The prison system

 

Prison time involves several stages. Pre-sentence detention in a police watch-house may be deducted from a sentence. Parole is considered after the minimum term is served and Emergency Management Days can further reduce prison time. Serious sexual offenders can be subject to supervision orders.

Reception

Possibly the most unsettling and stressful period for most prisoners is the initial period of incarceration. Most frequently, newly arrived convicted prisoners are held at Dame Phyllis Frost Centre, the MAP or Port Phillip Prison until they are classified to the most suitable prison location.

Prior to arrival at either of these locations, prisoners may be held at police cells for a limited period. Upon arrival, their money and most property is taken from them, they are strip-searched by prison officers and are medically examined. They are weighed, measured and photographed. The justifications for the use of such measures are the security, good order and management of the particular correctional facility.

The power to compel prisoners to comply with those requests is provided by the Corrections Act and Corrections Regulations. Reasonable force, as well as disciplinary proceedings, may be used on a prisoner who refuses to comply with such requests. In addition, prisoners may also be required to provide a sample of DNA to Victorian Police if, when sentenced to imprisonment, they were ordered to do so by the court under section 464ZF of the Crimes Act 1958 (Vic).

As soon as possible after reception, the prison manager must ensure that the prisoner is given, in a readily understandable manner, information that is necessary for the prisoner to understand their status and information regarding prison routine and programs. At the MAP, MRC, Port Phillip Prison and Dame Phyllis Frost Centre, the Indigenous Liaison Officer is involved in the reception process with Aboriginal and Torres Strait Islander prisoners, and aims to assist them during their time in custody.

Sentenced prisoners are obliged to wear prison clothing, which is issued to them on entry to the classification section. Remand prisoners may wear their own clothing, or can apply to wear prison clothing (s 47(1)(e) Corrections Act). Prisoners’ own clothing and other items taken from them at admission are held by the prison authorities. A full receipt must be given for these items within seven days.

The Regulations provide that storage of clothing and personal effects can in certain instances be refused, due either to the nature and quantity of the items, including those that are difficult to store, being too large, or for health reasons. There are specific requirements in respect of property that must be followed. Items stored must be returned at the time of the prisoner’s release.

Classification and placement

The classification or “sentence management” process is based on a two-tier system.

1 The Sentence Management Unit provides for a centralised system for the individual assessment of prisoners, including the development of a sentence plan that includes the determination of initial security ratings, identification of broad program needs and placement location.

2 Each prison location convenes a Review and Assessment Committee, which is responsible for monitoring the progress of prisoners at each location and providing information and recommendations to the Sentence Management Unit in relation to security ratings and placement.

The Sentence Management Unit is responsible for the placement of all prisoners. When making a decision about prisoner placement, three major principles are observed:

1 the security needs of the prisoner;

2 the management requirements for the prisoner; and

3 the prisoner’s personal needs (e.g. family visit access, employment and training opportunities, prisoner program availability).

Having been given an appropriate security rating, a prisoner is assigned to a suitable location.

The Sentence Management Panel reviews all remand and sentenced prisoners to determine appropriate security classification and prison placement. For sentenced prisoners the outcome of this process is a broad sentence plan that indicates a security rating, program requirements and recommended activities to progress the prisoner through their sentence. Once at their location, this sentence plan is used to assist in developing a local action plan that details what the prisoner will do while at that location to address identified needs.

Once the initial classification has been made by a Sentence Management Panel, the local Review and Assessment Committee will monitor the prisoner’s progress. The committee may undertake certain functions relating to sentence management under the supervision of the Sentence Management Panel.

The prisoner is not entitled to legal representation at this stage but the committee will consider written submission from friends, relatives or a solicitor. As a type of administrative decision-making, the process of classification would appear to be subject to the rules of natural justice. Failure by the Sentence Management Panel and/or the local Review and Assessment Committee to consider relevant matters and to permit prisoners to make submissions to it prior to its determination may be subject to judicial review (seeNatural justice” in Appealing government and administrative decisions).

In Badenoch v Department of Justice [2003] VSC 329 (19 August 2003) a prisoner unsuccessfully resisted his transfer from one prison facility to another, arguing that he would be unable to prepare properly for an appeal against conviction. Significant weight is ordinarily given to the decisions of correctional administrators in respect of matters such as classification. This is consistent with the recently expressed view by the Victorian Supreme Court that the process of classification is an “holistic process” and not simply a “physical and geographical matter”; see Knight v Spadano (2003) 145 A Crim R 1 at 13 per Justice Cummins.

