Sentencing Trends No 21 — Protective Custody and Hardship in Prison

Protective Custody and Hardship in Prison

Lynne A Barnes, Research Officer

Introduction

The protection of offenders from violence while in custody is not an issue that is generally considered to be particularly newsworthy. However, the recent criminal cases of high profile Sydney identities, John Laws and Val Bellamy, have seen the issue of protective custody become the subject of media attention.

In the case of the well-known radio presenter, John Laws,¹ the sentencing judge, Wood CJ at CL, raised the issue when he declined to impose a custodial sentence, to be served by way of periodic detention, because of his concern for Laws’s safety. Protection from potential violence at the hands of other inmates was also raised in the former criminal lawyer Val Bellamy’s case.² However, the fact that Bellamy would have to serve his sentence in protective custody did not prevent Blanch DCJ from imposing a full time custodial sentence.

There is very little information available about inmates in protective custody or the conditions under which they are detained. What little information is available has emerged from appeal cases and from research on other areas of imprisonment.³ Such research has shown that the conditions faced by inmates in protective custody are broadly similar, irrespective of the jurisdiction in which they are detained.⁴

The aim of this paper is to provide a comprehensive overview of protective custody, including the relevant law and the main issues associated with offenders who are detained in this form of custody.

Increasing use of protective custody

While the total number of inmates detained in full time custody in New South Wales has increased substantially since 1996, so too has the number of inmates being held in protective custody. In fact, the rate of increase in raw numbers of inmates in protective custody is higher (83.1 %), than the rate of increase of full time inmates (18.7%). In other words, the rate of increase in the numbers of inmates in protection is 4.4 times that of inmates in full time custody.

In New South Wales, on 7 April 1996, there were 6,211 inmates in full time custody,⁵ of whom 704 (11.3%) were in protective custody. Five years later, on 2 April 2000, the number of inmates held in full time custody had increased to 7,372, with 1,289 (17.4%) in protective custody⁶ (see Figure 1).

Figure 1
Inmates in protective custody as a percentage of the total number of inmates in full time custody in NSW correctional facilities, between 7 April 1996 – 2 April 2000

 

The number of female inmates held in protective custody is also increasing. On 7 April 1996, there were 194 female inmates in full time custody in Mulawa, of whom 14 were held in protective custody. By 2 April 2000, the number had increased to 278, with 22 in protective custody. Except for the last week in January 2000, when the number of females in protection fell to 16, the number of inmates in protective custody at Mulawa from 5 December 1999 to 19 March 2000 remained in the high twenties and low thirties. The highest recorded number of female inmates held in protection in Mulawa was 33 inmates, on 19 December 1999.

Correctional facilities housing protective custody inmates

Not all correctional facilities in New South Wales are classified by the Department of Corrective Services as gaols or centres for protection,⁷ nevertheless, some correctional facilities house offenders in protective custody on a temporary basis while they are on short-term remand, or in transit.

With the increasing number of offenders held in protective custody, a placement in a suitable protection facility may not always be immediate, and some inmates will have to spend varying periods of time in protection in a transit facility before being moved to the correctional gaol or centre to which they have been classified. The NSW Department of Corrective Services’s decision to classify an offender to a particular correctional facility depends on a number of factors; for example, the offender’s security classification and legal status (sentenced or unsentenced), the offence that was committed, and the level of protection required. (See Table 1)

Table 1
The types of protective custody available in NSW correctional facilities as at 31 May 2000

The NSW Department of Corrective Service’s Weekly States show that, on 2 April 2000, there were 14 correctional facilities in New South Wales housing offenders in protective custody.⁸ These facilities have security ratings ranging from minimum to maximum, and are located in both the Sydney metropolitan and country areas of New South Wales. Figure 2 provides some insight into the proportion of offenders held in ordinary custody, protection and segregation at each of these correctional facilities.

Figure 2
NSW correctional facilities housing protection inmates at 2 April 2000

 

Responsibility for the safety of inmates

Correctional authorities have a duty of care for the safety of inmates,⁹ including the prevention of physical attack from other inmates.¹⁰ This duty of care is founded on the legislation under which gaols operate and the law of negligence. It is the relationship that exists between the inmate and the gaoler, or the correctional authority responsible for the control and custody of the inmate, which gives rise to a positive duty of care to take reasonable steps for the safety of the inmate while the inmate is under the control of the gaoler or correctional authority. The duty extends to the protection of inmates against risks that are reasonably foreseeable, with the standard of care being that which the ordinary person would regard as reasonable in all the circumstances of the particular case.

Defining protective custody

Inmates can be detained in full time custody and separated from the mainstream gaol population by either segregation or protection. The term “segregation” is sometimes used as a generic term for protective custody.¹¹1However, there is an important difference. Broadly speaking, the reason an inmate is held in segregation is to protect others from the inmate. The aim of protective custody, on the other hand, is to protect the inmate from other inmates. Further, the number of inmates held in segregation at any one time is relatively small when compared to the number of inmates held in protective custody.¹²

The relevant legislation and guidelines

The legislation governing the management of inmates held in segregation or protective custody is found in the Crimes (Administration of Sentences) Act 1999 (Division 2 of Part 2, ss 9-22),¹³ Crimes (Administration of Sentences) (Correctional Centre Administration) Regulation 1995, and the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995. In addition to the legislation, the Standard Guidelines for Corrections in Australia 1996,¹⁴ while not legally binding, are meant to “set standards for conduct in Australian gaols…[and] provide a base for protecting human rights in corrections in Australia.”¹⁵ The NSW Department of Corrective Services’s Procedure Manual gives effect to the department’s responsibilities under the legislation that affects inmates held in segregation or protective custody.

The power to make protection directions

The reasons for confining an inmate in segregation or protective custody, and the distinction between the two forms of custody, are found in ss 10 and 11 of the Crimes (Administration of Sentences) Act 1999 (the Act). Pursuant to s 10 of the Act, the Commissioner or the governor of the correctional centre may direct that an inmate be held in segregation if he or she is of the opinion that the association of the inmate with other inmates is or is likely to be a threat to –

• the personal safety of any other person; or
• the security of the correctional centre; or
• good order and discipline within the correctional centre.

