Middleton v Commissioner of Corrective Services of NSW & Anor

• 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30085/03 MARK ANTHONY MIDDLETON V COMMISSIONER OF CORRECTIVE SERVICES OF NEW SOUTH WALES & ANOR

JUDGMENT 1 HIS HONOUR: These are proceedings brought by the plaintiff, who is a maximum security prisoner at Lithgow Correctional Centre, seeking judicial review of three decisions:

a a decision made on 24 June 2004 by the Commissioner of Corrective Services ("the Commissioner") not to allow the plaintiff the use of a computer in his cell;

b a decision by the Governor of the Lithgow Correctional Centre ("the Governor") not to allow the plaintiff the use of a computer in his cell on 9 July 2002 or 17 July 2002; and

c a decision made by the Commissioner of Corrective Services not to allow the plaintiff to use a computer in his cell.

2 The plaintiff was sentenced in 1997 to seven years' imprisonment with a non-parole period of five years and seven months in Queensland, where he was held at various correctional centres until his transfer to New South Wales on 25 March 2002. He was initially held at the Silverwater Metropolitan Remand Reception Centre ("MMRC") and on 18 April 2002 was transferred to the Lithgow Correctional Centre.

3 In 1998, the plaintiff, who had previously progressed his education to Year 10, enrolled in 1998 in an Associated Degree in Mechanical Engineering at the University of Southern Queensland ("USQ"). He transferred to a Bachelor of Engineering at USQ and in 2001 enrolled in an additional degree of Bachelor of Information Technology at that university. 4 In May 2001 the plaintiff applied to replace a desktop computer that he had previously owned. In April 2002 a desktop computer was placed in prison storage and the plaintiff was unable to access it. 5 In Queensland the plaintiff was permitted access to his computer in his cell during lockdown periods for educational purposes. This enabled him, on the plaintiff's evidence, to successfully complete some half of the units for both courses, gaining a high distinction in a number of subjects. 6 The courses the plaintiff had undertaken required access to a computer and specialised software. Because of the heavy workload involved in doing the two degrees after a period of some twenty-three years' interruption in his education he required extensive and continuous access to the computer and the relevant software. 7 In Queensland, the relevant Corrective Services Act and Regulations had authorised the use of computers in a prisoner's cell regardless of the security classification. While there, the applicant studied for at least forty hours per week during lockdown periods. 8 Since being prevented from access to his computer, the plaintiff has been obliged to drop out of every course, except one which did not require access to a computer, because he was unable to meet the necessary course requirements.

9 The Commissioner for Corrective Services, empowered under the Crimes (Administration of Sentences) Act 1999 ("the Act"), has the control of all correctional complexes and a power to delegate. Section 79 of the Act provides for the making of provision for "the physical, psychological and spiritual welfare of inmates whilst in custody and following their release" and "the acquisition by inmates of educational and vocational training". 10 The Crimes (Administration of Sentences) Regulation 2001 ("the Regulations") provides relevantly that: R 60 Inmate Services and Programs (1) The Commissioner may provide an inmate with services and programs that offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending. (2) Without limiting sub-clause (1), such services and programs may include: ... (e) literacy and numeracy programs, (f) educational and vocational training programs, including the provision of libraries...

11 Exhibited before the court is the Corporate Plan (2001 to 2004) of the New South Wales Department of Corrective Services, which bears the following Mission Statement: "(To) reduce re-offending through secure, safe and humane management of offenders".

12 The Corporate Plan includes, under this guarantee of service, the following: "(to) provide opportunity, encouragement and program pathways for offenders under supervision in the community and inmates of Correctional Services to enable them to acquire skills, address deficits and assume responsibility for living constructive law-abiding lives; (and) (to) provide correctional services that meet legislative standards, court requirements and reasonable community expectations." 13 Under the heading of "Statement of Principles and Values", it states: "The Department is committed to managing offenders safely, effectively and humanely while preparing them to lead worthwhile and productive lives".

14 Further, under the heading of "Key Performance Measures", there is the sub-heading of "Inmate Services and Programs" which include: "Inmate participation in and completion of programs which lead to a reduction in high risk and offence-related behaviour."

