Correctional centres and visiting magistrates
- Note:
-
All references to sections of legislation in this chapter are, unless otherwise stated, references to sections of the Crimes (Administration of Sentences) Act 1999.
[68-000] Introduction
The Crimes (Administration of Sentences) Act 1999 makes provision for, amongst other things, correctional centre offences committed by inmates to be dealt with by a magistrate, in their capacity as a visiting magistrate, in a correctional centre or complex.
[68-020] Visiting magistrates — s 227
Section 227(1) provides, by virtue of their office, a magistrate has all the functions of a visiting magistrate and, in exercising those functions, is to be referred to as a visiting magistrate. A visiting magistrate may visit a correctional centre or complex at any time: s 227(2).
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.
Visits and examinations of correctional centres — s 229
Any magistrate may visit and examine any correctional correctional centre or complex at any time: s 229. A visiting magistrate is not required to examine the correctional centre; cf s 230 discussed below.
Inquiries — s 230
Section 230(1), (2) provides the Minister may direct an inquiry be conducted into any matter relating to the security, good order, control or management of a correctional centre or complex, and appoint a visiting magistrate for that purpose. The visiting magistrate appointed to conduct such an inquiry has certain powers under the Royal Commissions Act 1923: s 230(3). Such an inquiry is separate from the general visiting magistrate hearings mentioned below.
Correctional centre offences — s 51A
A correctional centre offence is an act or omission by an inmate (whether or not it is also a criminal offence) that is prescribed by the regulations as an offence, and occurs while the inmate is within a correctional centre or complex, or taken to be in the custody of the governor of a correctional centre: s 51A; see cl 127 Crimes (Administration of Sentences) Regulation 2014.
[68-040] Jurisdiction of visiting magistrate — s 54
The governor may refer a correctional centre offence to a visiting magistrate for hearing and determination because of its serious nature: s 54(1); see further at [68-060] Procedure at hearings before a visiting magistrate — s 55 below.
Transfer of proceedings to another correctional centre — s 55(6)
A visiting magistrate may transfer proceedings to a 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, during proceedings on a charge for a correctional centre offence, the visiting magistrate is of the opinion the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, they must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law: s 58.
[68-060] Procedure at hearings before a visiting magistrate — s 55
Section 55 sets out the procedure for hearings of charges by visiting magistrates. Subject to s 55, the Criminal Procedure Act 1986 applies in the same way as it applies to proceedings on a court attendance notice issued for a summary offence before the Local Court, subject to any modifications prescribed by regulations or as the visiting magistrate considers appropriate: s 55(2)(a), (3). There is nothing in the regulations to modify procedure.
The hearing of a correctional centre offence 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 but in a different location. Section 55(5) provides hearings are to be held in the correctional centre at which the inmate is in custody, or any other place appointed by the visiting magistrate if it is in the interests of the administration of justice. 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 s 39 Criminal Procedure Act.
Where the hearing is not held at the correctional centre at which the inmate is in custody, the Act makes provision for the appearance of inmates and/or witnesses by way of audio visual link where those facilities are reasonably available and there is no unfairness to a party: s 55(5A)–(5B).
Sections 5D, 20A, 20B and 20D–20F of the Evidence (Audio and Audio Visual Link) Act 1998 apply with such modifications as the visiting magistrate sees fit: s 55(5G).
The inmate is entitled to be represented by an Australian legal practitioner: s 55(4). This is usually attended to by a solicitor from Legal Aid NSW.
A correctional centre officer invariably is assigned to assist by calling witnesses and swearing in those witnesses.
Adjournments
Adjournments are dealt with in the same manner as in the Local Court. Defended matters are listed in the relevant diary in the correctional centre or complex.
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.
Antecedents
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 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.
[68-080] Penalties — s 56 and cl 163
Section 56(1) provides, after finding an inmate guilty of a correctional centre offence, the visiting magistrate may impose only one of the following penalties:
- (a)
reprimand and caution,
- (b)
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:
- (a)
attendance at the showing of films or videos or at concerts or other performances,
- (b)
participation in or attendance at any other organised leisure time activity,
- (c)
use of, or access to, films, video tapes, records, cassettes, CDs or DVDs,
- (d)
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,
- (e)
use of, or access to, a musical instrument, whether for personal use or for use as a member of a group
- (f)
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,
- (g)
ability to purchase goods (including under cl 177),
- (h)
keeping of approved personal property (including goods purchased or hired under cl 177),
- (i)
pursuit of a hobby,
- (j)
use of telephone, except for calls to legal practitioners and exempt bodies,
- (k)
participation in contact visits,
- (l)
permission to be absent from a correctional centre under a local leave permit or interstate leave permit.]
- (c)
confinement to a cell for up to 28 days, with or without deprivation of withdrawable privileges,
- (d)
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,
- (e)
extension, by up to at 6 months at a time, of—
- (i)
the term of the inmate’s sentence, and
- (ii)
in the case of an offence occurring during a non-parole period of the inmate’s sentence, the non-parole period of the sentence,
- (f)
imposition of a sentence of imprisonment for a period not exceeding 6 months.
Pursuant to s 56A(1), 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 than the 90 days otherwise provided by s 56. Section 57 makes the same penalty available for correctional centre offences arising out of a positive drug test or failure to provide a sample.
If the visiting magistrate is satisfied of the charge beyond reasonable doubt, but is of the opinion that a penalty should not be imposed, they may dismiss the charge: s 56(2).
Penalties (b), (c) and (d) 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.
[68-090] Compensation for property damage — s 59
A visiting magistrate may order an inmate who has caused any loss of or damage to property as a result of committing a correctional centre offence to pay compensation to the Crown or, to another person if the property belongs to them: s 59(1). The compensation is paid out of any money held by the governor on behalf of the inmate or out of any other money otherwise payable to the inmate under the Act or regulations: s 59(3). Compensation cases are nearly always referred to the magistrate as the governor is limited to $500 compensation: s 59(2). There is no monetary limit under the Act for magistrates.
[68-100] Cumulative punishments — s 60
Section 60 provides that if:
- (a)
-
an inmate is charged with two or more correctional centre offences, and
- (b)
-
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.
[68-110] Recording of punishment — s 61
If a penalty is imposed on an inmate for a correctional centre offence, the governor must have the following particulars recorded:
- (a)
the nature and date of the offence,
- (b)
the name of the inmate,
- (c)
the date of sentence,
- (d)
the penalty imposed, and
- (e)
any order under s 59 for the payment of compensation.
[68-120] Appeals against decisions of visiting magistrates — s 62
An inmate may appeal a penalty imposed by a visiting magistrate under s 56(1)(e) or (f) to the District Court under Pt 3 Crimes (Appeal and Review) Act 2001, as if the penalty was a sentence from a court attendance notice dealt with under Ch 4 Pt 2 Criminal Procedure Act 1986: s 62(1); see also cl 180 Crimes (Administration of Sentences) Regulation 2014.
[68-140] Double jeopardy — s 63
Section 63 provides:
- (1)
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.
- (2)
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.