was unable to participate in therapeutic programs at Junee, including "SMART Recovery", due to his "low/medium LSI-R score". [7]
At some point in July or August 2010, Mr Manna was informed that the Serious Offenders Review Council wanted him to complete the VOTP. [8] His initial response was that, if he was offered the program (which must have seemed doubtful), he would refuse as he was happy at Junee and was enjoying the "pups in prison" program. He was at that stage training a particular puppy and had received positive feedback regarding his training. He told his case officer that the lady his dog was to be given to was very sick and might not survive; he was empathetic and concerned about her and was hoping to obtain a classification from SORC that would enable him to take the dog out to the car park to train him.
In a later discussion, however, Mr Manna told his case officer that SORC had indicated they would "guarantee to send him straight back [to Junee] after he completes the program". On that basis, he was evidently happy to be referred to the VOTP again. On 10 August 2010 he completed what I think must have been his third referral to the program. On 3 February 2011, Mr Manna was again informed that he had been removed from the waitlist. Again, the reason was that his risk, as assessed, was too low (the letter was in almost identical terms to the letter dated 3 February 2010). [9] A later note explains that, at that time, the moderate intensity VOTP had been cancelled and that offenders previously found suitable for that program had been reassessed for the high intensity program. Unless they qualified for the high intensity program, they were assessed "unsuitable" for VOTP.
In the meantime, Mr Manna had commenced the "Managing Emotions" program. He was encouraged to continue that program, which he did. He was described as having participated to a high standard in all individual, pair and group activities. [10]
In 2011, Mr Manna's case officer recommended that he be assessed for eligibility for CALM and that he should attend further "SMART Recovery" meetings. He told her that he had previously been advised he could not attend SMART Recovery due to his low risk assessment. She said the previous assessment "was never approved and was not valid" and that his new risk assessment indicated that he is "a medium risk" and as such should be able to attend SMART Recovery. [11] In September and October he attended three sessions at Junee but that appears to have been interrupted when he was transferred to a different facility. [12]
On 26 April 2012 Mr Manna was refused parole. One of the reasons cited by the Parole Authority was "needs to participate in the program(s) to address violence - CALM". [13]
Incredibly, a case note dated 7 June 2012 then records that Mr Manna was to complete the CALMS program at Parramatta (as the Parole Authority thought he should) but that he had been "deemed unsuitable" for the program. However, he completed further SMART Recovery sessions, attending seven in all. [14] While it is difficult to piece the puzzle together from the records, it appears the Parole Authority was persuaded, in the circumstances, to grant parole notwithstanding the earlier remark. Dr Parker's report notes that he was assessed suitable for CALM shortly before being granted parole and was directed to complete the program while on parole but failed to do so.
Mr Manna was released to parole on 7 December 2012. On 26 May 2014, whilst still on parole, he committed offences of larceny and using an unregistered trailer. In July 2014 he was charged with four further offences and was ultimately convicted of common assault, malicious damage and larceny. The fourth charge, an offence of being armed with intent to commit an indictable offence, was dismissed.
The sentencing remarks in respect of those matters have been sought by the State but are not currently available. In that circumstance, the State was left to rely on the police statement of facts. Those facts must of course be approached with caution, bearing in mind that Mr Manna was acquitted of the charge of being armed with intent to commit an indictable offence.
The charges arose out of an altercation between Mr Manna and a woman with whom he had a short term relationship. Mr Manna met her four days before the incident and, at her invitation, stayed with her for a few days. The relationship quickly broke down and she asked him to leave. An argument arose after he took her computer to his car (he said inadvertently; she alleged theft). During the argument, Mr Manna punched the woman twice in the face. That was the basis for the charge of common assault. She alleged that he then went to the kitchen, got a knife and threatened her but that is the charge that was dismissed. Mr Manna admitted damaging her garage door when he forced it open so as to be able to collect his possessions and leave the premises after the altercation. That was the basis for the criminal damage charge. The charge of larceny evidently related to his removal of the computer from her house (which it seems she immediately recovered).