15 There has also been exhibited before the court part of a document described as "Operations Procedure Manual" (the "OPM") headed "5.4 - Computer Use for Educational and Vocational Training", as well as a document headed "5.2 - Educational". Both of these documents create an operations manual under "4 - Questions of Education and Computer Use" and there is, to some extent, overlap between both of those documents. The documents purport, by reference to the word "legislation" to refer to the Crimes (Administration of Sentences) Regulation 2001, cll 60 and 61, to be published as a reflection of the powers set out in r 60 dealing with inmate services and programs relating to education. 16 The only relevance of r 61 is to cast, in making use of inmates' services, an obligation on an inmate to comply with lawful and reasonable directions in the carrying out of the provision of the services (here, educational), to the inmate. 17 The part of the OPM which deals with computer use in what is called a "Policy Overview" relevantly says:

"The Governor may permit inmates to use personal computers, laptops, associated hardware, for instance printers and scanners, and software (eg disks, CDs and software packages) for the purposes of education and/or vocational training".

18 The use of computer equipment and software packages by inmates is recognised as an integral part of education and/or vocational training programs in correctional centres. This part of the OPM then deals with a wide range of matters relating particularly to the use of disk and disk data transferred, and then goes on to a provision "5.4.3 - Inmate Purchase of Laptop Computers". This division of the OPM sets out the procedure for the acquisition of laptops but specifically excludes personal desktop computers. It also specifically requires the express approval of the Governor for the use of laptops outside the inmates' cells or education area, and prohibits removal of the laptop even for study purposes.

19 Application was made by the plaintiff on 29 May 2002 to the Commissioner for access to use his own desktop computer in his cell. He did not apply for permission to purchase or use a laptop. He described his course of study and the fact that he had been able to use his computer for the years that he was in correctional centres in Queensland and set out his need, with his heavy course of study, for the use of the computer. He pointed out that in Queensland he was allowed to have his computer on the condition that it did not contain a modem or internet capabilities to contact society outside, which his computer did not contain. The plaintiff further pointed out that he was in a Queensland maximum security facility and that he did not abuse his computer, and that since being brought to New South Wales, his education has been compromised. He pointed out that his computer had been cleared by the relevant information technology people in Queensland and that he was willing to have the computer desktop subjected to the same processes in New South Wales, if required. He further pointed out that one of the staff members at Silverwater MRRC was an education officer for a period of time in Queensland and that that officer could verify that he had taken his education very seriously.

20 Exhibited before the court is an internal memo from the Governor of Lithgow Correctional Centre dated 7 June 2002 which refers specifically to the application of the plaintiff and sets out, in part, the following: "Computers can only be purchased by minimum-security inmates",

then refers to section 5.2.3 of the OPM which states that: "No computer is permitted in units or cells at this correctional centre due to security concerns".

21 The letter then refers to the fact that computers are located in the education section of the prison. 22 In a letter of the Commissioner for Corrective Services dated 24 June 2002, the plaintiff's application is referred to, and inter alia it was said: "I can advise that due to security reasons, Lithgow Correctional Centre does not permit the use of computers in cells or unit areas at any time. Access to computers is available in the education section of the centre and in units 5 and 6 during structured education sessions. In accordance with the Department's Operations Procedures Manual, only minimum security inmates are permitted to purchase computers".