Prisoners should ensure that they keep a written record of what has occurred between them and correctional administrators, in the event that they wish to challenge the legality of an administrative decision made in respect of them.

Male prisoners are assigned to one of the metropolitan or country male prisons, while females are accommodated in the Dame Phyllis Frost Centre or Tarrengower Prison. There are specific units provided for prisoners regarded as being in need of protection.

At any time during the period of imprisonment a prisoner may apply in writing for a change in classification. These applications are addressed to the Review and Assessment Committee of the prison where the prisoner is accommodated. The committee in turn submits the application, together with its comments and recommendations, to the Sentence Management Panel for decision.

A record of the prisoner’s classification history is contained in Section 3 of the prisoner’s Individual Management Plan (IMP) File, and may be reviewed by the prisoner upon request to correctional authorities. Other records relating to sentence management may be held in section 4 of the prisoner’s IMP File. A prisoner does not have a general right to access such documents, although a freedom of information application may be made in respect of such records.

Interstate and international transfer of prisoners

Interstate transfer of prisoners

The Prisoners (Interstate Transfer) Act 1983 (Vic) (“PIT Act”) allows for the transfer of prisoners in two situations.

1 The first situation relates to transfer for the prisoner’s welfare (ss 7–11). For instance, a prisoner who is serving a sentence in a jurisdiction with no family or friends, or for another legitimate welfare purpose, may seek to transfer to a prison in their original state or territory to complete their sentence. The process commences with the prisoner or their legal representative making a written request to the Minister for Corrections (s 7(1)(a)).

The decision to transfer is made on the basis of a determination by the minister whether the transfer is in “the interests of the welfare of the prisoner” (s 7(1)(b)). Thus, any request should address the issue of the prisoner’s welfare and how their continued imprisonment in the relevant state or territory is deleterious to how they are serving their term of imprisonment and how the transfer would be of benefit to their rehabilitation.

Note that the PIT Act provides that a minister is not required to entertain more than one application by a prisoner per year (s 9).

The transfer process may take a significant period of time between the original transfer and actual physical movement of the prisoner, so a written request should be made as soon as possible.

2 The other situation where transfer of a prisoner may occur is when a request is made by prosecuting authorities, or by the prisoner, for the prisoner to be transferred from one state or territory to another for the purpose of criminal proceedings (ss 12–19). In addition, Corrections Victoria will also consider application by prisoners to attend funerals interstate in certain circumstances.

International transfer of prisoners

The Victorian Parliament has given effect to the International Transfer of Prisoners Act 1997 (Cth) by passing the International Transfer of Prisoners (Victoria) Act 1998 (Vic). The Act envisages the transfer of prisoners to and from Australia so that they may serve their sentence of imprisonment in their country of origin (ss 7, 8).

Note that the scheme only operates with countries that have signed the relevant international treaty.

How long must a prisoner stay in prison?

At the trial, the judge sets the term of the sentence. In many cases, this includes both a maximum and a minimum term, before which the convicted person may not be released on parole. A term of imprisonment of 12 months but less than two years permits the sentencing court discretion to impose a non-parole period. For sentences longer than two years a court should impose a non-parole period unless there is very good reason not to do so. Prisoners sentenced after 22 April 1992 are not entitled to remissions and therefore not eligible for parole until they have served the minimum term of the sentence(s) imposed on them.

The release dates of prisoners sentenced before 22 April 1992, other than those sentenced for murder, are calculated taking into account the remission that a prisoner is entitled to under the provisions of section 60 of the Corrections Act (in effect, one-third of the minimum sentence).

Section 18 of the Sentencing Act provides that time spent in custody prior to conviction (remand) must be referable to (connected to) the particular offence(s) for which the prisoner is remanded in custody. Credit of time also applies to time served on remand for those sentenced before 22 April 1992.

Parole

A prisoner who has served the minimum time (less any remissions where applicable) becomes eligible for release on parole (s 74 Corrections Act). Prisoners do not need to apply for parole. Their situation will automatically be reviewed before they have served the minimum term of their sentence.

Section 61(2) of the Corrections Act states that the Adult Parole Board consists of the Secretary, and the following members appointed by the Governor-in-Council:

a one or more judges of the Supreme Court, on the recommendation of the chief justice of the Supreme Court, one of whom is appointed chairperson;

b one or more judges of the County Court, on the recommendation of the chief judge of the County Court;

c one or more magistrates, on the recommendation of the chief magistrate;

d a person appointed as a full-time member;

da one or more retired judges of the Supreme Court or the County Court or retired magistrates, appointed as part-time members;

e such persons as are appointed as part-time members.