Similarly, s 11 of the Act provides that the Commissioner or governor may direct that an inmate be held in protective custody for his or her protection from other inmates.

The effect of a segregation or protective custody direction under ss 10 or 11 of the Act is that the inmate will be held in custody either in isolation from other inmates or only with similar inmates.¹⁶ In other words, in relation to inmates in protection, it is the threat or likely threat to the inmate’s safety when associating with other inmates that governs the inmate’s level of protection.

Types of protective custody: normal and strict

There are two types of protective custody: normal and strict protection. Normal protection contains the largest group of protectees who are free to associate with all other inmates in normal protection. Strict protection contains inmates removed from the pool of normal protection inmates because they are in need of protection from other protectees. The only difference in the management of strict and normal protection inmates is in the group of inmates with whom they associate.

Within strict protection there are some inmates who do not wish to associate even with other strict protectees, and these protectees are held in what could be termed strict strict protective custody. Table 2 shows the number of male protectees held in ordinary and strict protection in all New South Wales correctional facilities on 31 July 2000.¹⁷

Table 2
Male inmates in ordinary and strict protection in NSW correctional facilities on 31 July 2000

Duration of protective custody

The legislation¹⁸ clearly sets out the periods of time that an inmate may be held in segregation or protective custody, and the procedures to be followed by the authorities when extending the initial period of time in segregation or protection.

The following procedures do not apply to a request for an extension of time granted at the request of the inmate.¹⁹ An inmate may not be held in either form of custody for more than 14 days,²⁰ unless on the direction of the Commissioner, and then for not longer than three months of continuous segregated or protective custody.²¹ The Commissioner may extend the period of time for three months,²² and must notify the Minister when making an extension direction that will result in the inmate being subject to a total continuous period of segregated or protective custody exceeding six months, or if the inmate has already been subject to either form of custody for a continuous period of six months.²³ Extensions of time for inmates in protective custody who are serving sentences in excess of six months are incorporated within the inmate’s six monthly classification review.

All directions and the reason(s) for those directions must be in writing.²⁴ The reason(s) for an extension may differ from the original reason that the inmate was placed in segregation or protective custody.²⁵ While the Commissioner may revoke a segregation or protective custody direction at any time,²⁶ 1he or she must revoke a protective custody direction that was granted at the request of an inmate if the inmate requests the Commissioner in writing to revoke it.²⁷ The Minister may confirm, revoke or amend any extension direction.²⁸

An inmate held in segregation or protective custody may seek a review of the direction ordering such custody from the Serious Offenders Review Council,²⁹ which may make a direction suspending such custody directions.³⁰The Council may also order the inmate be removed to a different correctional facility.³¹

Avenues to protective custody

There are two primary ways in which an offender may be placed in protective custody, at the offender’s request (the most common situation) or under a protective custody direction.

An offender may make a request for protection as a result of the offender’s own assessment of his or her safety while in custody,³² or as a result of acting on advice from others (the police, legal representatives, family, friends, correctional staff or other offenders). The NSW Corrective Services’s Procedure Manual³³ states that governors “shall only consider segregating an inmate, or placing an inmate in protective custody, where there are no other means of managing them.” Correctional staff are expected to make sure that any inmate requesting protective custody fully understands the implications of this form of custody before granting such a request. There is anecdotal evidence to suggest that some remandees are requesting protective custody as a strategy to gain bail after it has been initially refused, obtain a lower sentence if they are found guilty at trial, or as a ground on appeal. An observation made by a senior spokesperson for the NSW Department of Corrective Services is that some inmates request to be placed in protection in order to be moved from one correctional facility to another.

The fear of violence at the hands of other inmates that results in a request for protection may be a direct consequence of –

• the type of crime for which the offender is in custody (child sex offenders,³⁴ child murderers);³⁵
• providing assistance to authorities (usually to police in drug or robbery cases);³⁶
• providing information to gaol authorities against another offender(s) for offences committed while in custody;³⁷
• the high profile of the offender (as a result of extensive media coverage of the crime and/or the trial, or the status of the offender in the community);³⁸
• interpersonal conflict with other offenders;³⁹
• physical or mental characteristics which make the offender particularly vulnerable (youth, agedness, physical stature, physical or mental health, sexual orientation);⁴⁰
• prior occupation or relationship⁴¹ with someone in a law enforcement or criminal justice occupation, police officer,⁴² gaol guard,⁴³ member of the judiciary or executive.

Halloran, in a paper⁴⁴ on male protection inmates at Junee gaol in February 1997, found that inmates could be placed into five groups based on the reasons they were in protective custody. These groups were –

• targets of sexual or physical aggression (25%);
• perceived informers (30%);
• avoiders of retaliation (40%);
• sufferers of generic fears or phobias (3%); and
• inmates acting on legal or family advice (2%).

Halloran argues that the first group, the targets of sexual or physical aggression, is the group in which significant reductions can be made through appropriate strategies. This group is comprised mainly of young, middle-aged and older first timers, young inmates who had been previously assaulted, and inmates from the general population who had been threatened, or feel threatened by, the experience of incarceration.

Halloran suggests that inmates sentenced for the first time or on remand, and other vulnerable inmates, should be placed in special areas or correctional centres, and they should have a prolonged induction period to assist them in coming to terms with their situation, before the issue of protection is discussed. The author also suggests court and reception staff should be trained in protection issues and procedures.

Another way in which an offender may be placed in protection is following a recommendation by the sentencing judge⁴⁵ to the Department of Corrective Services that the offender should be held in protective custody. A sentencing judge is often privy to information, unavailable to others, which clearly shows that the offender will be in danger if he or she is held in custody in the mainstream gaol population.

Finally, an offender may also be placed in protective custody by order of correctional staff at the time of his or her reception into the correctional facility, if correctional staff believe that the offender will be vulnerable to abuse by other inmates. Correctional staff may also place an offender into protection at any other time if, as a result of any incident(s), the offender is at risk of injury from other inmates.