23 The plaintiff then wrote to the Governor of the Lithgow Correctional Centre, David Tawhara, on 8 July 2002, setting out the history of his educational progress, forwarding the Commissioner's letter to him, and assuring the Governor that he would not abuse the privilege, as he had not done in Queensland. The plaintiff also asked in the letter if it would be possible to have access to a computer borrowed from the education section to use in his cell from lockdown to morning unlock, at which time it would be returned to the desk officers. He then sought, if this request was refused, that reasons be set out in order that the matter may be decided before the court. 24 On 17 July 2002 the plaintiff wrote again to the Commissioner, pointing out that he had endeavoured to see the Governor at Lithgow Correctional Centre on 13 July 2002 and that the Governor had said he would see him the following day and that he had not seen him since. He reiterated that he had not abused his privilege in Queensland of having computer access and sought reasons as to why he was refused. 25 On 7 August 2002 the Commissioner wrote to the plaintiff in the following terms: "I refer to your letter dated 17 July 2002, requesting the use of a laptop computer in your cell. "I can advise that the Department considers educational and the vocational training an integral part of an inmate's rehabilitation and encourages inmates to pursue approved education and/or training programs whilst in custody. As stated in my previous letter to you dated 24 June 2002, inmates are provided with access to dedicated educational areas during out of cell hours. "Section 5.4.3 of the Department's Operations Procedures Manual states, in part, the purchase of a laptop is restricted to minimum-security inmates for the purpose of undertaking approved education and/or vocational training programs. "I can advise that no further correspondence will be entered into with yourself in relation to this matter. Recommend (sic) that you work towards a minimum-security classification, so that you may be eligible to use a laptop computer for your future studies."

26 The letter is, of course, inappropriately framed as the property which was held by Corrective Services was a desktop computer, there having been no application made to purchase a laptop. Furthermore, the reference to advancing the plaintiff's classification was completely inappropriate since the plaintiff could not advance his classification due to the policy of the prison. 27 It is important to set out the process under r 22 of the Regulations for classification of male inmates. Classification of male inmates is expressed in the following terms: R 22 Classification of Male Inmates (cf clause 10 of Correctional Centre Routine Regulation 1995) (1) Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs: 'Category A1', being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment. 'Category A2', being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment. 'Category B', being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier. 'Category C1', being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. 'Category C2', being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner. 'Category C3', being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised. (2) Subject to clause 27, the Commissioner may at any time vary or revoke a classification under this clause".

28 From this it will be seen that the categories of classification are divided into maximum, medium and minimum security, classifications A1 and A2 being maximum security, B being medium security and C1, C2 and C3 minimum security. The evidence before the court from the Governor of Lithgow Correctional Centre in regard to the plaintiff's classification is in the following terms: "As he is facing a number of serious criminal charges, Inmate Middleton will not be eligible for re-classification until these charges have been heard and his release date adjusted".

29 Although the plaintiff passed his non-parole period on 13 November 2003 and he is now eligible for consideration for parole, he cannot be so considered until the matters still pending against him are determined. They may not be for some months. The policy of the prison system is that he cannot progress. The Governor's evidence states that as the plaintiff is an A2 inmate, his classification is reviewed every six months, and further states: "Reduction of classification is based on such factors as risk to the community, time to serve and whether the inmate has addressed his offending behaviour".

30 It is difficult to see how the withholding of re-classification can be based on failure to address offending behaviour when there has not yet been a conviction for that offending behaviour. The reasons given by the Commissioner for Corrective Services are therefore quite inappropriate for the decision made.

31 The evidence of the plaintiff set out extensively the difficulty he has in accessing the educational facilities at the correctional centre and it is clear that the hours in which access is permitted do not permit him sufficient time and do not have appropriate capacity for him to carry out his studies. That is not, of itself, a criticism of the general system, since the plaintiff's needs are substantial and I suspect extremely unusual and may in fact be unique. 32 The plaintiff's evidence is that there are not sufficient computers for everybody's need and he is often interrupted with requests for assistance from other inmates. He has attempted to work out the computer programmes on pen and paper in his cell but his evidence is that it just is an impossible task to correct matters without the use of a computer if, in fact, an error has been made. The evidence before the court is of the, in some cases, serendipitous but in many cases symptomatic restrictions on the time that the plaintiff has for computers within the prison system, and I am satisfied on the evidence that the only way he can continue the course in which he has invested many years of his life is to have use of his own computer or a computer system provided for him, as appropriate, to use outside normal computer access time. The Defendant's Evidence

33 The defendant says that the basis of the control of the computer desktop is under rr 10, 49 and 115 of the Regulations. It is sufficient to set out the relevant part of r 10: Reg 10 How Property Surrendered On Reception To Be Dealt With (cf clause 29 of Correctional Centre Routine Regulation 1995) (1) On receiving property surrendered or delivered in connection with an inmate's reception into a correctional centre, the governor must determine which items of property may, and which may not, be retained at the centre. (2) Property that the governor determines may be retained at a correctional centre: (a) may be returned to the inmate for use in the centre unless to do so would, in the governor's opinion, constitute a security or safety risk, or (b) may be retained by the governor for return to the inmate on the inmate's release from custody...

