A.07.02.R1 Disciplinary Offence Penalties (National Requirements)

Hearing Adjudicator

The Hearing Adjudicator can impose one or more of the following penalties under section 133(3) and (4) of the Corrections Act 2004:

• Forfeiture or postponement of privileges for any period not exceeding 28 days.
• Forfeiture of earnings for any period not exceeding 7 days.
• Confinement in a cell for any period not exceeding 7 days.
• If the offence proved is an offence under section 128, 129, 130, or 131 (having an article in his or her cell or possession or giving or receiving any article or attempting to obtain any article without the approval of an officer), the Hearing Adjudicator can order that the article be forfeited to the Crown.
• If the offence is an offence under section 128, 129, 130, or 131 (an article as used in an offence that has been proved), the Hearing Adjudicator may order that the article be forfeited to the Crown for the article's destruction.
• If the offence relates to damaging or losing prison property or property that is not their own (section 128(1)(h)) the Hearing Adjudicator can order that an amount of up to $100 be withdrawn or withheld from the prisoner’s earnings.
• If the offence against discipline was committed while the prisoner was on a temporary release, the Hearing Adjudicator can order that an amount of up to $100 from the prisoner’s earnings payable under section 67 be forfeited to the Crown.

The Visiting Justice

The Visiting Justice can impose one or more of the following penalties under section 137(3) and (4) of the Corrections Act 2004:

• Forfeiture or postponement of any privileges for any period not exceeding 3 months.
• Forfeiture of earnings for any period not exceeding 3 months.
• Confinement in a cell for any period not exceeding 15 days.
• If the offence proved is an offence under section 128, 129, 130, or 131 (having an article in his or her cell or possession or giving or receiving any article or attempting to obtain any article without the approval of an officer), the Visiting Justice can order that the article be forfeited to the Crown.
• If the offence is not an offence under section 128, 129, 130, or 131 (an article was used in an offence that has been proved), the Visiting Justice may order that the article be forfeited to the Crown for the article's destruction.
• If the offence relates to damaging or losing prison property or property that is not their own (section 128(1)(h)) the Visiting Justice can order that an amount of up to $500 be withdrawn or withheld from the prisoner’s earnings.
• If the offence against discipline was committed while the prisoner was on a temporary release, the Visiting Justice can order that an amount of up to $500 from the prisoner’s earnings payable under section 67 be forfeited to the Crown.

If the case was referred by an Adjudicator to a Visiting Justice for hearing under section 134(2)(b) of the Corrections Act 2004 (because of the complexity of the issues likely to arise) or under section 135(3) (because the prisoner has been given permission to be legally represented), the Visiting Justice can only impose one or more of the penalties set out in section 133(3) of the Act (i.e. one of the penalties that could have been imposed by the Hearing Adjudicator) unless:

• The case was also referred for hearing under section 134(2)(a) or (c); or
• The Visiting Justice considers the case could have been referred to them for hearing under section 134(2)(a) (for higher penalty) instead of under section 134(2)(b) or section 135(3).

Penalties not Cumulative

• Penalties are not cumulative and cannot be deferred.

No Power to

There is no power to:

1. order a prisoner to come for sentence if called upon, or
2. impose a suspended sentence to take effect only if future conduct is unsatisfactory.

Commencement of penalties

1. A penalty imposed under section 133 or 137 commences on the date it is imposed and may not be cumulative upon any other penalty imposed under sections 133 or 137 (section 140(1) of the Corrections Act).
2. If an appeal is lodged, any penalty imposed by the Hearing Adjudicator is suspended until the appeal is disposed of.

