Manna v State of New South Wales

1. [1]

   Adriano Giuseppe Manna (the “applicant” or “Mr Manna”) applies for the revocation of an extended supervision order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). The ESO was made by Walton J on 24 April 2017. [1] In the alternative, the applicant asks the Court to vary or delete some of the conditions of the ESO. The applicant does not challenge the correctness of Walton J’s decision but complains that the conditions under the ESO are, or have become, unnecessarily onerous and that he has shown sufficient progress to warrant an easing of the strictures of some aspects of the ESO. The State of New South Wales (the “State” or the “respondent”) opposes the revocation of the ESO, but accepts that some variation of the conditions may be appropriate. The application for revocation should be dismissed but the conditions of the ESO should be relaxed in the manner set out below. These are my reasons for those conclusions and orders.

2. [2]

   The application was presented in a somewhat chaotic manner with parts of the evidence being tendered in dribs and drabs as the case progressed over two days and during the course of the cross-examination of Kelli Grabham. Ms Grabham described her position as the “High Risk Offender Applications and Operational Governance Officer and On-Call Manager in the Extended Supervision Order Team”. The chaos was caused in part by difficulties associated with all lawyers and witnesses appearing remotely (due to COVID restrictions and compliance with Public Health Orders). There was also uncertainty on the part of the cross-examiner as to which parts of the State’s file had been tendered.

3. [3]

   The State provided a “working folder” in advance of the first day of the hearing and this contained most of the material relied on by the parties as well as written submissions prepared by counsel for both sides. However, a number of other documents were produced and tendered in the course of the hearing. Some of the documents upon which the applicant placed reliance were case notes from the Corrective Services NSW Offender Integrated Management System (“OIMS”). By the time the oral submissions were concluded and judgment was reserved, the following material had been tendered into evidence or marked for identification:

4. [4]

   The applicant, his father and Ms Grabham were called to give evidence and were cross-examined. I have considered all of the above material along with the oral evidence given by three witnesses in the course of the hearing. It is unnecessary to provide a detailed summary of the evidence, including the earlier judgments of this Court and relevant sentencing courts, to elucidate the reasons for my decision.

5. [5]

   The matter was initially listed for one day on 2 August 2021. The cross-examination of Ms Grabham exceeded expectations, at least in terms of its duration, and there were a number of technical difficulties with the virtual courtroom. As a result, Ms Grabham’s cross-examination did not conclude. The matter was adjourned for further cross-examination and oral submissions to the 12 August 2021. It did not proceed on that date because Senior Counsel for the applicant was not well. The matter was adjourned to 27 August 2021 and the hearing concluded on that day.

Legislation

1. [6]

   Section 13 of the Act provides:

2. [7]

   The Court has a broad discretion to vary or revoke an ESO, subject to the objects of the Act: New South Wales v Kay [2018] NSWSC 1235 at [66] (Wilson J). The “primary object” of the Act is to ensure the safety and protection of the community: s 3(1) of the Act. “Another object” is to encourage high risk offenders to undertake rehabilitation: s 3(2) of the Act.

Primary application: revocation of the ESO

1. [8]

   The ESO was made by Walton J on 24 April 2017 for a period of five years but, in accordance with the Act, it was suspended when the applicant was in custody for breaches of the ESO. I was told, and it seemed to be agreed, that the ESO is now due to expire on 7 September 2023. Walton J determined that there was a “high degree of probability that the defendant poses an unacceptable risk of committing a serious [violent] offence”, based on the applicant’s history of violent offending and the opinions expressed by the court-appointed experts, Dr Andrew Ellis and Dr Jeremy O’Dea. [4] Walton J refused to make a continuing detention order. On the present application, the applicant did not contest any aspect of his Honour’s decision.

2. [9]

   The offence upon which the ESO was founded (“the index offence”) was extremely serious. [5] At 23 years old, the applicant was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years, following his plea of guilty to one count of wound with intent to murder, on 12 September 1997. The applicant approached the victim and demanded money while the victim was re-stocking a vending machine. The victim said he did not have keys to the safe but that he could give the applicant the keys to the vending machines. As the victim reached into his pocket for the keys, the applicant shot him five times. The bullets struck the victim in his chest, face, left elbow, right hand and left thigh. The last four bullets were fired at the victim while he was lying on the ground. The whole incident was witnessed by the victim’s seven-year-old son. The victim required extensive surgery and was left with permanent disabilities.

3. [10]

   While a significant period has passed since the index offence, the applicant’s custodial history reveals relatively recent transgressions involving allegations of violence or, at least, aggression. He was disciplined for fighting or other physical combat in 2016 and, most recently, in October 2018. The applicant was also convicted of common assault in December 2014 and stalking or intimidation in September 2018.

4. [11]

   The applicant has also been convicted of multiple offences of failing to comply with the ESO on two separate occasions. The second set of offences, involving four breaches of the ESO, occurred in late 2018 and early 2019. These involved the applicant associating with members of outlaw motorcycle gangs (“OMCGs”).