34 It has been put on behalf of the defendant that the desktop computer could only be released if the Governor was of the view that it was not a security or safety risk, and the defendant says that r 60 deals with educational programs and cannot be read as affecting rr 10, 49 and 115. It is put that r 60 does not extend to any chattel which may be required for any of the education and vocational training programs referred to in r 60 and the submission of the defendant is that r 60 does not authorise a Governor to admit chattels to the correctional centre. 35 It is further put by the defendant that no inmate is permitted to have a desktop computer, as only low security inmates are permitted, this arising from the specific reference to the security status of prisoners and this, it is put, picks up the reference in r 10(2)(a). 36 The power of persons exercising powers such as the Commissioner of Corrective Services and the Governor, whose exercise is subject to the Commissioner's control, has been variously examined by the courts but I refer particularly to the judgment of Dixon J in Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360: "But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."

37 This reflects the sort of principles established in House v The King (1936) 55 CLR 499 at 505. 38 Governor David Tawhara of Lithgow Correctional Centre said that he referred to the policy as outlined in the OPM and that the Manual states that only minimum security inmates may be permitted to purchase laptop computers. He said that he understood the policy was necessary for security reasons, citing the difficulty of monitoring the information contained in computers. 39 Governor Tawhara deposed that he had permitted computers to be removed from training centres for use in other parts of Lithgow Correctional Centre by inmates with special needs, and set out several examples of the circumstances, conditions and supervision under which they can be used. 40 In his evidence he said that at the time of the plaintiff's request he was aware of a request by one Neddy Smith to have permission to use a laptop which related to the needs arising from Smith's Parkinson's disease, and that that permision had been revoked. 41 Governor Tawhara said: "I do not consider that the educational needs were enough of a special circumstance in this case to justify making an exception to allow him unsupervised access in his cell to a computer from the education facilities".

42 The Governor's evidence further was that he did not consider there were sufficient special circumstances to recommend an exemption. His evidence was that he was aware that consequent upon permission being given to Smith, that he could recommend a maximum security prisoner be allowed to have a laptop computer in his cell. 43 He then said he did not recall the precise circumstances of the conversation but he identified a file note which indicated that the request had been declined. That file note was attached.

44 It is clear that the OPM, which is a publication for guidance of practice within the Corrective Services prison system, cannot limit the power granted by the Regulations to allow educational facilities to be used. 45 I reject the submission that r 10 of the Regulations referred to by the defendant is determinative of the issue. Obviously if a prisoner were learning explosives, firearms, archery or tunnelling there would be circumstances in which anything within the Commissioner's control could be prevented. Clearly there must be control of all physical items which are the property of prisoners. That, however, does not limit the way in which the discretionary powers under the Regulations to control property are determined. 46 Regulation 60 sets out a discretion under the purposes of the legislation, regulations and policies that are designed for the rehabilitation of prisoners. It is hard to imagine a better rehabilitation tool than the gaining of tertiary qualifications of a sophisticated nature, as the plaintiff is carrying out.

