JUDGE:	EAMES J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2001
DATE OF JUDGMENT:	7 November 2001
CASE MAY BE CITED AS:	Kaufman v Smith & Armytage
MEDIUM NEUTRAL CITATION:	[2001] VSC 420

---

Prisons – Corrections Act 1986, ss. 20(1)(2), 21(1), 38, 53(4) - sanctions imposed on prisoner under Victorian Prison Drug Strategy - prisoner previously found guilty and punished in Governor’s hearing, pursuant to s. 53(4), for prison drug offences – sanctions imposed under conditions of Strategy include denial of contact visits as part of drug strategy – whether sanctions constitute unauthorised additional punishment for prison offence – whether punishment for prison offences confined to hearings under Part 7 – statutory interpretation – conditions imposed on contact visits pursuant to s. 38 and Corrections Regulations 1988, reg 57 – “privileges”.

---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr A Neal

Phillips Fox

For the First Defendant

For the Second Defendant

Mr R Shepherd

Mr G McEwen

CORE

Victorian
Government Solicitor

HIS HONOUR:

In this action the plaintiff, a prisoner serving a lengthy sentence, seeks declarations and injunctive relief against the firstnamed defendant, who is the operations manager at Bendigo Prison which is conducted by the Public Correctional Enterprise (hereafter referred to as “CORE”), and against the secondnamed defendant, who is the Correctional Services Commissioner appointed pursuant to the Corrections Act 1986 (“the Act”). When these proceedings were commenced the plaintiff was then imprisoned at Bendigo Prison but has since been moved and is now at Port Phillip Prison.

The plaintiff seeks a declaration that Provisions 2 and 4 of the Victorian Prison Drug Strategy 1992 (“the Strategy”) insofar as they permit the imposition of sanctions upon the plaintiff are unlawful and unenforceable, and also seeks a declaration that any sanction imposed pursuant to those sections is unlawful and unenforceable. The proceeding raises important questions relating to the relationship, and potential for conflict, between strategies for dealing with a serious drug problem in prisons (which strategies include measures described as “sanctions”, which, to prisoners, may be akin to imposition of additional punishment for prison drug offences) and the statutory regime which provides for punishment for prison offences.

In November 1991 the Office of Corrections (which later became the Office of Correctional Services Commissioner) formulated the Victorian Prison Drug Strategy, which followed upon an independent review undertaken at the request of the then Director General of Corrections as to the high levels of illicit drug use in prisons. The review concluded that there was the need for a strategy to address the substantial drug problems in prisons and, in particular, the trafficking of drugs within the prison system. An affidavit filed in these proceedings by Phillippa Helen Wisdom, a Correctional Services Administrator, sets out in detail the severity of the drugs problem within the prison system and, in particular,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaufman v Smith

Details

AGLC: Kaufman v Smith [2001] VSC 420
Case: [2001] VSC 420
Decision Date: 7 November 2001

CaseChat Overview and Summary

In the matter of Kaufman v Smith, the dispute before the court involved the legality of sanctions imposed on a prisoner under the Victorian Prison Drug Strategy. The case was heard in the Supreme Court of Victoria, where the appellant, Kaufman, challenged the constitutionality of certain penalties, including the denial of contact visits, as a result of his drug-related activities within the prison system.

The central legal issues revolved around the interpretation of the relevant sections of the Corrections Act 1986 and the Corrections Regulations 1988, particularly concerning the authority of the Governor to impose sanctions under the Drug Strategy. The appellant contended that the denial of contact visits amounted to an additional and unauthorised punishment for prison offences, which should be confined to the procedures outlined in Part 7 of the Act. The court needed to determine whether the conditions imposed on contact visits were indeed "privileges" and whether these constituted an additional punishment outside the scope of the statutory framework.

The court found that the denial of contact visits, as part of the sanctions under the Drug Strategy, did not constitute an additional punishment for prison offences. It was held that the conditions imposed on contact visits were permissible under the statutory provisions and did not fall outside the confines of the Act. The court emphasised that the Governor's authority to impose sanctions was within the bounds of the Act, particularly when considering the legislative intent behind the Drug Strategy. The conditions imposed were deemed to be "privileges" and were therefore within the regulatory framework provided by the Act and the Regulations.

The court dismissed the appeal, upholding the sanctions imposed on the appellant. The denial of contact visits as a consequence of the drug-related activities was confirmed to be a valid measure under the Drug Strategy. No further orders were made beyond the dismissal of the appeal.

Orders