Forfeiture of privileges

1. The penalty of forfeiture of privileges imposed on a prisoner pursuant to section 133(3)(a) or 137(3)(a) of the Act comprises the loss or postponement of all of the following privileges specified in regulation 158 of the Corrections Regulations 2005:
   1. the opportunity to be in common areas of the prison after the evening meal; and
   2. the opportunity to make telephone calls after the evening meal; and
   3. participation in a recreational activity, course, or programme that is not part of the prisoner’s management plan; and
   4. use of, or access to, films, videotapes, records, cassettes, or compact discs; and
   5. use of a television, radio, audio cassette player, compact disc player, or other electronic equipment used for recreational purposes; and
   6. use of a musical instrument, unless it is part of a prisoner’s management plan; and
   7. pursuit of a hobby; and
   8. purchase of anything other than essential toiletries, tobacco, writing materials, and stamps.
2. Prisoners may purchase phone cards for the purpose of exercising their entitlement to making at least 1 outgoing telephone call of up to 5 minutes' duration per week.
3. The loss of opportunity to make telephone calls after the evening meal does not include the loss of telephone calls to which a prisoner is entitled to make under the Corrections Act 2004 or Corrections Regulations 2005. For example, a sentenced prisoner is entitled to have access to a telephone at all reasonable times for the purpose of communicating with his or her legal adviser about pending proceedings (regulation 86 (1)(b)).
4. Subject to the objectives of prison security, prisoner safety, staff safety and protection of members of the community from danger of harassment, a prisoner off privileges is entitled to:
   • normal visiting arrangements.
   • approved and scheduled management plan activities including home leave, release to work, and other temporary leaves for education or treatment purposes (these activities continue when prisoners are "off privileges" unless the nature of the misconduct suggests that the prisoner is not suitable for leave).
   • telephone calls during the hours of unlock.
   • use of library facilities.
   • access to religious activities.
   • incoming and outgoing mail.
   • normal diet.
5. If a Hearing adjudicator or Visiting Justice has imposed a penalty of forfeiture of privileges (loss of privileges) on a prisoner who is in shared accommodation, prison management must take all reasonable steps to ensure that the prisoner not subject to loss of privileges is not unduly impacted. However, if it is not practicable to move either prisoner, the prisoner who is not subject to loss of privileges will be deprived the property set out in Corrections Regulations 158 (1) (d) to 158 (1)( f) (e.g. television, and stereo). Prison management must consider the following options in the order they are listed:
   1. move the prisoner who is subject to loss of privileges into a single cell to complete the penalty, or
   2. move the prisoner into a shared cell with a compatible prisoner who is also subject to loss of privileges, or
   3. if the prisoner subject to loss of privileges cannot be reasonably moved to another cell, the prison manager or delegate must obtain the written consent of the prisoner (Form A.07.01.F5 Prisoner consent to remain in shared cell with Prisoner on loss of privileges) who is not subject to loss of privileges to remain in the cell with the prisoner who is subject to the penalty, and remove:
      1. all records, cassettes, or compact discs from the cell, and
      2. the television, radio, audio cassette player, compact disc player, or other electronic equipment used for recreational purposes, and
      3. any musical instrument, (unless it is part of either prisoners’ management plan).
   4. if the prisoner does not consent, the prison manager may consider all available options to ensure that the prisoner who is not subject to loss of privileges is not deprived of any of the privileges they are entitled to.

Forfeiture of Earnings

1. There is authority for a Hearing Adjudicator to order forfeiture of the prisoner’s future earnings for up to 7 days and for a Visiting Justice, up to 3 months.
2. Forfeiture of earnings is effective from the day the sentence is imposed. Hence a prisoner ordered to forfeit seven days earnings will not be credited with earnings on that day and the following six days.
3. A prisoner found guilty of committing an offence under section 130(1) or (2) of the Act while on a temporary release from custody may be ordered to forfeit an amount to the Crown from any wages or salary payable to the Chief Executive for the credit of the prisoner for work done during the temporary release (up to $100 in the case of charges heard by a Hearing Adjudicator and $500 in the case of charges heard by a Visiting Justice).

Cell Confinement

Every prisoner sentenced to cell confinement retains the minimum entitlements referred to in section 69 Corrections Act 2004 but may be denied access to private visitors as provided for in section 73; the right to make outgoing telephone calls under section 77(3); the right to communicate using any specified device or medium of communication; or of accessing information and education pursuant to section 78 of the Act for the period of his or her confinement.

Note that the loss of the right to make telephone calls relates only to those calls permitted under section 77(3) of the Act and does not include the loss of telephone calls to which a prisoner is otherwise entitled to make under the Corrections Act 2004 or Corrections Regulations (refer in particular to regulation 86 of the Corrections Regulations 2005).

Forfeiture of article

• When an offence is proved under section 128(1)(f) an order may be made that the article in question be forfeited to the Crown, regardless of whether any other penalty is imposed.

Withdrawal or withholding of earnings

When a prisoner is convicted of an offence under section 128(1)(h) of the Act (damage to property) the person conducting the hearing may order that a specified amount be withdrawn or withheld from the earnings payable under sections 66 or 67 of the Act and credited to the prisoner.

Note: This penalty is always to be managed as withholding or forfeiture of future earnings. Once paid into a prisoner’s trust account, earnings should not be withdrawn as it is not always possible to distinguish earnings in the account from other monies paid on a prisoner’s behalf.

Other Procedures

1. No penalty under section 133 or section 137 of the Corrections Act 2004 may be imposed on a prisoner charged with a disciplinary offence unless:
   1. A disciplinary hearing is held; and
   2. Either the prisoner pleads guilty to the disciplinary offence or the prisoner is found guilty of that offence.
2. If a prisoner is charged with a disciplinary offence and is awaiting hearing the prisoner retains the minimum entitlements referred to in section 69 of the Corrections Act 2004 and the prisoner must not be punished at any time before the disciplinary hearing has concluded.
3. No prisoner may be punished more than once for the same disciplinary offence.
4. A person holding a disciplinary hearing must not make a decision on whether a charge against a prisoner is proven if -
   1. the prisoner has been charged with a criminal offence relating to the same incident that gave rise to the disciplinary offence, or
   2. the Prison Manager is awaiting a decision by the Police as to whether the prisoner will be charged with a criminal offence in relation to that incident (Corrections Regulations, schedule 7, clause 50).
5. Where any of the situations referred to in paragraph 4 above apply, a hearing may be continued only if the Police notify the prison that the prisoner will not be charged with a criminal offence (Corrections Regulations, schedule 7, clause 51).