Offences in prison

 

It is possible for a prisoner to commit offences while in prison. Where a minor offence has been committed, action may not be taken or only small consequences apply. Where a serious offence has been committed the matter will be handled by a Governor’s hearing or by an ordinary Court.

Introduction

Prison discipline is covered in part 7 of the Corrections Act.

Prison offences are defined as any contravention of the Corrections Act or the regulations. On the suspicion that a breach has occurred, the matter is reported to a disciplinary officer. The disciplinary officer, after investigating the alleged offence and after giving the prisoner an opportunity of making an explanation, may then take no further action either because they are satisfied that no offence has been committed or because the offence is trivial.

If action is to be taken, the offence must be recorded and the officer may, in addition, do one of the following:

reprimand a prisoner; or

withdraw one of the prisoner’s privileges for less than 14 days; or

charge the prisoner with the prison offence; or

take steps to have the matter dealt with under the criminal law.

The decision of the disciplinary officer cannot be appealed against, reviewed, challenged or called in question in any court.

Governor’s hearing

When a charge is laid the matter is either prosecuted by the police in the ordinary courts or a hearing is conducted by the prison manager, which is known as a “Governor’s hearing” (s 53; rr 51–59).

No legal representative is able to attend the Governor’s hearing. The prisoner is entitled to have another prisoner present. The decision of the prison manager may be reviewed if, within 30 days after the giving of notification of the decision or the reasons therefore (whichever is the later), application is made under the Administrative Law Act 1978 (Vic).

An alternative is to apply to the Supreme Court for judicial review of the prison manager’s decision, based on general principles of administrative law, such as where there has been an alleged breach of the rules of natural justice so as to prevent the prisoner from obtaining a fair hearing in relation to the alleged offence (see Henderson v Beltracchi [1999] VSC 135). VCAT has no jurisdiction to review the decision of the prison manager.

At the Governor’s hearing certain penalties can be imposed on a prisoner. These include:

a reprimand;

a fine not exceeding 1 penalty unit (from 1 July 2015, the value of 1 penalty unit is $151.67); and

withdrawal of one or more of the prisoner’s privileges for a period not exceeding 14 days for each offence committed, but not exceeding in total 30 days.

A finding of guilt by the prison manager also has other effects on the prisoner. Decisions regarding reclassification of occupation assigned or of prison accommodation are based on offences, or alleged offences.

When police are called to investigate an alleged offence in prison, they treat it like any other complaint and, if charges are laid, the complaint is heard in an ordinary court under the usual procedure for criminal prosecutions.

The decision whether to prosecute a prisoner in court for a criminal offence occurring within the prison depends upon the seriousness of the offence alleged. In less serious matters the prison authorities may exercise discretion to deal with the alleged offence in a Governor’s hearing.

Drug and alcohol offences

The penalties imposed for drug-related offences are contained in the Local Operating Procedures.

Any prisoner who becomes an identified drug user faces a penalty for a first offence of being ineligible to participate in contact visits for three months. For a second offence this is extended to six months and for a third conviction, 12 months. For a second and third offence prisoners are also ineligible to participate in special visit days with children for periods of one month and two months respectively. Such penalties are to be served concurrently and the maximum ban on contact visits is 12 months.

In addition, section 29A of the Corrections Act allows for the prison manager, in the interests of the management, good order and security of the prison, to test a prisoner at any time for drug or alcohol use. The prison manager is not required to form a reasonable suspicion. In those circumstances the provision appears to allow for random and selective testing of prisoners.

Smoking in prison

From 1 July 2015 it is an offence to possess, or use, tobacco in a Victorian prison (see Corrections Regulations 2009). This offence is subject to a maximum fine of 10 penalty units.