Ms Mathur acknowledged that the further offences are relevant and "arguably of concern", but noted that common assault is not a "serious violence offence" within the meaning of the Act.
For each of the offences committed in July 2014, Mr Manna was sentenced to imprisonment for a period of 6 months, in each case commencing on the date Mr Manna was returned to custody following the revocation of his parole order. The reasons cited by the Parole Authority for revoking parole were breach of the condition to be of good behaviour (based on the further charges), failure to report as directed and failure to undergo assessment and counselling as directed.
The date on which Mr Manna was returned to custody was 18 July 2014. Mr Williams records that Mr Manna was offered a suitability assessment for participation in the VOTP programme on 22 July 2014 but refused. Mr Williams further records that the Parole Authority declined to grant parole in 2015 for reasons including "failed to engage in program to address violence".
The report omits reference to other records relating to the alleged refusal to be assessed for the VOTP when Mr Manna was returned to custody in 2014. A report of the Serious Offenders Review Council (SORC) dated 26 April 2016 includes an extract from the notes of an assessment committee of the Council when it interviewed Mr Manna in October 2015. The notes include the following: "The Committee noted the inmate refused to do the VOTP, the inmate stated that he feels that he and the parole officer may have had a clash, the inmate stated that he had completed the referral, the inmate stated he has never refused to complete the program. The inmate stated he is waiting for the VOTP to determine if he is suitable to complete the program as he had previously had been deemed unsuitable (sic)."
Further, a case note dated 17 February 2016 records the following: Manna asked me when he'd be going to VOTP, I told him it would likely be soon but was unsure of a date. He spoke for a while about wishing he'd been told to do the program sooner. Claimed he never refused it in July 2014, no-one asked him about it and he'd just come into custody un-sentenced so he wouldn't have been able to do it then anyway. Manna then asked who makes the decision on/who to contact in regards to High Risk Offenders Legislation. I told him I would find out and provide him the details.
The report records Mr Manna as having consented to be referred (again) for the VOTP only upon being informed that he was being considered for the present application. The notes set out above indicate a dispute on that issue. Mr Manna's reference to his being ineligible for the programme (as an un-sentenced offender) as at the date he is alleged to have refused to be referred for assessment is at least plausible. By then, Mr Manna had considerable personal experience of the difficulty of obtaining enrolment into the VOTP.
In any event, Mr Manna consented to be referred to the program again on 28 May 2015. For reasons that are not explained in the evidence, it was not until March 2016 that he commenced the programme, almost 19 years after the commencement of his sentence.
As at the date of Dr Parker's report (3 June 2016), it was anticipated that Mr Manna could finish the programme in April 2017. Unfortunately, however, Mr Manna's enrolment in the VOTP was terminated on 20 July 2016 after a fight with another inmate who was also enrolled in the programme. There is no dispute that it was the other inmate who initiated the fight by striking Mr Manna. However, Mr Manna retaliated and was suspended from the programme for that reason. He challenged the suspension but was unsuccessful. He subsequently became unwilling to resume the program. On 6 September 2016, he told Mr Williams: "I'm safer in my current location. The VOTP is overrun with drugs and violent offenders".
On 12 September 2016, Mr MANNA informed the senior VOTP psychologist that he was finding it difficult to make a decision on returning to complete the VOTP, fearing that he "is not in the right mind frame at the moment." They spoke at length about his stressors, "namely, his father's health".
On 22 September 2016, Mr Manna ultimately decided not to accept the treatment re-entry offer and was removed from the waitlist. [15]
Against that unhappy history, the correctness of the contention that Mr Manna "remains untreated due to his refusal to complete the VOTP program in custody" may be doubted; at the very least, it is an incomplete statement.