5. [12]

   A recent report to the Attorney-General dated 10 June 2021 expressed a positive view as to the applicant’s progress. The report stated that the applicant is currently at “stage 2” monitoring, requiring electronic monitoring and a weekly schedule of movements. It recommended progression to “stage 3”, where the applicant would no longer need to provide a schedule of movements. The report concluded:

6. [13]

   The applicant’s good employment record, and lack of any serious charges since early 2019, establish that he is making positive progress towards rehabilitation. However, because of the seriousness of the index offence, recent aggressive behaviour, and the indication that he maintains some inappropriate associations with members of OMCGs, I am not satisfied that the change of circumstances warrants the revocation of the ESO. I am fortified in that conclusion by the opinions expressed by the court-appointed experts. In particular, the experts were of the view that to monitor and mitigate Mr Manna’s risk factors, the period of supervision should be at least five years.

7. [14]

   For those reasons, the application to revoke the ESO will be dismissed.

Application to vary the ESO

1. [15]

   However, I am satisfied that it is appropriate to make some significant amendments to the conditions of the ESO. Speaking generally, this is because of the applicant’s progress, age and recent health issues. I am also concerned by evidence of several occasions where the ESO has been administered in a seemingly inconsistent, harsh and capricious manner. I am not satisfied that these instances had any genuine capacity to advance the protection of the community. Potentially, they had the opposite effect insofar as it caused frustration in Mr Manna and interfered with his efforts to live a normal life and make progress towards rehabilitation. In making this finding, I do not mean to criticise any individual officer, none of whom was cross-examined and given the opportunity to defend their decision making. Rather, extensive cross-examination was directed to Ms Grabham, who was reliant on her far from perfect knowledge of the case notes which ran to well over 1,000 pages. I do not accept the criticism of Ms Grabham that was implicit in the tenor and tone of the cross-examination, although I found some of her answers to be somewhat defensive and calculated to justify the actions of her colleagues.

2. [16]

   I will provide just a few examples of occasions when the conditions have been enforced in a way that I am unable to find advances the objectives of the legislation:

3. [17]

   It is not surprising that the applicant has experienced and expressed frustration in relation to these and other matters.

4. [18]

   In May of 2020, the applicant suffered a serious heart attack that required a quadruple bypass. His cardiologist advised that Mr Manna should not see a psychologist for a period of two months as it would cause undue stress and provided a letter to the ESO officers to that effect. After receiving that letter, an ESO officer “reminded [Mr] Manna that he would still have the obligation to attend psychological [appointments] at a time set by his treating psychologist”. [7]

5. [19]

   The applicant’s father, Salvatore Manna, provided evidence that he and his wife were forced to move out of the applicant’s home because of the stress and anxiety they felt from frequent “police raids”. Mr Manna Snr said that “the police” would often bring dogs which added to the “chaos” and that they would leave a “trail of destruction” in the wake of their searches. [8] The damage included, for example, “bite marks in [the] toilet seat from one of the police dogs, cupboards in the hallway emptied, as well as bedroom cupboards”. [9] The witness was cross-examined by counsel for the State about which “group” within the NSW Police Force were conducting these raids and, unsurprisingly, Mr Manna was unable to identify whether the police were connected to the administration of the ESO or some other enforcement group.

6. [20]

   None of what I have written should be taken as a finding that the ESO has generally operated in an oppressive way. I do not accept that it has. On the evidence before me it seems the majority of decisions made were reasonable and understandable. Some apparent breaches of the ESO have been allowed to pass or resulted in no more than a warning letter. The comparison made to the situation that prevailed in the case of State of New South Wales v Carr was misconceived. [10] No sensible comparison can be made with what happened to Mr Carr.

7. [21]

   However, on the whole of the evidence, I am satisfied that some of the conditions, and the way they have been administered, are counter-productive in terms of the applicant’s rehabilitation and do not otherwise advance the primary objective of the Act, which is to say the protection and safety of the community. Counsel for the respondent conceded that certain conditions could be amended and proposed some reasonable amendments.

8. [22]

   I am satisfied the change in circumstances justify a number of variations to the conditions of the ESO and that some of the conditions should be deleted altogether.

Variations to the conditions of the ESO

1. [23]

   I propose to delete the conditions relating to electronic monitoring and the requirement that the accused provide a schedule of movements (conditions 4, 5, 6, 7, 8 and 9). The requirement in condition 10 - that Mr Manna answers questions from his DSO as to his whereabouts truthfully – will remain.

2. [24]

   The deletion of conditions 4 - 9 will be conditional and subject to the proviso that the DSO can re-introduce those conditions if Mr Manna is found to have breached the ESO.

3. [25]

   I do not propose to delete or vary the accommodation and curfew conditions in conditions 11 - 15. I see no compelling evidence that these conditions have operated harshly. The conditions are important to allow the DSO to monitor the applicant’s residential status and some of his associations.

