Plaintiff v Defendants

Supreme Court of Victoria|2010-04-21|Before: WILLIAMS J

PRACTICE & PROCEDURE - ADMINISTRATIVE LAW - Relief in the nature of certiorari and mandamus - Challenge to decision of Major Offenders Review Panel - Denial of prisoner's application for in-cell computer - Previous non-compliance with requirements for in-cell computer use - Application refused.

Nafsika Sahinidis, Manager Legal Services, Corrections Victoria

1 The plaintiff ('Mr Coulston') is presently serving a life sentence, with no minimum term, at HM Prison Barwon, Victoria. His sentence was imposed by the Court on 11 September 1995. He now seeks orders relating to the refusal of his request for an 'in-cell' computer on 12 October 2009 by a body of senior officers within Corrections Victoria known as the Major Offenders Review Panel ('the Panel').

2 The defendants are Mr Roderick Wise, described as 'Corrections Victoria Deputy Commissioner', Mr Bob Hastings, described as 'Corrections Victoria Commissioner', Ms Vicki Ryan, described as 'General Manager [Major Offenders Unit]' and Mr Trevor Pickering, described as 'General Manager SMU'. No point was taken as to the availability of the relief sought against the defendants as members of the Panel.

3 By his originating motion filed on 8 December 2009, Mr Coulston seeks first, leave to commence proceedings, which is not required.

• 'an order in the nature of a "prohibitory injunction" restraining the defendant officers from refusing to allow the processing of [his] Application for Access to a Personal Computer';

• in the alternative, 'an order in the nature of mandamus requiring the defendant to reconsider [his] Application for Access to a Personal Computer according to the law'; and

• a declaration that his application be re-considered.

5 Mr Coulston was unrepresented before the Court. He pointed out, and I have noted, his lack of legal training and his limited access to legal materials. Accordingly, I have considered the substance of his application, rather than its form. As a result, I have treated the application as one seeking relief in the nature of certiorari in addition to the other relief sought. This approach was endorsed by counsel for the defendants.

6 I note at this point that Mr Coulston's application for an in-cell computer came before the Panel because it had classified him as a 'major offender' in 2006. The Panel is responsible for classifying as such those prisoners considered to require a greater degree of supervision and monitoring than others. This may be for reasons including that they are thought to be particularly dangerous or to pose significant risks to staff and prisoners or because they have a history of escape or are of a high profile within the prison and the community as a result of their particularly serious or abhorrent crimes.

7 Mr Coulston relies upon his own affidavit affirmed on 30 November 2009.

8 The defendants rely upon the affidavit of Brendan Francis Money, the Acting Assistant Commissioner of Corrections Victoria. Mr Money's responsibilities at the time of swearing his affidavit included overseeing the Sentence Management Unit, the Major Offenders Unit, the Adult Parole Board Secretariat and a range of State-wide support services. Mr Money reported to Mr Hastings, the Commissioner, Corrections Victoria.

9 Before I turn to the facts, I will refer to relevant statutory provisions.

10 Section 47 of the Corrections Act 1986 ('the Act') lists the rights of every prisoner to whom the Act applies, including Mr Coulston. It does not provide for any right of access to a computer, in-cell or otherwise.

11 Section 112 of the Act contains a regulation-making power. Under sub-s 112(a), the Governor in Council is given the power to make regulations with respect to 'the privileges of prisoners'.

12 Regulation 42 of the Corrections Regulations 2009 requires the Commissioner to submit to the Secretary of the Department of Justice for approval a list of prisoner privileges to operate in prisons for all prisoners.

13 The list of prisoner privileges issued by the Director for 2009 and 2010 exhibited to Mr Money's affidavit makes no express reference to access to in-cell computers but it does include 'access to computers or electronic games consoles and associated software'.

14 If a prisoner demonstrates a need for access to an in-cell computer and it is appropriate that access be provided, the Commissioner, Corrections Victoria may permit it at his discretion.

15 Mr Wise as the Acting Commissioner of Offender Management Services of Corrections Victoria provided relevant 'instructions for the policy and procedures, relating to the purchase or lease of personal computers for prisoners' in a document entitled the 'Commissioner's Requirement' and 'Prisoner Computers' which was issued in May 2009 ('the Commissioner's Requirement').

