State of New South Wales v Manners

LEGISLATION CITED : Crimes (Serious Sex Offenders) Act 2006 Child Protection (Registration of Offenders) Act 2000

Attorney General for New South Wales v Hayter [2007] NSWSC 983 Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 CASES CITED : State of New South Wales v Brookes [2008] NSWSC 150 Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 R v Manners [2004] NSWCCA 181

PARTIES : State of New South Wales (Plaintiff) Andrew Robert Manners (Defendant)

COUNSEL : Ms CE Adamson SC; Ms SG Callan (Plaintiff) Mr MJ Johnston (Defendant)

SOLICITORS : Crown Solicitor's Office (Plaintiff) Nyman Gibson Stewart (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/15216 State of New South Wales v Andrew Robert Manners

JUDGMENT 1 JOHNSON J: By Summons filed on 2 October 2008, the Plaintiff, the State of New South Wales, seeks orders under the Crimes (Serious Sex Offenders) Act 2006 ("the Act") with respect to the Defendant, Andrew Robert Manners. The Defendant is on parole with respect to sentences imposed in 2003 for certain sex offences. The sentences will expire on 7 February 2009 and thus parole will come to an end at the same time. Preliminary Hearing 2 The Summons seeks, as final relief, the making of an extended supervision order under s.9(1) of the Act. A preliminary hearing has proceeded today under s.7(3) of the Act. The Plaintiff seeks an order under s.7(4) appointing psychiatrists to examine the Defendant and requiring his attendance for that purpose. The Plaintiff does not seek an interim supervision order under s.8 at this time. It is apparent that the Defendant is presently subject to conditional liberty on a range of conditions as part of his parole. 3 In view of the material served by the Plaintiff for the purpose of the application, counsel for the Defendant concedes for the purpose of the preliminary hearing that on the basis of supporting documentation now before the Court, the Court is likely to be satisfied of the threshold test that the matters alleged in the supporting documentation would, if proved, justify the making of a supervision order for the purpose of s.7(4) of the Act. However, counsel makes no concession concerning the position of the Defendant at a final hearing, particularly in relation to s.9(2) of the Act. On the basis of this concession, the Defendant does not oppose the Court making orders appointing two qualified psychiatrists to examine the Defendant. The Defendant, subject to his current supervision conditions, will comply with any direction to attend examinations. 4 Given the terms of s.7(4) and (5) of the Act, however, it remains a matter for the Court to determine whether the statutory criteria have been satisfied. In this respect, I agree with the approach of Price J in Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983 at [4]. That process, however, is facilitated by the fact that there is no controversy between the parties to be resolved in this respect; rather, it remains for the Court to consider the supporting documentation tendered on the application and then apply the test under s.7(4) of the Act.

Evidence on Application 5 The Plaintiff has read affidavits and tendered other documents in support of the application. The affidavits read by the Plaintiff are all affirmed by Nicholas Matti Kelly and are dated 2 October 2008, 28 October 2008 and 4 November 2008. In addition, the Plaintiff has tendered two sets of documents referred to in the affidavits of Mr Kelly, which have been admitted at the hearing and marked exhibits NMK 1 and NMK 2. Finally, the Plaintiff tendered a report dated 5 November 2008 of Patrick Sheehan, psychologist, which became exhibit A on the hearing.

The Statutory Test 6 The objects of the Act are set out in s.3 which states, in summary, that the primary object of the Act is to provide for extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. A further object of the Act is to encourage serious sex offenders to undertake rehabilitation. 7 On the present application by way of preliminary hearing, the Court must consider whether, for the purposes of s.7(4), it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order with respect to the Defendant. If so, the Court must make orders appointing psychiatrists or psychologists to undertake examinations. If, following the preliminary hearing, the Court was not satisfied in accordance with s.7(4), the Court must dismiss the application: s.7(5). Thus it falls to the Court to apply that test in the circumstances of this case. 8 In Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney-General for the State of New South Wales v Hayter at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]. 9 One purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision. 10 Section 9(2) provides that an extended supervision order may be made if, and only if, the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit further serious sex offences if he is not kept under supervision. The application for final relief requires consideration of the factors contained in s.9 of the Act. It is necessary, for the limited purposes presently required, to refer to s.9 factors and their application to this Defendant. 11 The Court of Appeal has stated that the word "likely" in s.9(2) of the Act, does not require a degree of probability exceeding 50%: Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327 at [88]-[90], [92]. The word "likely" may be taken to mean a "sufficiently substantial probability": Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21].