47 I am satisfied that the limitations placed on him by the exigencies of the prison system have prevented and will prevent him from carrying out his education. 48 That, of course, is not an issue before the court. The issue before the court is the decision making both of the Commissioner and the Governor. Clearly the question of prisoner classification deals with prison security. Prisoner classification, as set out above, deals with the circumstances in which people are held. Clearly there are going to be educational tools which, if not properly limited or supervised, may be used inappropriately. As is put on behalf of the defendant, matters such as the movement of officers and other information concerning officers might be inappropriately contained within a computer. That, of course, can be done manually, even if a computer were not used. Nevertheless, it is a concern, one that could just as easily apply to a minimum security prisoner but obviously is more likely to be of concern with a maximum or medium security prisoner. 49 The process whereby both the Governor and the Commissioner dealt with the matter of the applicant acquiring a laptop and dealing with a laptop meant that their consideration of the issue was inappropriate. The emplacement of a blanket prohibition in all the circumstances on medium and heavy security prisoners from using computer desktops is a restriction on the proper exercise of the discretion conferred on them by the Regulations. The two regulations (rr 60 and 10) concerning physical use of property and educational purposes are not inconsistent, and obviously, there is no absolute rule for the control of property of inmates and in the provision of educational services for the sort of example I have set out above. 50 The issue is as to whether there has been a proper exercise of the discretion notwithstanding the assertion by both the Commissioner and the Governor that the computer desktop is not available to other than minimum security prisoners. The evidence before me is that in the case of the prisoner Neddy Smith, it was permitted. There is therefore, in fact, a discretion exercised in that case, and therefore the exercise of the discretion in this case was inappropriate because there was in effect, in accordance with Avon Downs (supra), no exercise of discretion. There was a blanket prohibition on people of certain classifications. 51 As I have indicated, the classifications relate to the physical circumstances under which the prisoners are held and an examination of the classifications show that they specifically relate to walls, doors, electronic devices and so on in setting up the various classifications. Therefore, these are inappropriate matters to consider when the evidence before me is that a discretion can be exercised in a particular case, irrespective of classification.

52 Clearly not every prisoner is going to come within the circumstances of the plaintiff but his needs, carrying out the policy of the prison and the policy implicit in the Act for rehabilitation, are considerable because he is exercising that rehabilitation, and so it requires different consideration to other people who may seek to have use of a computer desktop. The fact of his appropriate use of these within the Queensland corrective system and the fact that there are restrictions on access to the internet and substantial supervision to ensure proper use of the computers were not in fact even considered. It was simply an abrogation of the proper exercise of the discretion by the Commissioner and the Governor. The whole tenor of Corrective Services has through it a concern for rehabilitation. That is a matter which needs to be taken into account as part of the factors in the exercise of discretion in an application such as this. 53 Although the material in the various applications put before the Governor and the Commissioner was limited, it was in fact sufficient to put them on notice that there was a computer desktop available, that it was not the acquisition of a laptop that was being considered, and that it was a request which required proper consideration. The failure, in my view, to examine the matter appropriately is a failure to exercise the discharge of the exact function according to the law as Dixon J set out in Avon Downs (supra), and is in breach of the principles set out in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96, 98 which applied Gummow J in Kahn v Minister for Immigration, Local Government and Ethnic Affairs, unreported, 11 December 1987. The principle there reaffirmed is that the Commissioner and Governor were required to consider all relevant material which is placed before him and that there should be "...proper, genuine and realistic consideration to the merits of the case."

54 That, here, did not occur and in my view, therefore, the proper exercise of the discretion in the circumstances of this case miscarried. The inflexible application of a policy of prohibiting a class of prisoner is not a proper exercise of the needs of the plaintiff who, at this stage, is in fact, but for charges of which he has not yet been convicted, eligible for consideration for parole, but if convicted will then be, for the first time, eligible to change his classification. To state that he has to work towards change of classification when he can obviously do nothing about it in terms of the prisoner classification system on the evidence before me is a capricious statement, in light of the entitlement of the plaintiff to have a proper consideration of his application. 55 In my view, therefore, it is appropriate not that I state, as asked by the plaintiff, a declaration that Part 5.4.3 of the OPM is ultra vires, it being sufficient to say that the policy does not bind and clearly cannot bind the proper exercise of a discretion conferred under the Act and under the Regulations in relation to property, that that examination in each particular case will have to take into account matters of security, and that is not just of physical security or safety but matters of security in the wider sense of that word, and that every application will have to be considered on its merits. 56 In the light of the plaintiff having succeeded in the matter and in the quite appropriate model litigant statement that is supported, I order that the defendant pay the costs of the plaintiff.

i. That the consideration of the making available of appropriate computer desktop facilities and related programs sought by the plaintiff be referred back to the Commissioner and the Governor to be reconsidered according to the law;

ii. I quash the determinations made by Governor Tawhara and Commissioner Wood in respect of the three applications; iii. defendant to pay plaintiff's costs

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