Division 6Division 6 Correctional centre discipline
In this Division:correctional centre offence means any act or omission by an inmate (whether or not it is also a criminal offence):
(a) that occurs while the inmate is within a correctional centre or correctional complex or is taken to be in the custody of the general manager of a correctional centre, and(b) that is declared by the regulations to be a correctional centre offence for the purposes of this Division.criminal offence means an act or omission that constitutes an offence otherwise than as a consequence of its having been declared by the regulations to be a correctional centre offence for the purposes of this Division.
withdrawable privilege means a privilege or amenity that is declared by the regulations to be a withdrawable privilege for the purposes of this Division.
52 Hearing of charges by general manager
(1) If it is alleged that an inmate of a correctional centre has committed a correctional centre offence, the general manager of the correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation.(2) The following provisions apply to any such inquiry:(a) the inquiry must be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act and the regulations and the proper consideration of the charge permit,(b) the general manager is not bound by the rules of evidence, but may inform himself or herself of any matter in such manner as the general manager thinks fit,(c) the inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses,(d) except as provided by paragraph (e), the inmate is not entitled to be represented by an Australian legal practitioner or by any other person,(e) the general manager must allow a person (other than an Australian legal practitioner) to represent or assist the inmate if the general manager is satisfied:(i) that the inmate does not sufficiently understand the nature of the inquiry, or(ii) that the inmate does not understand English or is otherwise unable to properly represent himself or herself during the inquiry,(f) if the inmate refuses or fails to attend at any hearing during the inquiry, the general manager may hear and determine the matter in the inmate’s absence,(g) evidence is not to be given on oath or by affidavit at any hearing during the inquiry,(h) the general manager may allow any correctional officer or other person to be present, and to be heard, at any hearing during the inquiry,(i) the general manager may transfer the conduct of an inquiry to the general manager of another correctional centre to which the inmate has been transferred.(3) The regulations may make further provision for or with respect to the making of any such charge and the conduct of any such inquiry.
53 Penalties general manager may impose
(1) If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager may impose one (but not more than one) of the following penalties:(a) reprimand and caution,(b) deprivation, for up to 56 days, of such withdrawable privileges as the general manager may determine,(c) confinement to a cell for up to 7 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.(2) If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, but is of the opinion that a penalty should not be imposed:(a) the general manager may dismiss the charge, or(b) the general manager may defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period.(3) If, after conducting an inquiry, the general manager is not satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager must dismiss the charge.(4) A penalty imposed on an inmate by the general manager may be revoked by the general manager or by the Commissioner.
54 Reference of offences to Visiting Magistrate
(1) The general manager may refer a correctional centre offence with which an inmate is charged to a Visiting Magistrate for hearing and determination if the general manager considers that, because of the serious nature of the offence, it should be referred to a Visiting Magistrate.(2) A charge may be referred to a Visiting Magistrate without any inquiry being conducted by the general manager, or may be so referred during or after any such inquiry.
55 Hearing of charges by Visiting Magistrate
(1) This section applies to proceedings on a charge that is referred to a Visiting Magistrate under this Division.(2) Subject to this section:(a) the Criminal Procedure Act 1986 applies to and in respect of the proceedings in the same way as it applies to and in respect of proceedings on a court attendance notice issued for a summary offence before the Local Court, and(b) any order or decision that is made by the Visiting Magistrate in or in connection with any such proceedings is taken to have been made under that Act.(3) In its application to the proceedings, the Criminal Procedure Act 1986 is subject to such modifications as are prescribed by the regulations and to such other modifications as the Visiting Magistrate considers appropriate.(4) An inmate is entitled to be represented by an Australian legal practitioner in the proceedings.(5) Any hearing in the proceedings is to be held:(a) in the correctional centre at which the inmate is in custody, or(b) if the Visiting Magistrate is satisfied that it is in the interests of the administration of justice for it to be held elsewhere—at any other place appointed by the Visiting Magistrate (an appointed place).(5A) If a Visiting Magistrate appoints an appointed place for the holding of any hearing in the proceedings, the Visiting Magistrate may do any of the following:(a) direct that the inmate must appear before the Visiting Magistrate by way of audio visual link from the correctional centre at which the inmate is in custody,(b) direct that any other inmate who gives evidence or makes a submission in the hearing is to do so by way of audio visual link from the correctional centre at which that inmate is in custody,(c) direct that any person other than an inmate who gives evidence or makes a submission is to do so by way of audio visual link from any place within New South Wales nominated by the Visiting Magistrate.(5B) The Visiting Magistrate must not make a direction referred to in subsection (5A) if:(a) the necessary audio visual facilities are unavailable or cannot reasonably be made available, or(b) the Visiting Magistrate is satisfied that the direction would be unfair to a party to the proceedings.(5C) Facilities are to be made available for private communication between an inmate appearing by way of audio visual link under this section and the inmate’s representative in the proceedings if the inmate’s representative attends the hearing at the appointed place.(5D) Any place at which a person appears, gives evidence or makes a submission by way of audio visual link under this section is taken to be part of the appointed place.(5E) Subsection (5D) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.(5F) Subsection (5D) also has the effect that any offence committed at the place at which a person appears, gives evidence or makes a submission under this section by way of audio visual link is to be taken to have been committed at the appointed place.(5G) Sections 5D, 20A, 20B and 20D–20F of the Evidence (Audio and Audio Visual Links) Act 1998 apply, with such modifications as the Visiting Magistrate may direct, to proceedings in which a person appears, gives evidence or makes a submission by way of audio visual link under this section as they apply to the appearance, giving evidence or making of a submission by way of audio visual link in a proceeding before a NSW court under that Act.(5H) Nothing in this section prevents a direction under section 5BA (1) of the Evidence (Audio and Audio Visual Links) Act 1998being made in the proceedings.(6) If the inmate is transferred to another correctional centre, the Visiting Magistrate may transfer the proceedings to the Visiting Magistrate for the other correctional centre.