Because offenders placed in protection under a direction of the governor do not make the request, and do not want to be in protection, the administrative processes governing these inmates, in particular ongoing monitoring, are as stringent as for those inmates under a segregation order. This is done to ensure that the decision can withstand external scrutiny.⁴⁶

The 1988 First Report of the Independent Commission Against Corruption investigation into the NSW Department of Corrective Services noted⁴⁷ that “[p]lacing an inmate on protection, particularly without the consent of the inmate, is a serious step for both the inmate and gaol administration.” Once an inmate is placed on strict protection, the inmate is generally assumed by other inmates to be either one of two things: an informer or a child sex offender, and is labelled a “dog,” “tamp” or “rockspider.” This is a label that the offender will carry for life, both inside and outside the correctional system. In either case, the inmate risks verbal and/or physical abuse, which in the most extreme cases can result in serious injury⁴⁸ or death. There is little likelihood that an inmate in these circumstances will ever be successfully reintegrated into the mainstream gaol population. On the other hand, it is possible in some cases for an inmate who has been held in ordinary protective custody to be placed back into the mainstream gaol population once the threat has passed.

For these reasons, not all offenders who are “eligible” to be placed in protective custody make such a request.⁴⁹ Some offenders elect not to be placed in protective custody believing that they will be strong enough, mentally and physically, to withstand the verbal and physical abuse, or that going into protective custody would only confirm that they were informers or child sex offenders. Other offenders live with the hope that the general gaol population will not find out the nature of their offending behaviour (child sex offences or child homicide) or informing.⁵⁰ However, this is almost impossible today, with the unrestricted access to the media, freedom of association in gaol, the circulation of the offending history of inmates through the criminal network both inside and outside the correctional system.

Inmates in protective custody

Although the offence categories for inmates held in protective custody are not readily available,⁵¹ a search⁵² of the NSW Court of Criminal Appeal judgments in the Judicial Commission’s Judicial Information Research System (JIRS), over the period from 1 April 1996 – 31 March 2000, provides some insight into them. In this five-year period, there were 211 cases in which the issue of protective custody was raised on appeal. Of these, 127 cases (59.6%) were concerned with three major offence categories: child sex offences, 57 cases (27.0%); drug offences, 39 cases (18.4%); and robbery offences, 30 cases (14.2%). The remaining 85 cases (40.2%) primarily involved sexual assault, assault, homicide, kidnapping, property offences and motor vehicle offences (see Figure 3).

Figure 3
The primary offence category of protection inmates in NSW based on CCA cases between 1996-2000

 

In addition to child sex offenders, child murderers and informers (discussed in more detail below) there are other sentenced and unsentenced offenders held in protection who are vulnerable to abuse while in custody. These offenders may represent any of the following sub-categories, which are not mutually exclusive –

• First time offenders.
• Homosexual and lesbian offenders.
• Transgender offenders.
• Aboriginal offenders.
• Female offenders.
• Young offenders.
• Older offenders.
• Mentally ill or developmentally delayed offenders.
• Physically disabled offenders.
• Chronically ill offenders.
• Suicidal offenders.

The offenders in each of these categories have special needs while in custody. While any one of these characteristics can make an offender vulnerable to abuse by other offenders, a combination of any of these characteristics greatly increases the risk of verbal and physical abuse that the offender is likely to encounter while in custody. This is particularly the case if the offender is not detained in a special correctional facility housing similar offenders.⁵³

Sex offenders

In recent years there has been a notable increase in the number of child sexual assault cases coming before the Local Courts and higher courts of NSW. The figures for the NSW courts for the five-year period from July 1993 – June 1998 are instructive. In the Local Courts, the number of charges for these types of offences rose from 354 to 456 charges, an increase of 28.8%. Similarly, in the higher courts for the same period, the number rose from 961 to 1,135 charges, an increase of 18.1% (see Figure 4). In the higher courts child sexual assault is the second most often charged offence in the category of offences against the person.⁵⁴

Figure 4
Finalised child sexual assault charges in NSW courts by jurisdiction, 1993-1994 to 1997-1998

 

Of all persons convicted of child sexual assault offences, 67.3 % of cases in the District and Supreme Courts, and 22.0% of cases in the Local Courts, received a sentence of imprisonment (see Figure 5).⁵⁵

Figure 5
Persons sent to gaol as a percentage of all persons convicted of child sexual assault offences in NSW, by jurisdiction, 1993-1994 to 1997-1998

 

The average sentence length imposed for these offences by the District and Supreme Courts was 32.7 months, and in the Local Courts an average of eight months (see Figure 6). As all child sex offenders are detained in strict protective custody, this may go some way to explaining the increase in the use of protective custody in New South Wales correctional facilities.⁵⁶

Figure 6
Average gaol sentence length in months for offenders convicted of child sex offences in NSW courts, by jurisdiction, 1993-1994 to 1997-1998

 

The justification for placing child sex offenders (and child killers) in strict protection is that they are reportedly the most hated group of offenders in the correctional system, and therefore in need of the highest level of protection. While there is ample literature⁵⁷ to support this statement, there is also some evidence⁵⁸ that suggests that it is the personality of the offender, and not the offence itself, that makes an inmate vulnerable to attack by other inmates, and that some child sex offenders have successfully served their sentences in the general gaol population.

In Astill (No2)⁵⁹ Kirby P said –

“[I]N THE CULTURE OF AUSTRALIAN GAOLS, IT SEEMS, EVEN SOME OF THE MOST HARDENED OFFENDERS FEEL ENTITLED TO VENT MORAL OUTRAGE AGAINST THOSE INMATES ALLEGEDLY INVOLVED IN CRIMES AGAINST CHILDREN.”

The perception that all older male offenders are child sex offenders can result in all older male inmates being subject to threatened and actual violence and verbal abuse, regardless of their offence. While many child sex offenders are older offenders, young offenders also commit crimes against children and are sentenced to imprisonment. However, because of the stereotyping of all older inmates as sex offenders, younger child sex offenders have a greater chance of hiding their offence from fellow inmates.

Informers

Another group of inmates who spend their sentence in strict protection are informers. These inmates have provided assistance to authorities either in relation to co-offenders (mostly in drug and robbery offences) or in connection with offences that have occurred in gaol. These inmates are at extreme risk of violence both from within the correctional system and without.