4. [26]

   I will amend condition 21 in accordance with the suggestion made by the State by adding the words:

5. [27]

   Condition 26 will be amended by inserting the words “except for a licensed restaurant which is not attached to a hotel or club”. This amendment is calculated to provide the applicant with more freedom of choice and movement and to encourage his return to a normal life in the community.

6. [28]

   I do not propose to make any change to condition 28 which provides the applicant must not associate with people the DSO tells him not to. However, in reaching that decision, I note the undertaking of the State that its employees will re-issue a direction relating to the non-association condition at the “next practical opportunity” in the following terms:

7. [29]

   My expectation is that members of the applicant’s extended family will not be subject to the kinds of restrictions and formalities that have bedevilled the enforcement of the conditions attached to the ESO to this point. I considered amending condition 28 by inserting something along the lines of “The DSO cannot direct the applicant not to associate with members of his family and extended family”. However, the DSO may have information, such as knowledge of criminal associations or conduct, which means that some family members are inappropriate contacts for the applicant at this stage of his rehabilitation. If the expectation expressed in the first sentence of this paragraph turns out to be ill-founded, it will be open to the applicant to seek a further variation to the conditions.

8. [30]

   Condition 29 will be amended. This condition has caused a number of problems that have been explored in the evidence. The condition prohibits the applicant from associating with any people who are consuming, or under the influence of, illegal drugs or alcohol. It will be amended to delete the words “or alcohol”. The applicant remains forbidden from drinking alcohol himself (condition 24) and entering licensed premises apart from a licensed restaurant (condition 26, as varied today). He is also required to submit to testing for drugs and alcohol (condition 25) and to attend drug and alcohol rehabilitation programmes if required (condition 27). I have considered the State’s proposal to add conditions 29A and 29B in an attempt to make condition 29 more workable but have concluded the better course is to allow Mr Manna this greater freedom; that is, to allow him to be in the presence of people who are drinking. [12] He remains prohibited from associating with people who are consuming illegal drugs because this may prevent him from having associations with people who may be involved in illegal activities more generally. However, the alcohol aspect of this conditions has operated harshly. Many people in the community drink alcohol and most are able to keep their consumption to manageable levels.

9. [31]

   In spite of the evidence of the applicant and his father, I am not persuaded that the search and seizure conditions (conditions 36 – 40) should be deleted at this stage. However, I will add sub-clause (c) and (d) to condition 37, as conceded by the State, in order to require greater accountability on the part of the officers who decide to conduct such a search. I will also add a sub-clause (e), as proposed by the applicant for the same reasons. Those sub-clauses are in the following terms:

10. [32]

    I will make orders giving effect to these decisions. For the sake of clarity, annexed to this judgment is a document marked “A” which sets out all of the conditions of the ESO which will apply from the time of making these orders.

Costs

1. [33]

   At the end of the hearing Senior Counsel made the following submission:

2. [34]

   Costs generally follow the cause but ultimately an award of costs is the result of the exercise of discretion and calculated to achieve justice in the circumstances of the case.

3. [35]

   The applicant’s primary position – that the ESO be revoked – has been rejected. In view of the unchallenged findings of Walton J, the nature of the index offence, and more recent transgressions outlined in this judgment, the application for revocation did not have much merit, or was at least precipitous. The applicant has had mixed success on his secondary application, seeking variation to the conditions. The respondent took a reasonably restrained approach to this issue and proposed a compromise position in its submissions (which had not been read by the applicant’s lawyers when the case commenced). I adjourned for a short while to allow Senior Counsel time to read the submissions. Its primary position was pressed. I have adopted some, but not all, of the proposals suggested by the State. On the whole, the variations I have made vindicate that aspect of the Mr Manna’s application. The second day of the hearing was lost for reasons that had nothing to do with the State or its lawyers who were ready to proceed. I accept that cross-examination of Ms Grabham, or somebody charged with the responsibility of administering the ESO, was necessary. However, the case exceeded its estimate (one day) because of the length of the cross-examination. I accept that some of the delay was caused as a result of technological glitches, but some was caused from the inefficient conduct of the case.

4. [36]

   Doing the best I can to achieve a just and reasonable outcome, I am provisionally of the view that the State should pay 25% of the applicant’s legal costs as assessed or agreed and based on reasonable preparation and a two day hearing. However, I will allow the parties seven days to provide submissions on this issue or, ideally, to agree on a form of order that includes a fixed amount of costs.

5. [37]

   For those reasons, I make the following orders:

   1. (1)

      The application to revoke the Extended Supervision Order (“ESO”) is dismissed.

   2. (2)

      The following variations are made to the ESO:

   3. (3)

      Orders (1) and (2) are to take effect immediately.

   4. (4)

      Subject to the parties making written submissions or reaching agreement on the issue of costs, the respondent (State of New South Wales) is to pay 25% of the applicant’s (Adriano Giuseppe Manna’s) legal costs as agreed or assessed and based on reasonable preparation and a two-day hearing.

   5. (5)

      Written submissions in relation to costs are to be no greater than 4 pages in length and filed on or before 4pm on Thursday 7 October 2021.