There is also a Youth Parole Board, established under section 442 of the Children, Youth and Families Act 2005 (Vic).

Both Parole Boards have very broad discretionary powers, both as to whether or not to grant parole and as to the conditions on which parole is granted. The Corrections Act 1986 (Vic) (s 83A) provides for a range of mandatory terms and conditions that apply to any parole order. The Parole Board is also given power to impose other terms and conditions to the parole order (s 83B).

Following some high-profile cases of offenders committing offences while on parole, the decision making criteria for the granting of parole has changed. Section 73A of the Corrections Act 1986 (Vic) now requires the Parole Board to have “safety and protection of the community” as the “paramount” consideration in deciding any question related to parole. In addition, there is a Serious Violent Offender or Sexual Offender Parole Division (SVOSO Division) of the Parole Board. For sexual offenders and serious violent offenders, the SVOSO Divisions sits to determine the eligibility of such offenders. The SVOSO Division may only grant parole to a person convicted of a sexual offence or serious violent offence if, and only if, another division has recommended the prisoner be granted parole. The SVOSO Division may also refuse to grant parole even if another division of the Board has recommended the granting of parole. This, in effect, provides for a further “check and balance” on parole decision-making to ensure – and consistent with the priority given to public safety – high-risk offenders are not released prematurely.

In addition, a new offence – punishable by a maximum term of imprisonment of three months – has been introduced for offenders who breach a “prescribed” term or condition of a parole order.

In exercising its functions the Parole Board is not bound by the rules of “natural justice” (seeNatural justice” in Appealing government and administrative decisions). Legal representatives do not have standing to appear on behalf of prisoners before the Board.

A prisoner dissatisfied by a decision of the Parole Board may challenge the decision by means of judicial review in limited circumstances (see Fletcher v Secretary to the Department of Justice [2006] VSC 354 at [27]–[41] per Justice Gillard).

Other factors that can affect a sentence

Calling in fines

Prisoners can call in outstanding warrants while in custody. This is done by the prisoner filling in a form with the assistance of a correctional officer, which is then sent to the Sheriff’s Office. The Sheriff’s Office then communicates directly with the prisoner, who may seek legal advice if necessary.

There are two types of warrants:

1 warrants to arrest issued by a court; and

2 warrants issued through the Infringements Court.

Warrants to arrest do not carry a default period. The case must therefore be relisted before a Magistrates’ Court to convert it to a default period of imprisonment. Recent changes to the Sentencing Act mean that any term of imprisonment imposed in default of payment of a fine or sum of money must, unless otherwise ordered by the court, be served cumulatively on any other term of imprisonment imposed for default of payment.

The magistrate also has the discretion as to whether the default period is served concurrently or cumulatively on any other term of imprisonment (s 16(2)). If a determination is made that any time in lieu of payment of a fine be served cumulatively on the sentence the prisoner’s release date will, of course, be altered. Other options exist for fine conversion, such as to a community-based order or to allow time to pay.

Warrants through the infringements system carry a default period. However, the Sheriff’s Office can no longer deem infringement warrants served until it has been established that the prisoner has no seizable assets. If it is established that the prisoner has no seizable assets while the prisoner is in custody, the Sheriff’s Office would then be able to consider the warrants to be served concurrently with an existing sentence. (See also Fines and infringements.)

Pre-sentence detention

The court has the option of considering time spent on remand to be considered time served. For some of the remand period, the prisoner may be held in the police watch-house. When prisoners are being sentenced, it is important that they inform their legal representative or the court of the time spent on remand in a watch-house. This time is not automatically recorded by Corrections Victoria and Central Records (who calculate the length of a prisoner’s sentence on the basis of the sentence of the relevant court) and it might, therefore, not be included in pre-sentence detention calculations. Often this is not noticed until a prisoner is notified by Corrections Victoria of their release date. An incorrect declaration under section 18 can be corrected, with confirmation from the watch-house as to time spent in custody, if the sentencing magistrate or judge makes the necessary declaration.

Under the Sentencing Act, the magistrate has 14 days to correct the decision made not to grant pre-sentence detention as time spent in custody, if that was the intention. There is a residual common law discretion that allows a court to correct a sentence. Therefore, is important for prisoners, on reception into prison, ensure that they are informed of their earliest eligible release date. By doing so, they will normally become aware whether or not pre-sentence detention has been taken into account. If pre-sentence detention has not been credited, a prisoner should contact their legal representative quickly, so that the matter can be relisted before the court that imposed the sentence.