The Special Purpose Centre (SPC) at Long Bay has the capacity to house up to 65 protection inmates. The offenders who are placed in this unit are selected by an Interdepartmental Committee which includes senior police and correctional personnel who authenticate the information supplied by the offenders to ensure that protection is warranted. Many of these offenders are informers who never return to mainstream gaol population and are only ever referred to by a number. The Department of Corrective Services advises that there are, however, numerous examples of inmates who make the transition from the SPC to other centres, usually via Berrima.

In the recent case of AB (No 2),⁶⁰ O’Keefe J, commenting on the position of informers and child sex offenders in strict protection, explained the situation in the following terms –

“WHETHER THE PRISONER BE AN INFORMER, OR A SEXUAL OFFENDER AGAINST YOUNG CHILDREN, IS NOT TO THE POINT. THE END SITUATION IS THE SAME FOR EACH CATEGORY. EACH CATEGORY OF PRISONER REQUIRES SPECIAL CIRCUMSTANCES OF IMPRISONMENT. THE OFFENDERS HAVE TO BE ISOLATED, KEPT IN CIRCUMSTANCES OF VIRTUAL SOLITARY CONFINEMENT. IF THE OFFENDERS ARE NOT SO KEPT (AND PERHAPS EVEN IF THEY ARE) THEY WILL BE SUBJECTED TO THREATS AGAINST THEIR LIVES, WITH CONSEQUENT FEAR THAT SUCH THREATS WILL BE IMPLEMENTED. THAT FEAR WILL NOT OF NECESSITY BE REMOVED ENTIRELY BY SPECIAL CIRCUMSTANCES OF IMPRISONMENT.”

The hardship of protective custody

Thus the courts in Australia⁶¹ and overseas⁶² have long recognised that inmates who have to serve their sentence in protective custody, and particularly strict protection,⁶³ face more onerous conditions of imprisonment than do mainstream inmates. These conditions “can involve a degree of isolation, removal of freedoms and privileges available to other inmates, and other forms of hardship.”⁶⁴ The result is that every year spent in protective custody is equivalent to a significantly longer loss of liberty than under the ordinary conditions of imprisonment.⁶⁵ In Davies⁶⁶1 it was estimated that one year in protective custody was equivalent to between eighteen months and two years in ordinary custody.

Conditions in gaol are highly stressful and never pleasant. However, the increased level of stress which results from the constant threat of, or actual, violence, labelling and isolation, and the restrictive nature of protective custody can have an immense impact on the mental and physical health of offenders held in protective custody. The extremely stressful circumstances of protective custody have resulted in some protectees suffering deep depression and withdrawal, and in the most extreme cases have resulted in the protectees escaping from custody⁶⁷ or attempting suicide.⁶⁸

Some insight into the restrictive and extremely stressful conditions of protective custody is provided in the three rare instances when evidence of the circumstances of protective custody has been presented to the NSW Court of Criminal Appeal. For example, in Astill (No 2),⁶⁹ while stating that the conditions of protective custody were common knowledge among the judges of the appeal court, the court allowed by way of affidavit (accepting the apparent accuracy of the description), evidence of the conditions of strict protection in comparison with ordinary custody –

“5. WHEREAS INMATES IN THE MAIN GAOL ARE PERMITTED TO EXERCISE BETWEEN 8.30 AM OR 9 AM TO 12 NOON AND AGAIN FROM 1 PM TO 4 PM, AS A INMATE IN STRICT PROTECTION I AM ONLY PERMITTED TO EXERCISE BETWEEN 9 AM OR 9.30 AM AND 11.00 AM OR 11.30 AM AND AGAIN BETWEEN 1.15 PM AND 3 PM.
“6. WHEREAS INMATES IN THE MAIN GAOL HAVE A LARGE OUTDOOR AREA TO EXERCISE INMATES IN STRICT PROTECTION HAVE ONLY TWO SMALL AREAS IN WHICH TO EXERCISE NAMELY

“(A) A SMALL OUTDOOR YARD MEASURING APPROXIMATELY 16 FOOT BY 14 FOOT;
“(B) A ‘CORRIDOR’ AREA MEASURING APPROXIMATELY 20 PACES WHICH CAN ONLY BE UTILISED FOR A SHORT TIME IN THE MORNINGS WHILST INMATES ARE WAITING TO SHOWER.

“7. WHEREAS INMATES IN THE MAIN GAOL MAY SHOWER AT MOST TIMES DURING THE DAY, INMATES IN STRICT PROTECTION ARE PERMITTED ONLY TO SHOWER IN THE MORNING.
“8. WHEREAS INMATES IN THE MAIN GAOL HAVE REGULAR EDUCATION PROGRAMMES, INMATES IN NORMAL PROTECTION HAVE EDUCATION TWO OR THREE TIMES A WEEK AND INMATES IN STRICT PROTECTION HAVE EDUCATION ONLY ONCE EACH WEEK.
“9. WHEREAS INMATES IN STRICT PROTECTION HAVE THE SAME VISITING ENTITLEMENTS AS INMATES IN THE MAIN GAOL, THE EFFECTIVE VISITING TIME IS REDUCED GREATLY BY DELAYS RESULTING IN THE REQUIREMENT THAT A SPECIAL OFFICER ESCORT INMATES IN STRICT PROTECTION TO THE VISITING ROOMS. THE DELAYS MAY BE AS LONG AS TWO HOURS.
“10. AS A INMATE IN STRICT PROTECTION, THE OPPORTUNITY TO HAVE MY CLASSIFICATION REDUCED IS LIMITED, AS THERE ARE ONLY A NUMBER OF GAOLS WHICH PROVIDE STRICT PROTECTION.
“11. THERE IS LESS OPPORTUNITY TO PICK FRIENDS IN STRICT PROTECTION. MANY OF THE INMATES IN STRICT PROTECTION ARE SUICIDAL, UNUSUAL OR DIFFICULT TO GET ALONG WITH.
“12. SINCE BEING IN CUSTODY I WAS ASSAULTED ON ONE OCCASION AND SUFFERED A BLACK EYE. I DID NOT REPORT THIS INCIDENT, AS I DID NOT WISH TO PUT THE PERSON WHO ATTACKED ME IN. NOTHING WAS SAID AT THE TIME AS TO WHY I WAS ASSAULTED BUT I ASSUMED THAT IT WAS RELATED TO MY BEING CHARGED IN RESPECT TO THE MURDER OF A SMALL CHILD.
“13. BY COMPARISON TO THE OCCASION WHEN I WAS IN CUSTODY FOR A SHORT PERIOD IN THE MAIN SECTION OF THE GAOL, I HAVE FOUND THAT THE TIME IN STRICT PROTECTION SEEMS TO PASS VERY SLOWLY.”

