Rainsford v Director of Port Phillip Prison
[2001] VSC 440
•23 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7754 of 2001
| JAMES RAINSFORD | Plaintiff |
| v. | |
| THE DIRECTOR OF PORT PHILLIP PRISON AND ANOTHER | Defendants |
---
JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 NOVEMBER 2001 | |
DATE OF JUDGMENT: | 23 NOVEMBER 2001 | |
CASE MAY BE CITED AS: | RAINSFORD v. THE DIRECTOR OF PORT PHILLIP PRISON & ANOR. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 440 | |
---
CATCHWORDS: Judicial Review – Separation order made in respect of prisoner – Order validly made – Judicial intervention not justified – Corrections Act 1986, ss.47, 54A, 56, 58E – Corrections Regulations 1998, Regulations 22, 44(1)(g).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First Defendant | Ms. Pamela Tate | Allens Arthur Robinson |
| For the Second Defendant | Mr. J. Tsalanidis | Victorian Government Solicitor |
HIS HONOUR:
The plaintiff is a prisoner in the Port Phillip Prison serving a sentence of 5 years and 9 months for offences of assault with intent to rape and indecent exposure.
Until Wednesday 12 September 2001 he was residing in the Sirius East Unit of the prison, a protection unit in the mainstream part of the prison.
On 12 September the prison authorities learned that the plaintiff had caused a letter he had written to a former female Corrections Officer known to him, to be smuggled out of the prison within another letter and envelope addressed to his solicitor. The letter to the Corrections Officer indicated that the plaintiff was sexually infatuated with her.
As a consequence of receiving the letter the Corrections Officer was very distressed and felt harassed and intimidated.
To send a letter harassing a person is a breach of regulation 44(1)(g) of the Corrections Regulations which reads:
"44.(1) A prisoner must not –
(g)send a letter threatening or harassing in nature or send or receive a letter or parcel containing an article or substance that the prisoner knows to be an unauthorised article or substance."
A decision was made that same day by the Director of the Prison to transfer the plaintiff to the Management Unit of the prison called the Charlotte Unit where he would be separated from the other prisoners.
The decision was made pursuant to regulation 22(1) of the Regulations which reads:
"22.(1)The Secretary may, in writing order the separation of a prisoner from other prisoners for a specified term if –
(a)the separation is necessary or desirable for the safety of the prisoner or other persons, or the security, good order or management of the prison; and
(b)the prisoner is only separated from other prisoners while the safety of the prisoners or other persons, or the security, good order or management of the prison is at risk."
The Director is the delegate of the Secretary for the purpose of regulation 22.
The Director's reasons for taking that action appear in his affidavit sworn 30 October 2001 the relevant paragraphs of which read:
"7.On or about 12 September 2001 I was told by Adam Hatfield, an Acting Manager, that a female former Corrections Officer at the Prison ('the former officer') had returned to the Prison a letter from the Plaintiff she had received in the mail at her home address. The letter had not been opened nor intercepted by prison staff.
8.I was immediately concerned that there had been any approach made by the Plaintiff to a female Corrections Officer as I knew the Plaintiff to be a repeat violent sex offender.
9.I was also concerned that the Plaintiff must have knowledge of the former officer's home address.
10.Adam Hatfield told me that the former officer was very distressed and she felt intimidated and sexually harassed by the letter. I was told that the letter showed Rainsford had a sexual fixation on the former officer and was infatuated by her. Now produced and shown to me and marked 'KJA-1' is a true copy of the letter sent by the Plaintiff to the former officer, with the name and address of the former officer suppressed.
11.Adam Hatfield told me that Security Intel Officers had commenced making inquiries about the incident and interviewing the Plaintiff.
12.I decided that the Plaintiff should be separated from other prisoners and sent to Management Unit (called the Charlotte Unit), pending a formal investigation. It is a prison offence, pursuant to regulation 44(1)(g) of the Corrections Regulations ('the Regulations'), for a prisoner to send a letter threatening or harassing in nature and a breach of the management, security and good order of the Prison for a prisoner to make inappropriate advances towards female staff.
13.In making that decision I took into account the individual circumstances of the case including the Plaintiff's history of convictions for violent sex offences and associated acts of violence. In addition to the Plaintiff's current convictions for assault with intent to rape and exposure, the Plaintiff had been convicted on 3 counts of rape in June 1986 and of indecent exposure in February 1986.
14.Based on the individual circumstances of the case I decided that it was appropriate for the Plaintiff to be withdrawn from other prisoners and placed in a high-observation unit until the investigation was complete or it was determined that he was no risk to the security of the Prison or at risk of harming himself.
15.On the same day (12 September 2001) I received a written report from Gary Joslin, Security Supervisor, who informed me that he and Security Intel Officers Paul Jackson and John Katiforis had spoken with the Plaintiff. The Plaintiff had explained that he had smuggled the letter out of the Prison inside a letter addressed to his solicitor for forwarding to the former officer."
On 13 September 2001 the Deputy Manager of the Sentence Management Unit of the prison made a formal separation order pursuant to s.56(2) of the Corrections Act endorsing the plaintiff's placement in the Management Unit pending investigation.
Section 56(2) reads:
"The Secretary may by instrument authorise the transfer of a prisoner or class of prisoners from one institution to another or from place to place within an institution."
The Deputy Manager of the Sentence Management Unit is a delegate of the Secretary for the purpose of s.56(2).
On 28 September 2001 the plaintiff filed an originating motion in the Court.
By his originating motion the plaintiff seeks the following orders:
"(1)Insofar as may be necessary, an order pursuant to order 56.02(3) extend the time for the commencement of the proceedings.
