Middleton v Commissioner of Corrective Services of NSW & Anor

Middleton v Commissioner of Corrective Services of NSW & Anor - [2004] NSWSC 136 - NSWSC 2003 case summary — Zoe

[23]

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."

[24]

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".

[30]

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."

[34]

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.

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