16 The Commissioner's Requirement sets out the philosophy and background in relation to the instructions as follows:

Corrections Victoria may allow prisoners to have a personal computer in their accommodation, where it can be demonstrated that there is a genuine educational or legal benefit to the prisoner or a positive contribution to the prisoner's sentence plan and rehabilitative need.

Prisoners' human rights are limited only to the extent that it is reasonably and demonstratively justifiable. All staff must act compatibly with human rights and consider human rights when making decisions.

Prisoners' access to computers must be strictly controlled and monitored and only given in circumstances that can balance and manage security and the purpose of access to a computer (e.g. to prepare for a trial or if necessary for education)...

17 The Director of Prison Services also issued the Director's Instruction No. 4.14 'Prisoner Computers' on 11 May 2009 ('the Director's Instruction').

18 The Director's Instruction sets out the eligibility criteria in relation to computer access in paragraph 1.1. They effectively mirror those in the Commissioner's Requirement and appear as follows:

1.1 Eligibility criteria

Prisoners making application to purchase computer equipment or to lease computer equipment must be eligible under at least ONE of the following criteria:

...

Educational/training

The prisoner has approval to engage in an education program ... for which access to an in-cell computer is required.

...

Exceptional circumstances

A prisoner may be granted approval for an in-cell computer where the General Manager or delegate considers that exceptional circumstances exist. For example:

A prisoner may have a disability, which affects their capacity to communicate.
A prisoner may require the computer to assist with their reintegration upon the expiry of their sentence. To qualify, the prisoner needs to be in the last 12 months of their sentence ...

An In-Cell Computer Must be Necessary

In addition to prisoners meeting the above criteria:

An application must be considered on the basis that an in-cell computer is necessary for the purpose of this Instruction.
Necessary is not to be taken to mean desirable.

19 Under the guidelines in paragraph 1.2 of the Director's Instruction, the application must be made in writing to the General Manager and referred to a Review and Assessment Committee for recommendation to the General Manager. The General Manger must consult with the Director, Prison Services, before approving an application by a major offender. This will only happen after the application has been approved by the Local Review and Assessment Committee. The Panel must also endorse the application by a major offender for access to an in-cell computer by a major offender like Mr Coulston before final approval can be given.

20 Mr Coulston thus has no legal right to an in-cell computer,[1] nor is access to one a 'privilege' under the Act.[2]

The history of Mr Coulston's applications for an in-cell computer

21 Mr Coulston originally requested access to a personal computer in mid 2000. His application was approved. He purchased a computer which was delivered to his cell on 1 August 2000.

22 The computer was removed from his cell on 7 December 2004. This was because he had been sentenced to life imprisonment for serious violent crimes against women and an audit of his computer had revealed images of violence against women which were considered inappropriate.

23 On 20 January 2005, Mr Coulston pleaded guilty to a prison offence and his in-cell computer access was removed for a minimum period of 12 months.

24 On 23 January 2006, at the end of the 12 month ban, he applied to have his access restored.

25 It was in 2006 that the Panel was set up. As Mr Coulston had been classified as a major offender in that year, his application to have his computer back for use in his cell was considered by the Panel. It was declined. He made further application in August 2006 and subsequently made a number of additional requests. They were also refused and he was informed of the decision on 24 September 2007.

26 He made a further request on 4 March 2008 and, after telling a Prison Visitor on 29 October 2008 that he had heard nothing about the application, he was eventually informed by Mr Pickering, the Manager of the Major Offenders Unit, that his request had been declined on 13 February 2009. He asked for a letter of refusal.

27 On 16 June 2009, Mr Pickering suggested that Mr Coulston re-submit his application and include additional information. Mr Pickering provided Mr Coulston with a copy of the Director's Instruction. Mr Coulston made his further application on 29 June 2009.

28 On 22 September 2009, Ms Ryan, as the chair of the Panel, informed Mr Coulston that he would have to show that an in-cell computer was necessary.

29 On 2 October 2009, a new computer was delivered to the Hoya Unit where Mr Coulston was placed.

30 Mr Coulston obtained material listing the educational classes for which he was enrolled. They included four subjects in the Certificate of Information Technology course. Mr Marty Langenberg, the Manager of the Centre for Corrections Education, confirmed his enrolment in those subjects and stated that he needed access to his own computer to improve in computing subjects.