Threshold Statutory Criteria 12 There are certain threshold criteria which the Plaintiff must satisfy. I am satisfied that the Defendant falls within the definition of "sex offender" and that he is serving a relevant sentence for a "serious sex offence". I note, in this respect, the extended definition in s.6(1)(a) which provides that the term "current custody or supervision" in the Act includes a person who is on release on parole while serving a sentence of imprisonment. As I have observed, the Defendant is presently on parole as part of the sentence of imprisonment passed upon him in 2003. 13 The Defendant has been on parole since May 2008. The present application was commenced by the Plaintiff on 2 October 2008. The Plaintiff is prevented, by s.6(2) of the Act, from making application under the Act until the last six months of the current custody or supervision of the relevant offender. Thus, although the present Defendant has been at large in the community since May 2008, albeit subject to a number of conditions, the Plaintiff was prevented from bringing this application until a date after 7 August 2008. 14 Although the six-month limit in s.6(2) is an understandable provision where the offender remains in custody, it is a somewhat curious situation where the offender can be at liberty on parole for a period, with the Plaintiff being prevented from bringing an application under thisuntil a period is reached six months before the effluxion of the total sentence. Having made that observation, it is clear that the Plaintiff has complied with s.6(2) because the application was made at a date less than six months before the expiry of the sentence. 15 I am satisfied that the application is supported by documentation which satisfies the requirements of s. (3)(a) of the Act, in that the documentation addresses each of the matters referred to in s.9(3). I am also satisfied that the documentation now satisfies s.6(3)(b) of the Act, in that it includes a report prepared by a registered psychologist that assesses the likelihood of the Defendant committing a further serious sex offence. I should add that, until the provision of the report of Mr Sheehan dated 5 November 2008 (exhibit A), there was a real question as to whether the substantial body of supporting documentation provided by the Plaintiff satisfied the mandatory requirement in s. (3)(b) of the Act. On my reading of the supporting material, the document that could have come closest to satisfying that requirement was a report dated 4 May 2007 prepared by a psychiatrist and psychologist working within Justice Health, clearly for purposes unrelated to an application under this Act. 16 Without the recent report of Mr Sheehan, a question may have arisen as to whether an older report, prepared for another purpose, is capable of satisfying the requirement of the Act. One would have thought that the Act requires a report of recent origin, which addresses the likelihood of the offender committing a further serious sex offence, with that report being one prepared for the purpose of the application. Clearly, such a report will have regard to earlier reports. It seems to me that the Act requires a report be prepared specifically for the purpose of the application. However, because of the provision of the report of Mr Sheehan, that issue falls away because there is clearly a report which satisfies that requirement of the Act.