It is true that Mr Manna will be unable to complete the VOTP program if released on an extended supervision order. Dr Parker's report addresses that issue. He states (at par 68): In the event he is released to supervision before completing VOTP, Mr Manna would have access to individual intervention from an experienced CSNSW senior psychologist working in the VOTP maintenance and outreach team. This would not meet the intensity or frequency of a custody-based treatment program such as the VOTP, or therefore be able to focus as thoroughly on his entrenched personality difficulties, core beliefs or cognitive schemas relating to his offending behaviour. This intervention could focus on managing his risk factors and high risk scenarios. Also this intervention would assist Mr Manna's reintegration into the community in a pro-social manner after lengthy incarceration.
Cleary, two issues will loom large in the final determination of the present application. One is the desirability of completing the VOTP in custody. The second is the extent to which Mr Manna would be likely to engage with supervision in the community if released on an extended supervision order.
Ms Mathur placed emphasis on the case notes as the best source of understanding of Mr Manna's likely engagement with supervision and rehabilitation if released into the community. She submitted that his failures during the period of parole can be better understood when regard is had to a number of factors that were operating against him at that time, which would not be the case if he were subject to the more comprehensive supervision an extended supervision order. Ms Mathur submitted that the Court must be astute to have regard to the context in which those failures in the rehabilitation process occurred when assessing Mr Williams's relatively gloomy analysis of the practicability of managing Mr Manna in the community.
Most pertinently, Ms Mathur noted that, at the time he was released on parole, Mr Manna was not permitted to enter the Penrith area owing to concerns for the safety of the victim of his 1997 offence, who lived in that area. Unfortunately, Mr Manna's father lives in the same area. As submitted by Ms Mathur, the case notes during the critical period from the time when Mr Manna was released on parole until his parole was revoked are replete with references to his struggling to readjust to life in the community without stable accommodation and constant family support.
When regard is had to the difficulties under which Mr Manna was labouring during the period of his parole it is, in my assessment, significant that he engaged relatively well with his supervision obligations for at least 12 months and that he spent a period of 19 months in the community without committing any act of violence. As noted by Ms Mathur, the degree of supervision provided to assist him during that period was significantly less than the conditions of the interim supervision order proposed in the amended summons.
The State submits that there is a sound evidentiary basis for making a continuing detention order and that the prospect of such an order being made is sufficiently high that an interim supervision order should be regarded as being "disruptive". While I accept (as I did in Bugmy in the passage set out above) that the prospect of disruption to the process of rehabilitation is a relevant consideration, the submission rings hollow in the present case having regard to the history I have recited. While the case notes amply record the good intentions of individuals attempting to assist Mr Manna to address his offending, the systemic response to his need for treatment has been both languid and chaotic. One is left with the impression that the treatment of violent offenders in custody is significantly under-resourced.
In any event, it is difficult to understand the suggestion that release from custody will be disruptive when Mr Manna is not presently enrolled in the VOTP. It is possible that, after the final hearing, the Court will be satisfied that, until Mr Manna completes the VOTP, adequate supervision cannot be provided for him in the community in the long term. I am not persuaded that, in the meantime, having served most of a twenty year sentence, he should wait in custody each day until the course can be resumed. The evidence has not persuaded me that he is likely to fail so quickly and catastrophically. On the contrary, there is every indication that, at least in the short term, he is likely to be well-motivated and sufficiently controlled not to expose himself to the kind of circumstances in which Dr Parker assesses him to be likely to re-offend.
A further, compelling consideration in the present case is Mr Manna's desire to see his aging father, who is apparently unwell. The prospect of being allowed to be with his father seems likely to be a powerful motivation in the rehabilitation process; preventing him from doing so seems likely to impair his motivation rather than improving it.
It will be necessary to hear the parties as to Mr Manna's accommodation upon his release. As recently as 22 September 2016, Mr Williams informed Mr Manna that his proposal to live in Penrith was not approved as the victim of the index offence lives there; in fact, the victim died in February this year. Subject to the resolution of that issue, the order I propose is an interim supervision order on the conditions proposed in the amended summons.

State of New South Wales v Manna

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)

Cited By (1)