Prisoner offences

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

There are rules in prison that, if broken, can result in disciplinary action. These rules are in addition to the criminal law. Prison rules are determined by the relevant legislation: the Corrections Act, Corrections Regulations, Commissioner’s Requirements, Deputy Commissioner’s Instructions, Local Operating Procedures (for public prisons) and Operations Manuals (for private prisons). Prisoners should be informed of the prison’s rules during the reception phase of entering the prison (seeReception”).

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

Prison offences are defined as any contravention of the Corrections Act or Corrections 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 to explain, 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 in writing and the report given to the prisoner and to the prison manager as soon as possible. The disciplinary officer may also 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 disciplinary officer’s decision cannot be appealed against, reviewed, challenged or questioned in 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 one penalty unit (from 1 July 2018 to 30 June 2019, the value of one penalty unit is $161.19);

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 about 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 for drug-related offences are in the Local Operating Procedures for public prisons) and Operations Manuals (for private prisons).

For a first drug-related offence, prisoners face a penalty 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; the maximum period that contact visits can be banned is 12 months.

The Corrections Act (s 29A) allows the prison manager – in the interests of the management, good order and security of the prison – to drug test a prisoner at any time. The prison manager does not need to be reasonably suspicious of drug use in order to conduct a drug test. Therefore, the Corrections Act appears to allow random and selective drug testing of prisoners.

Smoking in prison

Since 1 July 2015, it has been an offence to possess or use tobacco in a Victorian prison. This offence is subject to a maximum fine of 10 penalty units.

Drones ban

Since 1 February 2018, it has been an offence to possess or operate a remotely piloted aircraft (also known as a “drone”) within 120 metres above or around the boundary of a Victorian prison. This offence carries a maximum penalty of two years imprisonment. This ban was introduced to prevent drones from smuggling contraband (e.g. drugs, weapons and mobile phones) into prisons. The law only applies to conduct that intentionally or recklessly threatens to good order or security of a prison. A person recklessly operates a drone if they are aware that their drone is probably within the boundary. Accidental or unintentional behaviour is excused.