All references to sections of legislation in this chapter are, unless otherwise stated, references to sections of the Crimes (Administration of Sentences) Act 1999.
The Crimes (Administration of Sentences) Act 1999 makes provision, inter alia, for breaches by inmates against correctional centre discipline to be dealt with by a magistrate, designated as a visiting magistrate, in the correctional centre complex.
[82-020] Visiting magistrates — s 227
Section 227 provides that for each correctional complex or correctional centre there shall be a visiting magistrate, being a magistrate appointed by the Chief Magistrate. Before performing duty at any particular correctional centre, a magistrate should enquire as to whether he or she has been appointed as a visiting magistrate to that correctional centre.
Visiting magistrates should always carry a magistrate’s identification card as proof of identity may be required: cl 93 Crimes (Administration of Sentences) Regulation 2014.
Correctional centre inspections — s 229
A visiting magistrate and indeed any magistrate may visit and examine any correctional complex or correctional centre at any time he or she thinks fit. There is, however, no longer any requirement of a visiting magistrate to examine the correctional centre.
Inquiries — s 230
Section 230 makes provision for the holding of an inquiry and reporting upon any matter relating to the security, good order, control and management of a correctional complex or correctional centre. Such inquiries have certain powers, as outlined in s 230, under the Royal Commissions Act 1923. Such an inquiry is at the request of the Minister and is quite distinct and separate from the general visiting magistrate hearings mentioned below.
Breach of correctional centre discipline — s 51
Pursuant to s 51 of the Act, the regulations may provide that contravention (by act or omission) of certain provisions of the regulations by an inmate is declared to be a correctional centre offence if it occurs while the inmate is within a correctional centre or is deemed to be in the custody of the Governor of a correctional centre.
Contravention of certain regulations may be dealt with by the Governor if satisfied beyond reasonable doubt that the allegation has been proved and may impose one of a specified number of penalties: s 53.
[82-040] Jurisdiction of visiting magistrate — s 54
A visiting magistrate to a correctional centre may hear and determine any matter referred to him by the Governor of a correctional centre where an inmate has been charged by the Governor with a correctional centre offence.
The Governor may refer all matters where the Governor is satisfied the seriousness of the matter is such that it should be referred to a visiting magistrate: see s 54.
The visiting magistrate has jurisdiction to hear an allegation of a breach of correctional centre discipline if such offence allegedly occurred while the inmate was within a correctional centre or was deemed to be in the custody of the Governor of a correctional centre: s 55. It may be dealt with even though the breach occurred while the inmate was within another correctional complex or correctional centre or in the custody of the Governor of another correctional centre: see s 65.
Section 55(5) provides: Any hearing in proceedings before a visiting magistrate shall be held:
in the correctional centre at which the inmate is in custody; or
if the visiting magistrate is satisfied that it is in the interests of justice for it to be held elsewhere — at any other place appointed by the magistrate.
The Act makes provision for the appearance of inmates and/or witnesses by way of audio visual link where those facilities are reasonably available: s 55(5A)–(5B).
Transfer of proceedings to another correctional centre — s 55(6)
A visiting magistrate may transfer proceedings to the visiting magistrate for another correctional centre to which the inmate has been transferred: s 55(6).
Transfer of proceedings to a Local Court — s 58
If the visiting magistrate, on the hearing of a charge against an inmate, is of the opinion that the alleged offence could be prosecuted either summarily in a local court or on indictment, and that it should be so prosecuted, the visiting magistrate shall terminate the hearing and order the inmate to be conveyed to a local court to be dealt with according to law: s 58.
[82-060] Procedure at hearings before a visiting magistrate — s 55
The Crimes (Administration of Sentences) Act provides that procedures under the Criminal Procedure Act 1986 apply in relation to hearings before a visiting magistrate, subject to any modifications prescribed by regulations or as the visiting magistrate considers appropriate: s 55. There is nothing in the regulations to modify procedure.
The hearing of a breach of correctional centre discipline is, procedurally, the same as hearing any other criminal case in a local court, whether it is being dealt with as a plea of guilty or a plea of not guilty. The location is naturally different. Generally matters are heard in a room set aside in the correctional centre. Parties sit at desks suitably located around the room. Evidence is usually recorded, either by a shorthand writer or by sound recording, depending upon the location. See Sch 3 cl 13 Criminal Procedure Act.
Section 55(5A) provides for the hearing of proceedings or the giving of evidence by way of audio visual link from the correctional centre where the defendant or any inmate called as a witness is in custody. The magistrate may also direct other persons, not being inmates, to give evidence by audio visual link. Procedural fairness must apply: s 55(5B).
Sections 5D, 20A, 20B and 20D–F of the Evidence (Audio and Audio Visual Link) Act 1998 apply with such modifications as the magistrate sees fit.
The Prosecution is conducted by a legal officer from the Department of Corrective Services. Sometimes, in the country, local practitioners prosecute under instruction from the Department of Corrective Services. The inmate is entitled to be represented by a barrister or solicitor: s 55(4). This is usually attended to by a solicitor from the Legal Aid Commission.
