Introduction to prisoner offences
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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute.: the Corrections A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., 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 (see ‘Reception’ above).
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 Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). 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
- (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate..
When a charge is laid, the matter is either prosecuted by the police in the ordinary courts or a The time and place at which a court or tribunal hears the parties argue their case and makes a decision. is conducted by the prison manager or delegate, which is known as a ‘Governor’s hearing’ (s 53; reg 67).
No legal representative can attend the Governor’s hearing. The prisoner is entitled to have another prisoner present. The decision of the hearing officer may be reviewed if, within 30 days after giving notification of the decision or the reasons therefore (whichever is the later), application is made under the Rules that govern the decisions of public officials, covering their powers and functions and the procedures they have to follow. Act 1978 (Vic).
An alternative is to apply to the Supreme Court for The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act. of the hearing officer’s decision, based on general principles of administrative law, such as where there has been an alleged breach of the rules of Rules that courts, other dispute settlement bodies and government officials must follow to ensure that decisions are fair to all parties. Examples include the requirement that decision-makers act fairly, without bias, and the right of all parties involved in a case to present their side of a dispute. See also administrative law. so as to prevent the prisoner from obtaining a fair hearing in relation to the alleged offence (see Henderson v Beltracchi  VSC 135). VCAT has no The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. to review the decision of the hearing officer.
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 2020 to 30 June 2021, the value of one penalty unit is $165.22);
- 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 impacts 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 Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. to deal with the alleged offence in a Governor’s hearing.
Drug and alcohol offences
The penalties for drug-related offences are set out 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 Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. of the prison – to drug test a prisoner at any time. The prison manager does not need to be reasonably suspicious of drug use to conduct a drug test. Therefore, the Corrections Act allows 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.
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 the 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.