Similarly, in Keal⁷⁰ there was evidence before the court that disclosed –

“…AN APPALLING SITUATION, SO MUCH SO THAT AS A RESULT OF THESE MATTERS, INCLUDING THE ASSAULT THE CIRCUMSTANCES OF WHICH WERE BEFORE HIS HONOUR, THE RESPONDENT MUST SERVE THE WHOLE OF HIS SENTENCE, IT WOULD SEEM, IN STRICT PROTECTION AND, NOTWITHSTANDING SERVING IT IN STRICT PROTECTION, WILL CONTINUE TO SERVE THE SENTENCE IN CIRCUMSTANCES OF ADDITIONAL DEPRIVATION AND WHERE HIS PUNISHMENT WILL BE MUCH MORE ONEROUS THAN IS NORMALLY THE CASE IN GAOL. INDEED, HE HAS FOUND IT NECESSARY, EXCEPT FOR ONE OCCASION, TO FOREGO VISITS BY MEMBERS OF HIS IMMEDIATE FAMILY. IT WOULD SEEM THAT THIS CONDUCT WILL CONTINUE. IT WOULD APPEAR FROM THIS AFFIDAVIT THAT HE IS SERVING AND WILL CONTINUE TO SERVE HIS SENTENCE IN CONSTANT FEAR AND APPREHENSION OF MATTERS WHICH ARE NOT THE USUAL FORM OF PUNISHMENT.”

As recently as late 1999, the court in France⁷¹ described the circumstances under which the appellant had been held in protective custody at various NSW correctional facilities –

“HE WAS HELD IN A ‘7 BY 5 CELL’ ALL DAY, BEING RELEASED ONCE DURING THE AFTERNOON FOR FIVE TO TEN MINUTES FOR THE PURPOSE OF OBTAINING MEALS. THERE WAS NO AREA FOR SOCIALISING WITH OTHERS. HE HAD BEEN ALSO HELD AT BATHURST GAOL FOR A RELATIVELY SHORT TIME, WITHOUT THE OPPORTUNITY OF UNDERTAKING ANY REHABILITATIVE COURSES, AND ALSO AT JUNEE. IN MORE RECENT TIMES HE HAD HAD THE OPPORTUNITY OF UNDERTAKING SUCH COURSES AND HE HAD DONE SO. WHILE HE WAS HELD IN COUNTRY GAOLS IT WAS NOT POSSIBLE FOR HIS FAMILY TO VISIT HIM. HE HAD SEEN THE GAOL PSYCHOLOGIST AS A RESULT OF DEPRESSION OF SUCH SEVERITY THAT ON THREE OCCASIONS HE HAD EXHIBITED SUICIDAL TENDENCIES AND HAD BEEN HELD IN WHAT HE HAD DESCRIBED AS ‘A DRY CELL’ UNDER OBSERVATION, ON ONE OCCASION FOR A PERIOD OF THREE WEEKS.”

The legislation states that an inmate held in segregation or protective custody should not suffer a reduction of diet or be deprived of any rights or privileges.⁷² The reality is that because of the nature of these forms of custody there will inevitably be some restrictions. The degree and type of restrictions will depend largely on the offender’s level of protective custody, legal status (unsentenced or sentenced), and the correctional institution where the offender is held. Offenders held in protective custody in mainstream maximum or medium security correctional facilities are in the minority. As a result of the physical structure of the gaols and the need for high levels of security to protect their safety, their custody necessarily involves restrictions on association and movement. In addition, because they are a minority in the gaol where they are being held, their access to facilities, services, and programs is limited, so as to accommodate the needs of the majority of mainstream inmates. In a recent case,⁷³ for example, the Court of Criminal Appeal observed that the placing of the offender, for reasons of personal safety, in strict custody led to the loss of all his teeth because of the difficulties in treating an infection from which he suffered.

Note that the cases referred to above are examples that have come before the courts. The Department of Corrective Services advises that the majority of sentenced protection inmates are not subjected to the harsh conditions described above.

The provision of “special” gaols in country areas for inmates needing protection could be seen as a disincentive for offenders requesting to be placed in protection. Because of the difficulties associated with long distance travel, offenders held in country gaols may be disadvantaged by having either no visits, or restricted visits, from friends and family.⁷⁴ However, Halloran⁷⁵ argues that “the more open gaol environment and inmate access to a greater range of programs and facilities” is a reason for the increase in the number of offenders seeking protection. He went on to note that, while protective custody had both positives and negatives, the inmates at Junee generally liked protection, as it fulfilled their need for safety and privacy, and the inmates believed they had made “a free and knowledgeable choice” in choosing to go on protection.

Assaults

Evidence before the courts in numerous cases and research projects show that inmates are at times assaulted while in protective custody. Further, it is not only violence from mainstream inmates that the offenders on protection fear, it is also violence at the hands of other protectees.⁷⁶

Additionally, in Keal,⁷⁷ the court stated that there was evidence before the sentencing judge which not only detailed an assault upon the inmate “but a history of ill-treatment and improper treatment in prison and not only from inmates.”

Halloran⁷⁸ reported that the 1997 NSW Department of Corrective Services’s statistics on assaults in custody did not reveal an increase over the preceding four years, and in some categories, such as sexual assault, there had been a slight decrease. However, he acknowledged that reported incidents might not account for the actual total number of assaults.

Sentencing and protective custody

From the information presented above it can be seen that, broadly speaking, inmates held in protective custody can be divided into two groups. The first group consists of those inmates who were placed in protection as a result of events or circumstances occurring prior to their arrival in gaol. This group of protectees, who are most often held in strict protection, are primarily child sex offenders, child killers and informers. The second group of protectees, who are also vulnerable to violence or abuse, have been placed in protective custody as a result of events or circumstances that have occurred subsequent to their arrival in gaol.

