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Recommendation 180
This recommendation is assigned to CSNSW.
Recommendation
That where a prisoner is charged with an offence which will be dealt with by a Visiting Justice, that Justice should be a Magistrate. A charge involving the possibility of affecting the period of imprisonment should always be dealt with in this way. All charges of offences against the general law should be heard in public courts.
Context
The Royal Commission considered that a charge of an offence at law should be heard in the ordinary courts, recommendation 180 is directed at visiting justices are appropriately qualified and that criminal charges are appropriately heard in court.
Status: Implemented
Governors (or their delegated officers) can charge inmates and hear correctional centre offences, but their penalties are limited to those under the Crimes (Administration of Sentences) Act 1999 and Regulation. They cannot impose judicial sentences like increasing imprisonment periods, which only a court can do.
Although the Crimes (Administration of Sentences) Act 1999 and Crimes (Administration of Sentences) Regulation 2014 allow for Visiting Justices to hear charges at correctional centres, the current practice is to refer matters to the Local Court, facilitated by Audio Visual Links (AVL) for efficient inmate access to court and legal counsel.
Custodial operations Policy and Procedures (COPP) section 14.2 outlines that visiting magistrates can hear correctional centre offences and impose penalties under the CAS Act and Regulation, with heavier penalties than those imposed by Governors.
Detail of implementation
Governors (or their delegated officers) are authorised to charge inmates and hear correctional centre offences only. The penalties that Governors (or their delegated officers) may impose are limited to those available under the Crimes (Administration of Sentences) Act 1999 and Regulation. This does not include imposing a judicial sentence such as increasing the period of imprisonment. This can only be done by a Court.
While the provisions for a Visiting Justice to attend a correctional centre and hear charges are still available in the Crimes (Administration of Sentences) Act 1999 and Regulation, the current practice is that matters are referred to the Local Court and heard by a magistrate. This practice was made easier as a result of the introduction of Audio-Visual Links (AVL) which provide for efficiencies in inmate access to court and legal counsel.
COPP section 14.2 Visiting magistrate hearings
Visiting magistrate hearings allows for the referral of correctional centre offences to visiting magistrates, and like Governors, visiting magistrates are also limited to the penalties available under the CAS Act and Regulation, albeit the penalties a Visiting Magistrates may impose are heavier.
If the inmate has committed an offence of a serious nature which might also be a criminal offence, the Governor or delegated officer must refer this to Police. This is reflected in subsection 3.1 Correctional centre offences which might also be criminal offences in COPP 14.1 Inmate discipline.
Evidence
- COPP section 14.2 Visiting magistrate hearings (PDF, 205.1 KB)
- COPP 14.1 Inmate discipline (PDF, 6.4 MB)
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