56 Penalties Visiting Magistrate may impose
(1) If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate may make an order imposing one (but not more than 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,(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 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.(2) If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, but is of the opinion that a penalty should not be imposed, the Visiting Magistrate may dismiss the charge.(3) If, after hearing the charge, the Visiting Magistrate is not satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate must dismiss the charge.(4) To avoid doubt, a Visiting Magistrate making an order referred to in subsection (1) (f) is a person exercising criminal jurisdiction for the purposes of the definition of court in section 3 (1) of the Crimes (Sentencing Procedure) Act 1999.
56A Penalty for use or possession of a mobile phone
(1) The general manager or Visiting Magistrate dealing with a charge relating to a correctional centre offence arising out of the use or possession of a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.(2) To avoid doubt, if a penalty is imposed under this section in respect of a correctional centre offence, a general manager or Visiting Magistrate must not also impose a penalty referred to in section 53 or 56, as the case may be, in respect of the same correctional centre offence.
(1) This section applies to a correctional centre offence arising out of:(a) the result of a test showing the presence of a drug in a non-invasive sample taken from or provided by an inmate, or(b) an inmate refusing or failing to provide, or enable to be taken, from the inmate a non-invasive sample when required to do so by a correctional officer of or above the rank of Assistant Superintendent.(2) The general manager or Visiting Magistrate dealing with a charge relating to an offence to which this section applies may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.(3) The general manager or Visiting Magistrate is not to make such an order if the inmate establishes that the drug:(a) was administered on and in accordance with the prescription of a registered medical practitioner or registered dentist, or(b) was lawfully supplied by, and taken in accordance with the instructions of, a registered medical practitioner, registered dentist or registered nurse, or(c) was taken or administered in such form or preparation as may be allowed by the regulations, or(d) was present in a quantity that does not exceed the quantity (if any) prescribed by the regulations, or(e) was not a drug within the meaning of this Act at the time it was taken by or administered to the inmate.
58 Certain offences may be dealt with by Local Court
If, during proceedings on a charge relating to a correctional centre offence, the Visiting Magistrate is of the opinion that the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, the Visiting Magistrate must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law.
59 Compensation for property damage
(1) If an inmate causes any loss of or damage to property as a result of committing a correctional centre offence, the general manager or Visiting Magistrate may, whether or not a penalty is imposed for the offence, order that the inmate pay to the Crown (or, if the property is owned by some other person, to that other person) a specified amount as compensation for the loss or damage.(2) The maximum amount of compensation that the general manager may order an inmate to pay is $500.(3) Compensation that an inmate is ordered to pay under this section is payable out of any money held by the general manager on behalf of the inmate or out of any other money otherwise payable to the inmate under this Act or the regulations.
If:(a) an inmate is charged with 2 or more correctional centre offences, and(b) the 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.
61 Record of punishments for correctional centre offences
(1) If a penalty is imposed on an inmate in relation to a correctional centre offence, the general manager must cause the following particulars to be recorded:(a) the nature and date of the offence,(b) the name of the inmate,(c) the date of sentence,(d) the penalty imposed,(e) any order for the payment of compensation.(2) The record must be kept at the correctional centre concerned and made available for inspection by such persons as the Commissioner considers appropriate.(3) The regulations may make provision for or with respect to the disposal of any such record.
62 Appeals against decisions of Visiting Magistrates
(1) An appeal against a penalty imposed by a Visiting Magistrate under section 56 (1) (e) or (f) may be made to the District Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 as if that penalty were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.(2) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an appeal arising under subsection (1) with such modifications as are made by or in accordance with the regulations under that Act.(3) The regulations may make provision for or with respect to the lodging and determination of appeals under this section.(4) Except as otherwise provided by this section, a decision of a Visiting Magistrate to impose a penalty on an inmate in proceedings under this Division is final and is not liable to be challenged, appealed against, quashed or called into question by any court.
(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.
64 False or misleading statements
(1) A person must not, in or in connection with any proceedings under this Division, make any statement that the person knows to be false or misleading in a material particular.Maximum penalty: 5 penalty units.
(2) This section does not apply to a statement verified by statutory declaration.
65 Offences may be dealt with by general manager of any correctional centre
A correctional centre offence may be dealt with under this Division by the general manager of a correctional centre, or by the Visiting Magistrate for a correctional centre, even though the offence was committed, or is alleged to have been committed, while the inmate was in another correctional centre or correctional complex or in the custody of the general manager of another correctional centre.