Prison offences

Contributed by AndrewRobson and current to 27 July 2018

Breaches of discipline by people in prison are covered by the Prisons Act 1981. Sections 69 and 70 of the Prisons Act 1981 sets out what can be classed as a breach of discipline and what the punishment for the breach can be. The Act distinguishes between minor and aggravated offences.

Charges

A charge of a prison offence may be made by any prison officer authorised to exercise a power set out in clause 14 of Schedule 2 to the Court Security and Custodial Services Act 1999. The charge is brought to the attention of the Superintendent who, as he or she thinks appropriate and having regard to the nature of the alleged prison offence and to the alleged circumstances, may:

• if the prisoner so agrees, suspend further action with respect to the charge on condition of the good behaviour of the prisoner for a stated period not exceeding two months and order the withdrawal of the charge at the end of that period if the condition has been observed; or
• direct that the charge be withdrawn or that a further or different charge be laid; or
• refer the charge to a Visiting Justice; or
• if the prisoner so requests and the Superintendent agrees to the request, inquire into and determine a charge as a minor prison offence.

Minor prison offences

Examples of minor prison offences are set out in s69 Prisons Act and include:

• disobeying an order;
• being idle, negligent or careless in work;
• behaving in a disorderly manner;
• swearing or using indecent language; and
• a variety of other offences under the Act.

Where a prisoner is charged with any of these offences either the Superintendent or a Visiting Justice hears the matter. A Visiting Justice is a Justice of the Peace who is appointed by the Governor. If the prisoner requests and the Superintendent agrees, the Superintendent will hear the charge, otherwise, it is referred to the Visiting Justice.

The standard of proof for a minor prison offence is on the balance of probabilities (whether it was more likely than not). This is a lesser standard than the criminal standard of beyond reasonable doubt.

The prisoner is unable to have legal representation. Because none of the people involved are legally trained, the rules of evidence do not apply to the hearing of the charge but the Prisons Regulations (reg 66, 67) provide strict procedures which must be followed to ensure that the hearing is fair and that the prisoner knows the case against him or her and is given a reasonable opportunity to respond.

This includes the right to call any witnesses and to examine and re-examine them.

Penalties

If the charge against the prisoner is proved the Visiting Justice can impose more severe penalties than a Superintendent. However, a Superintendent can suspend any penalty imposed by him or her whereas the Visiting Justice cannot.

The Superintendent can impose:

• a caution;
• a reprimand;
• forfeiture of remission or reduction of up to 3 days;
• cancellation of gratuities not exceeding 14 days; or
• confinement in the prisoner’s sleeping quarters for not more than 72 hours.

The Visiting Justice can impose the penalties set out above and in addition order:

• separate confinement in a punishment cell not exceeding 7 days;
• confinement in the prisoner’s sleeping quarters not exceeding 7 days;
• separate confinement in a punishment cell for specified hours during a weekend or two weekends;
• forfeiture of not more than 28 days’ remission or reduction; or
• confiscation or disposal of property associated with the offence.

The Superintendent or the Visiting Justice may impose one or more penalty for each offence proved. The Visiting Justice cannot make confinement in a punishment cell exceed 21 days or combine confinement in sleeping quarters with confinement in a punishment cell. If the time in a punishment cell has been made cumulative, a prisoner must spend 48 hours out of the punishment cell after each period of 7 days.

Judicial review

There is no appeal from a finding of a minor prison offence, but if the hearing has not been conducted fairly and the rules of natural justice have been breached then either the prosecution or the prisoner can apply for judicial review in the Supreme Court to ask for the finding to be quashed. See, for example, Re Wiffen ex parte Sinclair [2000] WASC 286.

Aggravated prison offences

Aggravated prison offences are set out in s70 of the Prisons Act and include when a prisoner:

• behaves in a riotous manner;
• assaults a person;
• escapes or prepares to escape from anywhere the prisoner should be, including from prison;
• uses or is in possession of drugs or alcohol not lawfully issued;
• is in possession of a weapon; or
• does not submit to a body sample when required.

These matters are referred to a magistrate or two justices to hear unless the Visiting Justice decides to hear the matter. The present departmental policy is to allow only magistrates to hear aggravated offences.

The rules of evidence apply and the standard of proof is beyond reasonable doubt. The prisoner can have legal representation and if the prisoner is found guilty then a conviction is recorded against the prisoner.

Penalties

The magistrate can impose the following penalties if the prisoner is found guilty of an aggravated prison offence:

• cumulative imprisonment not exceeding six months (no remission applies to the term of imprisonment) and, if the offence is one of escape, then cumulative imprisonment of up to twelve months; and /or
• a fine of $300; and/or
• separate confinement in a punishment cell not exceeding 28 days.

The magistrate cannot suspend penalties.

Appeals

The usual appeal provisions apply to aggravated offences heard by a magistrate.

Separate confinement

As noted above, a prisoner can be ordered to be confined in his or her own cell as a punishment for committing a prison offence. Prisoners may be placed in separate confinement:

• to maintain good government, good order or security in a prison (s.43 Prisons Act); or
• as a penalty imposed following a disciplinary hearing or conviction (s.82 Prisons Act).

Prisoners can be placed in separate confinement in either:

• the prisoner’s sleeping quarters; or
• a punishment cell.