The courts, in recognition of the hardships associated with imprisonment in strict protection,⁷⁹ have dealt with the first group of offenders in two ways –

1. by reducing the otherwise appropriate sentence; and/or
2. by reducing the otherwise appropriate term of the minimum term or non-parole period.

The variation of the sentence for the hardship of imprisonment in strict protection is taken into account under the sentencing principles of’ “assistance to the authorities”⁸⁰ and “special circumstances.”⁸¹ These principles allow for a variation in a sentence through either a reduction in the term of the sentence or a departure from the three-quarter rule⁸² ratio of non-parole period to head sentence. However, although the custodial term may be reduced, the sentence must not be unreasonably disproportionate to the nature and circumstances of the offence,⁸³ as there is a need to balance hardship in gaol with other principles of sentencing.⁸⁴

The principle of “assistance to authorities,” which often leads to a substantial discount in sentence, covers both the restrictive nature of protective custody⁸⁵ as well as the risk of injury at the hands of other inmates.⁸⁶ 1There is no fixed amount for this discount and it need not be quantified separately,⁸⁷ although discounts for co-operation of between 20% and 50% of the sentence are not uncommon.⁸⁸ However, when the fact that the inmate has provided assistance to the authorities is not known to those affected, and the inmate has therefore not been placed in protective custody, a discount is still applicable, but it may not be as great.⁸⁹

On appeal against the severity of sentence in these types of cases it is often submitted by the appellant that the sentencing judge either omitted to consider the fact that the offender would have to serve his or her sentence in protective custody, or that when the sentencing judge did consider “the significantly more onerous situation of protective custody,” it was not given sufficient weight.⁹⁰ 1In Crown appeals against the inadequacy of sentence, it is argued that the sentencing judge gave too much weight to the issue of protective custody.⁹¹

Some sentencing judges allow evidence of the conditions of the hardship associated with protective custody – such as the restrictive nature, lack of services and programs, and risk of injury – to be admitted prior to sentencing.⁹² However, it has been also said that the sentencing judge should act on the realities of each case, and need not enter into a detailed examination, incident by incident, of what has happened to other inmates in the prison system.⁹³ It has been held that, because the conditions of protective custody are well known to the judiciary, it is unnecessary to admit any supporting evidence.⁹⁴

On more than one occasion the courts have stated that the issue of the safety of inmates is a matter for prison authorities, and not for he courts.⁹⁵ However, not all members of the judiciary share this view. In one case,⁹⁶considered to be exceptional, concerns expressed by the sentencing judge about the ability of correctional authorities to protect an offender who had provided assistance to the authorities resulted in the imposition of a non-custodial sentence. This offender would otherwise have faced a long term of imprisonment for multiple counts of armed robbery and kidnapping.

The second group of inmates held in protective custody is comprised of those offenders who are placed in protection because of events occurring after sentencing that put them at risk of violence. Ordinarily, events subsequent to the imposition of a sentence will be irrelevant to the appropriateness of the sentence actually passed. Therefore, this group of inmates is unable to take advantage of any reduction in sentences available through “special circumstances” or “assistance to the authorities” for the hardship of protective custody.

In Hoswell⁹⁷ Grove J stated –

“THE APPLICANT HAS POINTED OUT THAT, SINCE BEING COMMITTED TO CUSTODY, HE HAS BEEN THE VICTIM OF ASSAULT AND THAT AS A RESULT HE IS BEING KEPT ON PROTECTION. NO DOUBT THE CIRCUMSTANCES OF HIS INCARCERATION ARE THEREBY RENDERED THE MORE ONEROUS. THE SITUATION IS SIMPLY THAT THIS AND OTHER EVENTS TO WHICH HE REFERS WHICH ARE SUBSEQUENT TO HIS SENTENCING DO NOT IN THEMSELVES EITHER INDIVIDUALLY OR IN COMBINATION PROVOKE INTERVENTION BY THIS COURT.”

In a limited number of occasions, where it has been determined on appeal that a sentencing error has occurred, evidence of the conditions of strict protective custody has been admitted so as to justify a reduction in sentence.⁹⁸

In comments provided by the Deparment of Corrective Services, it was pointed out that the negative aspects of being managed as a strict non-associating protection inmate must be weighed against the increased sense of safety experienced by inmates in this category, who are rarely assaulted.

Conclusion

The prevailing view of imprisonment is that offenders are sent to gaol as punishment, not for punishment.⁹⁹ In other words, the loss of liberty should be the only punishment that gaol provides. Correctional authorities, echoing the principles of punishment and sentencing, express their primary goal in their mission statement as being the protection of the community by the secure containment and management of offenders in a safe and humane environment. They acknowledge that the majority of inmates will at some time return to the community and express, as a secondary goal, the provision of programs and work aimed at rehabilitating inmates, so that inmates may become law-abiding citizens and the level of crime in society ultimately decreases.

However, from the information presented above, it can be seen that the issues surrounding imprisonment for inmates detained in protective custody are far more complex than for those inmates detained in normal custody. The primary reason offenders seek protective custody is a fear of violence at the hands of other inmates. The fear can be real or imagined, and may have its foundation in the circumstances of the inmate’s offending behaviour or incidents which may have occurred while the inmate was in custody, or be related to any one or more of the subjective features of the inmate. These factors will be important in determining at which level of protective custody the inmate will be held. The higher the level of protection, the more restrictions there are on freedom of movement and association within a correctional facility. Further, because the conditions faced by inmates in protective custody depend on a complex interaction of factors – including their legal status, security classification, offence, and length of remand or sentence, the availability of beds for protection inmates, and the type and location of the prison where they are being held – there is no simple solution to the issues raised by protective custody.