Section 9(3) Criteria 17 I turn to consider factors referred to in s.9(3) of the Act, for the limited purpose required on a preliminary hearing. I will refer to a number of these factors, out of their statutory order. 18 Section 9(3)(h) requires the Court to consider the Defendant's criminal history, including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere and any pattern of offending behaviour disclosed by that history. The Court is assisted by helpful written submissions provided by the Plaintiff which summarise material contained in the supporting documentation with respect not only to the Defendant's criminal history, but to other features which arise for consideration under s.9. I will, from time to time, refer to parts of those submissions which I am satisfied accurately summarise the supporting documentation. 19 The Defendant was born in 1975 and is now 33 years of age. He has convictions in the State of Queensland in 1998 for offences including aggravated indecent dealing with a child under 12 years and maintaining an unlawful relationship of a sexual nature with a child under 12 years. It is not presently necessary to outline the details of the offences for which the Defendant came to be sentenced. It is sufficient to note that sentences of imprisonment were imposed in Queensland in 1998 for those offences. 20 In 2002, the Defendant was sentenced to a term of three months imprisonment for breaching his obligations under the Child Protection (Registration of Offenders) Act 2000, in that he applied for child related employment whilst being a prohibited person. 21 In 2003, he was sentenced in the District Court in this State by his Honour Judge Nield for three counts of persistent sexual abuse of a person under the age of 16 years. He was sentenced to imprisonment for six years with a non-parole period of four years and three months. A Crown appeal against the suggested inadequacy of that sentence was dismissed by the Court of Criminal Appeal on 2 July 2004: R v Manners [2004] NSWCCA 181. 22 The judgment of the Court of Criminal Appeal summarises the offences committed by the Defendant leading to the imposition of those sentences. It was accepted by the sentencing judge that the Defendant was appropriately classified as a paedophile who is sexually attracted to prepubescent girls, and that his pattern of offending reflected such a condition. His Honour Judge Nield made findings about the nature of the Defendant's offences which demonstrated grooming of the victim and an element of manipulation on the part of the Defendant. The Court of Criminal Appeal dismissed the Crown appeal, having regard to the principles applicable on such an appeal, but observed (at [34]) that the sentence may be thought to have been a lenient one, particularly as the Defendant had committed these offences whilst being on parole for like offences. 23 In the light of the evidence before the Court on the present application, the factors relevant under s.9(3)(h) concerning the Defendant's criminal history, and the pattern of his offending behaviour, support the making of the orders sought by the Plaintiff. There is a pattern of offending behaviour in Queensland and New South Wales involving offences committed against young girls in circumstances where an element of grooming is used. A sentencing court in this State has accepted that the Defendant is to be regarded as a paedophile, and thus a person with proclivities which needed to be addressed in some fashion. 24 Section 9(3)(e) of the Act requires consideration to be given to any treatment or rehabilitation programmes in which the Defendant has had an opportunity to participate, his willingness to participate in such programmes and the level of his participation in any such programmes. The evidence reveals that the Defendant has participated in a range of programmes both inside and outside custody. It is not necessary, for present purposes, to recite the detailed conclusions expressed in reports concerning those programmes. It is sufficient, for present purposes, to record that he took part in the Sex Offenders' Intervention Programme (SOIP) whilst in custody in Queensland in 1999. He took part in the Community Based After Care programme (COBAC) after release on parole in New South Wales in 2000. He participated in the Custody Based Intensive Treatment programme (CUBIT) between 2005 and 2007 whilst in custody in New South Wales. 25 There is, in the material before the Court, a range of reports with respect to the participation of the Defendant in these programmes. There is, from time to time, an expression of concern that although he has participated, his thought processes may operate at a level where there is an element of manipulation. It is the fact, however, that he has completed a range of programmes, although it would be apparent that some of those programmes were followed by further offending. 26 Upon completing the CUBIT programme, the Defendant commenced treatment in the Custodial Maintenance programme in New South Wales. That programme was undertaken prior to his release on parole in May 2008. Upon his release to parole on 7 May 2008, the Defendant commenced to attend the Community Maintenance programme operated by the Department of Corrective Services. There is reference to his participation in that programme both in the supporting documentation and in the recent report of Mr Sheehan, psychologist. 27 The Plaintiff submits, that the evidence concerning this factor establishes that the Defendant is intelligent and capable of undertaking treatment programmes. The Plaintiff submits, however, that he is also able to present well, and demonstrate insight and apparent awareness of risk prevention. Given his capacity for manipulation, and his history of offending after completing treatment with apparent success, the Plaintiff submits that care must be taken before reaching any conclusions that treatment has had any effect on his risk of reoffending. 28 For present purposes, the material before the Court provides support for the submission. The material contained in Mr Sheehan's report points to recent progress of a significant type on the Defendant's part whilst subject to parole. That material needs to be taken into account, together with the historical material relied upon by the Plaintiff (with respect to s.9(3)(e) and also s.9(3)(f) and (g) which concern the Defendant's compliance with parole and his obligations under child protection legislation). For the purpose of the current interlocutory application, the material before the Court supports the Plaintiff's application. 29 Section 9(3)(d) requires the Court to consider the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the Defendant committing a further serious sex offence. There are, within the evidence, reports indicating application of the Static 99 actuarial assessment to the Defendant. On each occasion that the Static 99 criteria have been applied, he has been assessed as having a score of 6 plus, indicating a high risk. That factor supports the present application. 30 Section 9(3)(c) requires the Court to consider the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the Defendant committing a further serious sex offence, his willingness to participate in any such assessment and the level of his participation in any such assessment. The evidence on this application includes the report of 4 May 2007 of Dr Ellis, psychiatrist, and Mr Rodriguez, psychologist, which assessed the Defendant for the purpose of treatment whilst in custody and with respect to the management of his paraphilia. That report assessed the Defendant as being at a high risk for sexually reoffending. 31 In addition, the report of Mr Sheehan of 5 November 2008, by reference to both static and dynamic risk factors, assesses the Defendant as being in the high-risk category of sexual offending. The evidence before the Court relevant to this statutory factor supports the present application. 32 Section 9(3)(i) requires the Court to have regard to any other information that is available as to the likelihood that the Defendant will in future commit offences of a sexual nature. The written submissions of the Plaintiff advert, in particular, to what are said to be concerns about the level of parental supervision of the Defendant. The evidence reveals that the Defendant has in the past lived at home with his parents and, as I understand it, continues to do so. It is not necessary, for present purposes, to expand upon this issue, but there are parts of the evidence which raise real questions concerning the level of informed and realistic scrutiny and supervision which the Defendant's parents have provided in the past. That factor is one which supports the Plaintiff on the present application. 33 Section 9(3)(a) requires the Court to have regard to the safety of the community. As I have said, this is a primary object of the Act: s.3. All of the matters which have been referred to so far bear upon the question of the safety of the community, in one way or another. The Defendant has demonstrated a pattern of offending and reoffending with respect to young girls, despite the imposition of sentences (including imprisonment) and despite the use of treatment measures whilst the Defendant was in and out of custody. There are aspects of his pattern of offending, including grooming and other features, which bear directly upon the safety of the community. His propensity to reoffend bears on this factor as well, as does the concern expressed in the reports concerning the risk of reoffending, in particular if the Defendant is in the community unsupervised. 34 All of this assists the Plaintiff on the present application which, in reality, is an application that the Defendant be subject to an extended supervision order beyond 7 February 2009 when his parole comes to an end. What underlies the present application is the concern, based upon the evidence, that there is a significant risk of reoffending by the Defendant if he is in the community without the conditions which may be imposed as part of an extended supervision order under this Act. Whether such an order ought be made, of course, is a matter for another day at a final hearing. It is sufficient, for present purposes, to say that the matters revealed by the evidence provide significant support for the Plaintiff on the present application.