(2)An order/s in the nature of a mandatory injunction, in that the prison allow myself and others their right's as recognized in the Corrections Act s.47(1)(j), (k), (n), (o), (2).
(3)An order/s in the nature of a prohibitory injunction in that it is illegal to give prisoners full loss of privileges automatically on the first seven days of a separation order Reg. 22(1) and Act s.54(A).
(4)An order in the nature of mandamus directing that the prison authorities exercise a jurisdiction, namely prisoners not found guilty after spending time on pending investigation, be granted emergency management days. S.58(E) Corrections Act, and Reg. 70, Corrections Regulations 1998."
The grounds upon which he seeks the orders are three in number and read:
"(1)The prison erred in not allowing me my rights under s.47(1)(j), (k), (n), (o), (2).
(2)The prison erred in not allowing me to have a copy in writing. R.22(1) Notice of Separation of Prisoner.
(3)There are no grounds for a full loss of privileges under 54(A) Corrections Act 1986 for the first separation of prisoner."
The actions of the plaintiff in sending the letter in question were referred to the police for the police to investigate whether any criminal charges should be laid in the matter.
Following their investigation the police recommended that no criminal charges be laid but that the matter be determined in accordance with the disciplinary procedures of the prison.
On 2 October 2001 the plaintiff was moved back to the Sirius East Unit.
On 3 October 2001 the Director of the Prison learned that a second letter from the plaintiff had been received by the former Corrections Officer. It would appear that the second letter had been sent at the same time as the first letter.
The sections of the Corrections Act referred to by the plaintiff in his originating motion read:
"47. Prisoners rights
(1) Every prisoner has the following rights –
…
(j)the right to make complaints concerning prison management to the Minister, the Secretary, the Governor, an official visitor and the Ombudsman;
(k)the right to receive at least one visit which is to last at least half an hour in each week under section 37;
…
(n)the right to send and receive other letters uncensored by prison staff;
(o)the right to take part in educational programmes in the prison.
(2)A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law."
"54A. Power of Secretary to withdraw privileges
(1) If the Secretary is satisfied that –
(a)an investigation into whether a prisoner committed a prison offence is being carried out; or
(b)a prisoner has been charged under section 50(5)(d) with a prison offence; or
(c)steps have been taken to have an alleged prison offence dealt with under the criminal law –
the Secretary may withdraw one or more of the prisoner's privileges for such period as the Secretary thinks fit."
"58E. Emergency management days
(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation –
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or
(b)in other circumstances of an unforeseen and special nature.
(2)Sub-section (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section."
I now have before me summonses filed on behalf of the defendants whereby they seek (inter alia) an order pursuant to rule 23.01 of the Supreme Court Rules either permanently staying the proceeding or giving judgment for the defendants on the ground that the proceeding does not disclose a cause of action, is scandalous, frivolous or vexatious, and is an abuse of process of the court.
At the outset I wish to repeat portion of a general observation made quite recently by Curtin, J. in Fyfe v. State of South Australia[1].
[1](2000) S.A.S.C. 84
That was a case in which his Honour was dealing with a prisoner in a somewhat similar situation to that in which the present plaintiff found himself between 12 September and 2 October.
At paragraph 18 of his judgment his Honour said:
"There can be no question that it is the duty of this court to conduct a careful review and to closely scrutinize the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court surroundings."
Having considered the material placed before the Court in this matter it is my opinion that the decisions made first on 12 September and then on 13 September to transfer the plaintiff to the Charlotte Unit were valid decisions made by the Director of the Prison and the Manager of the Sentence Management Unit.
The plaintiff well knew that by breaching the Corrections Regulations in the way he did he would be disciplined. That much is clear from the opening words of the first letter sent by him to the former Corrections Officer which read:
"I hope this doesn't shock you too much but I thought what the ? If I end up in the slot it will be worth it."
Being separated from the other prisoners as he was it would follow that during the time he was separated he would be subjected to a particularly strict regime. But in my opinion that is not to the point. The plaintiff was only kept in the Charlotte Unit until such time as the police had completed their investigation into his behaviour and presumably that of his solicitor, and he was then transferred back to the Sirius East Unit.
I turn then to the specific orders the plaintiff seeks in his originating motion and summons.
1.Such an order is unnecessary. The plaintiff's originating motion was issued in time.
2.There is no basis upon which this Court should make any order in relation to the matters the subject of s.47(1)(j), (k), (n), (o) and (2) of the Act.
3.It was not illegal to withdraw the privileges of the plaintiff whilst he was in the Charlotte Unit. Section 54A of the Act specifically authorises the Secretary to take such action.
4.The power of the Secretary to reduce a prisoner's sentence pursuant to s.58E is discretionary and may be exercised in the circumstances specified in the section. Those circumstances did not apply in the case of the plaintiff. Accordingly he was not entitled to any such reduction.
In his originating motion the plaintiff alleges that the prison erred in not allowing him to have a copy in writing of the Notice of Separation. There is no requirement in the Act or the Regulations that a prisoner be provided with such a copy.
During the course of the hearing before me the plaintiff sought leave to seek a further order under s.58E reducing the number of days he is still to serve in prison to compensate him for the fact, so he said, that on an occasion he had spent time in what he described as an Emergency Unit, because there were no beds in the ordinary unit.
Assuming for the moment that what the plaintiff said is correct, in my opinion that would not entitle him to any benefit pursuant to s.58E.
In my opinion the plaintiff's proceeding does not disclose a cause of action and is both frivolous and vexatious.
I order that the name of the second defendant in the title to the proceeding be amended to read "The State of Victoria (Correctional Services Commissioner)".
I order that the plaintiff's originating motion and summons be dismissed. I order that the plaintiff pay the defendants' costs of the proceeding including any reserved costs.
---
0
0
0