A correctional centre officer invariably is assigned to assist by calling witnesses and swearing in those witnesses.
Adjournments are dealt with in the same manner as in the local court. As to the listing of defended matters, in the Sydney metropolitan area the diary is maintained by the officer of the Department of Corrective Services. Those visiting magistrates at other correctional centres maintain their own diary.
Standard of proof — s 56
The standard of proof required when a plea of not guilty has been entered to a charge is the criminal standard, beyond a reasonable doubt: s 56.
After receiving a plea of guilty or finding an allegation proved, the visiting magistrate will receive from the prosecution details of the time the inmate has spent in a correctional centre and whether or not there have been other breaches of correctional centre discipline. Criminal convictions will not be tendered and are not relevant to determine what, if any, penalty should be imposed.
[82-080] Penalties — s 56 and cl 163
Section 56 provides that one and no more than one of a number of penalties may be imposed by the visiting magistrate. The penalties are:
Reprimand and caution;
Deprivation, for up to 90 days, of such withdrawable privileges as the visiting magistrate may determine.
The following amenities or privileges have been prescribed: cl 163 Crimes (Administration of Sentences) Regulation 2014:
attendance at the showing of films or videos or at concerts or other performances,
participation in or attendance at any other organised leisure time activity,
use of, or access to, films, video tapes, records, cassettes, CDs or DVDs,
use of, or access to, television, radio or video, cassette, CD or DVD players, whether for personal use or for use as a member of a group,
use of, or access to, a musical instrument, whether for personal use or for use as a member of a group
use of library facilities, except in so far as their use is necessary to enable study or research to be undertaken by an inmate in the inmate’s capacity as a student who is enrolled in a course of study or training,
ability to purchase goods (including under cl 177),
keeping of approved personal property (including goods purchased or hired under cl 177),
pursuit of a hobby,
use of telephone, except for calls to legal practitioners and exempt bodies,
participation in contact visits,
permission to be absent from a correctional centre under a local leave permit or interstate leave permit.
Confinement to a cell for up to 28 days, with or without deprivation of withdrawable privileges;
Cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs;
Extension, by up to at 6 months at a time, of:
the term of the inmate’s sentence, and
in the case of an offence occurring during a non-parole period of the inmate’s sentence, the non-parole period of the sentence;
Imposition of a sentence of imprisonment for a period not exceeding 6 mths.
Section 56A: A special penalty is provided for possession of a mobile phone, a SIM card, a mobile phone charger, or any part of any of those items. Offenders may be deprived of withdrawable privileges as may be defined for a period of up to 6 months, rather that the 90 days otherwise provided by s 56.
Although the allegation is proved, the visiting magistrate, if of the opinion that a penalty should not be imposed, may dismiss the charge: s 56(2).
Penalties (2), (3) and (4) above take effect immediately. It is not unusual to receive a request that, for example, confinement to cells commence sometime in the future to allow a visit to take place the next day. There is no power in the Act to date those penalties from some date in the future.
[82-100] Cumulative punishment — s 60
Section 60 of the Crimes (Administration of Sentences) Act provides that if:
an inmate is charged with two or more correctional centre offences; and
those charges are determined together or arise out of a single incident;
any cumulative penalties imposed for those offences must not, in respect of any particular kind of penalty, exceed the maximum penalty that may be imposed in relation to a single correctional centre offence.
Compensation — s 59
A visiting magistrate may order an inmate, if such inmate has caused any loss of or damage to property as the result of committing a correctional centre offence, to pay compensation, to the Crown or, if the property belongs to some other person, to that other person. The compensation is paid out of any money held by a Governor on behalf of an inmate or out of any other money otherwise payable to the inmate under the Act or regulations: s 59. Compensation cases are nearly always referred to the magistrate as the Governor is limited to $500 compensation. There is no longer any monetary limit under the Act for magistrates.
Recording of punishment — s 61
It is mandatory for a Governor to cause to be recorded, when a punishment is imposed, the following:
a statement of the nature and date of the offence;
the name of the inmate;
the date of sentence;
the penalty imposed; and
any order under s 59 for the payment of compensation.
[82-120] Appeals against decisions of visiting magistrates — s 62
An inmate may appeal to the District Court under Pt 3 Crimes (Appeal and Review) Act 2001, as if the penalty were a sentence from a court attendance notice dealt with under the Criminal Procedure Act.
[82-140] Other criminal proceedings for the same offence — s 63
Section 63 provides:
For the purpose of determining whether proceedings for a criminal offence may be brought for the act or omission giving rise to a correctional centre offence, the decision of a visiting magistrate in proceedings for the correctional centre offence is taken to be the decision of a court in proceedings for a criminal offence.
Proceedings for a correctional centre offence are not to be commenced or continued under this Division if proceedings for a criminal offence have been commenced in a court for the act or omission giving rise to the correctional centre offence.