State of New South Wales v Manners

Supreme Court of NSW|2015-09-28|Before: Hulme J, Mr J, Mr P

Solicitors: Crown Solicitors Legal Aid NSW File Number(s): 2015/241390

Judgment

HIS HONOUR: The State of New South Wales ("the plaintiff") asks that an extended supervision order be made against Andrew Robert Manners ("the defendant") pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
This is the preliminary hearing into the application pursuant to s 7 of the Act. The plaintiff seeks an order pursuant to s 7(4) appointing two psychiatrists to conduct examinations of the defendant and ancillary orders. It also seeks an interim supervision order be made pending the final hearing of the proceedings. These orders can only be made if the Court is satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order": s 7(4); similarly s 10A(b).
An extended supervision order could be made against the defendant if the Court was satisfied that he is a "high risk sex offender", meaning that he is a sex offender in respect of whom there is a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if not kept under supervision. In determining this issue, the Court would be required to have regard to the matters set out in s 9(3). The matters below are pertinent to these issues.

History of sexual offending

The defendant was born in 1975.
In January 1998 in the Brisbane District Court he was sentenced to 1 year 4 months imprisonment with a non-parole period of 5 months for three counts of aggravated indecent dealing with a child under the age of 12 (she was aged 3). In December the same year, and in the same court, he was sentenced to 4 years with a non-parole period of 9 months, for various types of indecent assaults upon four female children aged 6, 7, 9 and 11.
While serving these sentences the defendant completed a Cognitive Skills Core Program and a Sex Offenders Intervention Program. He is recorded as having described these programs as "extremely valuable". He was released to parole on 14 February 2000. Thereafter he participated in sex offender programs provided by the Forensic Psychology Services unit of Corrective Services NSW. He was registered under the Child Protection (Offenders Registration) Act 2000 (NSW).
On 25 October 2002, the defendant was convicted of offences of having remained in a child related employment position (he had been teaching Scottish Highland Dancing to children aged between 6 and 12 at his home unsupervised) and of having failed to comply with his reporting obligations. He was sentenced to 3 months imprisonment.
On 24 October 2002, the defendant's parole was revoked and he was required to serve the entirety of the balance of his parole period. On the day he was due for release, 8 February 2003, he was interviewed by police and made admissions in relation to indecently assaulting a dance student in excess of 6 times in a 10 month period in 2002. On 18 December 2003 he was convicted of an offence of persistent sexual abuse of a child and sentenced to imprisonment for 6 years with a non-parole period of 4 years 3 months. The sentence was specified to commence on 8 February 2003 with the non-parole period expiring on 7 May 2007 and the total term expiring on 7 February 2009. I note that the sentencing judge concluded that the defendant was likely to re-offend despite his earlier participation in sex offender treatment programs.
The defendant commenced in the Custody Based Intensive Treatment ("CUBIT") program in November 2005. Two months later he was charged with an internal disciplinary offence after he was found in possession of photographs cut from newspapers depicting females aged 5 to 8 in swimwear. On 18 July 2006 he was found in possession of sexually explicit material. Following a brief suspension from the CUBIT program it was completed on 24 January 2007.
The defendant was released on parole on 7 May 2008. On 19 December 2008 I made an extended supervision order for a period of 5 years, to commence on 7 February 2009: The State of New South Wales v Manners [2008] NSWSC 1376. That order expired on 6 February 2014.
On 19 April 2014 the defendant was apprehended at the Royal Easter Show taking pictures of children aged 5 to 10. The following day police seized his computer and found further child abuse material. He was charged with possession of child abuse material and on 29 January 2015 he was sentenced to imprisonment for 1 year 6 months with a non-parole period of 1 year 1 month, dating from 19 April 2014.
The defendant was released on parole on 18 May 2015. He was required to reside at a Community Offender Support Program ("COSP") centre at Long Bay and he was subject to various conditions including electronic monitoring and submission of schedules of his movements. He complied with such conditions. However, on 5 June 2015 a search of his iPad revealed that he had downloaded and stored a pornographic image of a child. His parole was revoked and he is presently serving the balance of the parole period which will expire on 18 October 2015.
The defendant was charged with using a carriage service to access child pornography and possessing child abuse material. On 15 June 2015 he pleaded guilty. Sentence proceedings have been adjourned on a number of occasions and are next listed on 2 October 2015. An application for a review of parole revocation is listed before the State Parole Authority on 13 October 2015.
The present proceedings were commenced when the plaintiff filed a summons on 18 August 2015. (An amended summons was filed two days later in order to correct a typographical error.)

An unacceptable risk of committing a further serious sex offence?

Mr Patrick Sheehan, psychologist, expressed an opinion in a report of 5 November 2008 that the defendant presented a high risk of sexual offending relative to other sexual offenders.
Dr Robert Lewin, consultant psychiatrist, in a report of 28 November 2008, expressed the diagnosis of the defendant having a Paedophilic Disorder, a characteristic of which is high levels of recidivism. Relevant to his risk of committing a further serious sexual offence were his past history, his Anxiety Disorder, and personality factors, particularly deceptiveness.
Dr Jeremy O'Dea, forensic psychiatrist, provided a report dated 8 December 2008 in which he expressed a diagnosis of Paraphilia (sexually attracted to females, not limited to incest, exclusive type). He considered that the defendant had "a significantly high risk of engaging in further sex offending behaviours in the community in the long term".
When sentencing the defendant in January 2015 to his current term of imprisonment, the presiding magistrate said: "In terms of him demonstrating that he is a person who is capable of being rehabilitated, I have serious doubts."
That remark echoed those of the judge who sentenced the defendant in 2003.
In a risk assessment report by Ms Kristy Murphy, Senior Psychologist, Sex and Violent Offender Therapeutic Programs, dated 8 June 2015 there is a description of the defendant engaging in "deceptive behaviours" during the latter part of the extended supervision order previously imposed which "raises doubts as to the veracity of his seemingly successful management of his behaviour for approximately five years since February 2009". Ms Murphy considered that the defendant was a "high risk of sexual re-offending behaviour relative to other men who have sexually offended".

Conclusion

I am satisfied on the basis of the material showing the defendant's history of sexual offending in relation to children and his apparent continued preoccupation with children in a sexual context that, if such material is proved, it could justify the making of an extended supervision order.

Orders

I make the orders set out in the document headed Short Minutes of Order which was handed up in court today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2015

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