Conclusion 35 Having considered the factors applicable to this application under s.9(3) of the Act, I express the conclusion that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Accordingly, I am satisfied that orders should be made for appointment of psychiatrists to undertake examinations of the Defendant so that this application may proceed to its next phase. 36 I make the following orders:

(1) Pursuant to s.7(4) of the Crimes (Serious Sex Offenders) Act 2006 : (a) Two qualified psychiatrists are appointed to conduct separate psychiatric examinations of the Defendant, Andrew Robert Manners, and to furnish reports to the Supreme Court (by provision to the Plaintiff's solicitor) on the results of those examinations by 3 December 2008;

(b) the Defendant is directed to attend those examinations.

(2) The Plaintiff is to file and serve any evidence upon which it proposes to rely on or before 3 December 2008.

(3) The Defendant is to file and serve any evidence upon which he proposes to rely on or before 10 December 2008.

(4) The Plaintiff is to file and serve a written outline of submissions four clear days before the hearing.

(5) The Defendant is to file and serve any written outline of submissions one clear day before the hearing.

(6) The Summons is listed for final hearing on 17 December 2008 with a two day estimate (a Court with a hearing loop is to be used for the hearing.)

(7) The parties have liberty to apply on 24 hours' notice. 37 The Court notes that, in respect of order 1(a), by consent the parties nominate Dr Jeremy O'Dea and Dr Samson Roberts as the two qualified psychiatrists. However, this is subject to availability and the parties will liaise to identify alternative qualified psychiatrists if required.

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