Endnotes

1	R v Laws [2000] NSWSC 885 at [43]-[44].
2	R v Bellamy (unrep, 11/10/00 NSW DC).
3	See L A Barnes, Doing Time Quietly: A Profile of Older Offenders and their Experiences of Imprisonment in South Australia, 1999, unpublished Master of Laws thesis, Faculty of Law, University of Sydney; G M McGrath, “Prison Society and Offence Stigma: Some Doubts” (1982) 15 Aust & NZ Journal of Criminology, 235-244; F Hayes, The Social Structure of a Prison Community, 1974, unpublished Master of Arts thesis, Department of Sociology, University of New South Wales.
4	Interviews conducted by the author with inmates in protective custody in South Australian and Victorian gaols.
5	These figures are based on data from the NSW Department of Corrective Services’s Weekly States, 7 April 1996 and 2 April 2000. The full time custody figures include sentenced inmates, appellants, remandees, deportees, but does not include periodic detainees. The Weekly States does not list the inmates detained at Berrima Special Purpose Centre and Kirkonnell as being on protection.
6	Note that the increase in the number of inmates on protection should be viewed with caution because no distinction is made between inmates in protective custody and inmates with “protection orders.”
7	See Table 2.
8	Berrima and the Special Purpose Unit were not included in this count as the Department’s Weekly States do not list the inmates in these facilities as being in protection. Similarly, Kirkconnell was also not included, as these inmates sign off protection before moving to Kirkconnell. However, if they are transferred to another gaol they then have to be held in protection.
9	See Howard v Jarvis (1958) 98 CLR 166, where the court held that the gaoler who deprives a inmate of his liberty and assumes control of his person falls under a duty of care for his safety.
10	See Hall v Whatmore [1961] VR 225; Dixon v State of Western Australia [1974] WAR 65; L v Commonwealth (1976) 10 ALR 269.
11	See, for example, R v Watson [1999] NSWCCA 227, revised 23/8/99; R v Attie (No 2) (unrep, 17/3/00, NSW CCA).
12	See the NSW Department of Corrective Services’s Weekly States. For example, on 2 April 2000 there were 105 inmates (five female) held in segregated custody, compared to 1,289 inmates (22 females) held in protective custody.
13	Formerly, ss 22AA – 22F of the Correctional Centres Act 1952. Unless otherwise indicated, all references to Acts of Parliament are to those of New South Wales.
14	These guidelines, which were agreed upon by all corrective service ministers at the Corrective Services Ministers Conference, in March 1995, are based on the Standard Minimum Rules for the Treatment of Inmates and the Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment.
15	Collins v State of South Australia [1999] SASC 257.
16	Crimes (Administration of Sentences) Act 1999, s 12 (1)(a) and (b).
17	These figures were provided by the Inmate and Classification Unit of the NSW Department of Corrective Services. Note, however, these statistics are affected by the changing status of persons on protection.
18	Crimes (Administration of Sentences) Act 1999.
19	s 17 (2).
20	s 13 (1).
21	s 13 (2).
22	s 14 (2).
23	s 17 (1).
24	s 15.
25	s 14(3).
26	s 16(1).
27	s 16(2).
28	s 18.
29	s 19.
30	s 20.
31	s 20(1)(b).
32	See R v France [1999] NSW CCA 428.
33	s 14.1.
34	See, for example, R v Meskers (unrep, 13/6/91, NSW CCA).
35	See, for example, R v Mackey [1999] NSWCCA 167; R v Ashfield (unrep, 27/2/98, NSW CCA).
36	See, for example, R v PPB [2000] NSW CCA 360.
37	See, for example, R v Slatinec [2000] NSWCCA 2; R v Hopper (unrep, 19/9/98, NSW CCA); R v ARC (unrep, 28/8/96, NSW CCA).
38	See, for example, R v Warner (unrep, 2/12/98, NSW CCA).
39	See, for example, R v Thomas [1999] NSW CCA 68, per Studdert J at [15]); R v Debnam (unrep, 2/3/98, NSW CCA).
40	See, for example, R v Murdock (unrep, 24/4/95, NSW CCA).
41	See, for example, R v Harborne (unrep, 12/10/94, NSW CCA) whose father was a police officer;
42	See, for example, R v Thomas [2000] NSW CCA 34); R v Nomchong (unrep,10/4/97, NSW CCA), R v Jones and Kelly (1985) 20 A Crim R 142, per Street CJ at 153; Cosgrove v Hunter (1988) 34 A Crim R 299 at 307.
43	See, for example, R v Ernst [1999] NSWCCA 84.
44	T Halloran, Male Protection Inmates, (1997), departmental paper, NSW Department of Corrective Services, Sydney.
45	See, for example, R v Prior (unrep, 7/10/97, NSW CCA); R v Sokvari (unrep, 22/5/96, NSW CCA).
46	NSW Department of Corrective Services Procedure Manual at 14.3.
47	Independent Commission Against Corruption: Investigation into the Department of Corrective Services Third Report: Betrayal of Trust: the Activities of Two Correctional Officers (1999) ICAC, Sydney, p 11.
48	See, for example, R v Blanche (unrep, 28/9/94, NSW CCA); R v C (unrep, 18/11/94, NSW CCA 18); R v Watson [1999] NSWCCA 227); R v Clarke (unrep, 17/4/98, NSW CCA); R v Talbot (unrep, 19/12/97, NSW CCA); R v Hardy (unrep, 5/6/97, NSW CCA); R v Douglas (unrep, 4/3/97, NSW CCA); R v Carter (unrep, 29/10/97, NSW CCA); R v DM (unrep, 27/5/96, NSW CCA); R v WHS (unrep, 11/4/95, NSW CCA).
49	See, for example, R v Kemp [1999] NSWCCA 404; R v Brehoi (unrep, 16/12/96, NSW CCA).
50	See, for example, R v Brehoi (unrep,16/12/96, NSW CCA); R v Rogers (unrep, 21/6/96, NSW CCA).
51	This information is not published by the NSW Department of Corrective Services.