Emergency management days

Although prisoners are no longer eligible for remissions, Corrections Victoria has the discretion to reduce a prisoner’s non-parole period or, if one has not been fixed, the sentence of a prisoner, in specified circumstances (see s 58E Corrections Act).

If an industrial dispute or emergency existing in a prison means that prisoners are not able to be in the open air for at least an hour each day, as is their right (s 47(1)(a) Corrections Act), the Secretary may grant emergency management days. The number of days granted must not exceed four for each day or part of a day on which the industrial dispute or emergency exists. The Secretary can also grant up to 14 days in other circumstances of an unforeseen and special nature, or if a prisoner’s conduct has been exceptional or meritorious during the service of their sentence, for example, saving a life or fighting a fire (reg 78 Corrections Regulations).

It has been the past practice of correctional administrators to interpret the regulations concerning emergency management days narrowly, adopting a definition of circumstances of an “unforeseen or special nature” that appeared to give little weight to the deprivation suffered by prisoners. Traditionally, what constituted an “emergency” has been restricted to events that occur outside the prison, that were not in existence at the time of sentencing, and that cannot be dealt with by a special visit (reg 78). The result was that when incidents occurred within the prison – such as lockdowns for security reasons – prisoners would not receive those emergency management days.

For example, in Anderson v Pavic [2005] VSCA 244, the Court of Appeal rejected a prisoner’s request for emergency management days due to both a lockdown for a complete search of the prison, and disruption to the prisoner when his classification was changed and he was transferred.

Whether or not an incident or circumstance is regarded as an emergency or an unforeseen or special circumstance depends upon the event’s context. As such, this will be a discretionary decision made by correctional administrators.

A denial of the prisoner’s right to open air access for one hour per day because of staff shortages is not deemed to fall within the provisions of the Act and regulations regarding emergency management days. It may be that the provisions could apply if a prisoner was unable to be in the open air solely because of lockdowns caused by staff shortages, and records had been kept to determine whether sufficient open-air access was granted.

Release on licence

The federal Attorney-General may release a federal offender on licence under section 19AP of the Crimes Act 1914 (Cth). The application must be in writing and should specify the exceptional circumstance relied on to justify the grant of the licence. Exceptional circumstances are not defined, but in practice are those that occur post-sentence and that significantly affect a prisoner’s circumstances, such as extensive cooperation with law enforcement agencies, or development of a serious medical condition that cannot be adequately treated within the prison system.

Serious Sex Offenders (Detention and Supervision) Act

Some prisoners may be affected by the Serious Sex Offenders (Detention and Supervisions) Act 2009 (Vic) (“SSODS Act”), which came into effect on 1 January 2010. The Act applies to offenders who have served custodial offences for sexual offences against child and/or adult victims but who are considered an unacceptable risk of committing further relevant offences. Those “relevant offences” are sexual offences and are set out in schedule 1 of the SSODS Act.

A supervision order may be made if the court is satisfied by acceptable, cogent evidence (and to a high degree of probability) that the evidence is of sufficient weight to justify the decision that the offender poses an unacceptable risk of committing a relevant offence without a supervision order (s 9(1), (2)). An offender subject to a supervision order is likely to have significant conditions imposed upon them (ss 15–19). The court will determine the length of the supervision order, but it must not be greater than 15 years. There are review and appeal rights accorded to the offender as well as the Secretary to the DoJ and the Director of Public Prosecutions (DPP). Application may also be made for renewal and revival of supervisions orders. The supervision order is administered by the Adult Parole Board. It is an offence to breach the conditions of a supervision order (s 160).

A detention order may also be made for a period no greater than three years (s 40). The test to determine whether to impose such an order is identical to that required for a supervision order (ss 35–37). A person subject to a detention order will remain in prison for the period of the order (s 42). The key concern of the court is with unacceptable risk, and whether a detention order is necessary in all of the circumstances. Given the significant curtailment of liberty involved in such an order, and its exceptional nature – given that the offender has not actually committed any (further) offence at all – it is expected that courts concerned with these applications will examine carefully the evidentiary basis for such applications. Typically, the evidence will consist of the opinion(s) of psychological and psychiatric experts. Also relevant is the nature and extent of the offender’s prior criminal history.

Persons subject to such application should obtain legal advice early and also obtain their own psychological and psychiatric reports and other relevant information. Like supervision orders, a detention order may be also be renewed or revived in a particular case. Again, there are appeal and review rights accorded to the offender as well as the Secretary to the DoJ and the DPP. The Adult Parole Board administers the detention order.