52	The search query for all New South Wales Court of Criminal Appeal matters was “segregation OR protect* // custody OR strict AND (1/4/1996 to 31/3/2000).”
53	See, for example, R v Keal (unrep, 7/11/97, NSW CCA); R v Dennis (unrep, 1/12/92, NSW CCA).
54	M Chilvers Trends in Crime and Justice New South Wales 1997, 1998, New South Wales Bureau of Crime Statistics and Research, Sydney, at pp 30 and 60.
55	See note 53 at 38 and 62.
56	See note 53 at 40 and 64.
57	See, for example, D Clemmer, The Prison Community, 1965, Holt Rinehart and Winston, New York; T Morris and P Morris, Pentonville, 1963, Routledge and Kegan Paul, London; F Emery, Freedom and Justice Within Walls, 1970, Tavistock Publications, London; A Marcus, Nothing in My Number, 1971, General Publishing Company, Toronto.
58	See G M McGrath, “Prison Society and Offence Stigma: Some Doubts” (1982) 15 Aust & NZ Journal of Criminology 235-244.
59	See R v Astill (No 2) 64 A Crim R 289 per Kirby P. See also AB (No 2) [2000] NSWCCA 467, per Barr J at [98].
60	AB (No 2) [2000] NSWCCA 467, per O’Keefe J at [56].
61	AB v The Queen (1999) 165 ALR 298; [1999] HCA 46 per Kirby J at [105] ref to R v Inge (1999) 73 ALJR 1,563 at 58. Consideration must also be given to circumstances which may increase the impact of the sentence imposed upon the inmate. Thus it is relevant to consider the age of the offender, whether the offender may have to be kept in protection [AB v The Queen [1999] HCA 46 at [105]] and whether the offender suffers from an illness or other condition which may render the punishment especially severe in his or her case [R v Smith (1987) 44 SASR 587 at 589; R v McDonald (1988) 38 A Crim R 470].
62	R v Davies and Gorman (1978) 68 Cr App R 319 at 322; R v Lowe (1977) 66 Cr App R 122.
63	R v Hardy (unrep, 5/6/97, NSW CCA).
64	R v Rogers (unrep, 21/6/96, NSW CCA).
65	AB v The Queen [1999] 165 ALR 298.
66	Op cit note 61.
67	R v Mackenroth (unrep, 19/5/98, NSW CCA).
68	Op cit note 2, Barnes at 204.
69	Op cit note 51.
70	R v Keal (unrep, 7/11/97, NSW CCA).
71	R v France [1999] NSW CCA 428, per Simpson J at [10].
72	Op cit note 15, s 12 (2)(a) and (b).
73	R v McMillan [2000] NSW CCA 241 at [15].
74	For example, see R v Ernst [1999] NSW CCA 84.
75	Op cit note 43.
76	See, for example, R v Meskers (unrep, 13/6/1991, NSW CCA).
77	R v Keal (unrep, 7/11/97, NSW CCA).
78	Op cit note 43.
79	See, for example, AB (No 2) [2000] NSWCCA 467 per O’Keefe J at [56] and Barr J at [98], where the rationale for providing a discount in sentencing is explained.
80	s 23(1) of the Crimes (Sentencing Procedure) Act 1999, formerly s 442B(1) of the Crimes Act 1900 NSW.
81	See R v Astill (No 2) (1992) 64 A Crim R 289; R v Lewis 100 A Crim R 361 per Dunford J at 365. Enshrined within s 5 (2) of the Sentencing Act 1989, now s 44(2) of the Crimes (Sentencing Procedure) Act 1999. See also I Potas and P Poletti, Sentencing Drug Offenders: Analysis of Sentences Imposed in the Higher Courts of New South Wales: 1 January 1992 to 31 December 1997 (1999) Judicial Commission of New South Wales, Sydney, p 37.
82	s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
83	s 442B(3) of the Crimes Act 1900 NSW; see R v Huang (1995) 78 Crim R 111.
84	R v Russell (unrep, 15/12/95, NSW CCA).
85	s 23(2)(g), Crimes (Sentencing Procedure) Act 1900.
86	s 23(2)(h), Crimes (Sentencing Procedure) Act 1900.
87	For a general discussion of cases prior to the introduction of s 442B(1) of the Crimes Act 1900 (NSW) in 1992 (now s 23(1) of the Crimes (Sentencing Procedure) Act 1999), see R v Gallagher (1991) 23 NSWLR 220, whereR v Cartwright (1989) 17 NSWLR 243 is considered. See also R v De Silva (unrep, 14/12/93, NSW CCA, per Gleeson CJ) where R v Gallagher (1991) 23 NSWLR 220 is discussed.
88	See, for example, I Potas and P Poletti (1999) at p 13, op cit note 79.
89	See R v Kemp [1999] NSWCCA 404, per James J at [18].
90	R v Slatinec [1999] NSWCCA 2; R v Presta [2000] NSWCCA 40.
91	R v Nomchong (unrep, 10/4/97, NSW CCA).
92	R v France [1999] NSWCCA 428 at Kirby J [25]; R v Dennis (unrep, 14/12/92, NSW CCA); R v Burchell (1987) A Crim R 148 at 151; R v Cartwright (1989) 17 NSWLR 243 at 251 and 255; R v Perez-Vargas (1986) 8 NSWLR 559 at 564-565.
93	R v C (1994) 75 A Crim R 309, per Mahoney JA.
94	See R v BGS [1999] NSWCCA 89.
95	See R v Nomchong (unrep, 10/4/97, NSW CCA); R v Dennis (unrep, 14/12/92, NSW CCA).
96	R v C (1994) 75 A Crim R 309, per Mahoney JA. A Crown appeal in this matter was dismissed.
97	R v Hoswell [2000] NSWCCA 250, per Grove J at [8].
98	R v Astill 64 A Crim R 289, per Kirby P at 296, citing R v Ehrenburg (unrep, 14/12/ 1990), a case when the court reduced the sentence of the gaoler who was found to be suffering from HIV/AID. In this case the sentence was not necessarily shown to be incorrect at the time passed and within the knowledge then available to the judge. Also see R v Cooper (unrep, 9/11/ 1988, NSW CCA), a case in which the gaoler, serving a sentence in strict protection for the murder of a baby girl, later had his conviction set aside.
99	See Rule 57, United Nations Standard Minimum Rules for the Treatment of Inmates. Recently referred to by Barr J in R v Attie [2000] NSWCCA 70 at [6].

Acknowledgement

The Judicial Commission is grateful for the assistance provided by the Department of Corrective Services in preparing this paper.

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This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.