31 Mr Coulston submitted a revised application, dated 8 October 2009. In the application he alleged that he wrote 'numerous legal letters' and asserted that to draft them in the communal area was unsatisfactory and could be unsafe. He referred to his need to prepare 'legal papers,' including an affidavit and a VCAT submission. Mr Coulston submitted that he needed access to his own computer for his continuing education. He also stated that he needed such access for creative writing and his recreational needs. He submitted that he was being punished more than once for his initial offence and that he might have received a less severe disposition if the offence had occurred more recently.

32 On 15 October 2009, Mr Coulston was told that his application had been refused because of his December 2004 breach of the computer rules. Mr Coulston says that he requested reasons for the decision and had received none by 30 November 2009.

33 In his affidavit, Mr Money provides details of the Panel's determination. He was present when the Panel considered the application at its meeting on 12 October 2009. The Panel took into account the support for Mr Coulston's application from Gordon TAFE representatives and from Barwon Prison representatives, including its General Manager. Having ascertained that Mr Coulston had access to a computer within the Hoya unit, the Panel was, however, not satisfied that Mr Coulston had established that an in-cell computer was necessary for him.

34 Panel members expressed concern about Mr Coulston having been discovered with inappropriate images of violence against women, in the context of his serious violent crimes against women. The Panel determined that his application should not be granted, given his prior computer breach and it not being satisfied that he had met the criteria for access to an in-cell computer.

35 Mr Money states that he has been informed by Ms Pauline Schlensog, the Acting Project Manager at Barwon Prison, that Mr Coulston has daily access to the Hoya unit computer.

36 I note first that Mr Coulston's application has been processed. There is no evidence of any refusal to process any application by him which would warrant any injunctive relief of the type he claims, even if it were otherwise available.

37 Counsel for the defendants submits, generally, that, even if Mr Coulston might be said to have had a legitimate expectation of receiving procedural fairness at the hearing, there is no evidence that the Panel failed to accord it. Mr Money's affidavit discloses the Panel's reasoning processes and Mr Coulston was given the opportunity to make submissions to it. I agree.

38 Mr Coulston argues that the Panel took into account the irrelevant considerations of his limited access to prison computers and the failure of the Prison Centre Manager's supporting letter to state that his access to a computer in his cell was necessary for his courses.

39 In my opinion, Mr Coulston's access to a computer in the unit was clearly relevant to the Panel's decision. Further, I am not persuaded that the Panel would have erred if it had taken account of any absence of material to establish that the computer in his cell was necessary for Mr Coulston. The eligibility criteria in the Director's Instruction indicate the significance of such material or its absence.

40 Mr Coulston claims that the Panel failed to have regard to the relevant considerations of his present and desired future TAFE course enrolments and of his application having been made on the basis of three eligibility grounds in the defendant's policy. That claim is not made out and those matters would appear to have been considered on Mr Money's account of the process.

41 Mr Coulston asserts that the Panel's decision was made for the improper purposes of punishing him and in order to delay reconsideration of a new application until policy could be amended and to avoid possible media criticism of a grant of access. I agree with the defendants that there is no evidence to support this allegation.

42 Mr Coulston argues that the Court should also find that the Panel's decision was so unreasonable that no reasonable body would have arrived at it as:

• highly significant factors were not given proper weight;

• the decision could not reasonably be made on the information available;

• the decision was inconsistent with all other decisions of a like nature;

• the decision was inconsistent without any rational justification;

• supposed guidelines were applied against him and not against other comparable applicants, without any rational justification;

• more than 300 applications had been approved, despite meeting fewer eligibility criteria;

• the decision was improperly discriminatory against him; and

• it amounted to a blanket prohibition on him ever gaining approval for such access.

43 I disagree. Bearing in mind the contents of the Commissioner's Requirement and the Director's Instruction, I am not persuaded that the Panel acted otherwise than properly or that its decision was unreasonable as Mr Coulston alleges. The evidence does not substantiate his claims.

44 Counsel for the defendants submits that the evidence does not establish that Mr Coulston's right to have his welfare maintained is infringed in all the circumstances, as Mr Coulston goes on to contend. I agree (in so far as Mr Coulston's contention makes any relevant challenge to the Panel's decision).

45 Counsel for the defendants submits that there is no evidence to demonstrate the bias which Mr Coulston asserts. Mr Coulston responds that the Panel was obviously biased because he was the subject of a 12 month ban five years ago and the Director's Instruction now contemplates a three month ban.

46 The fact that other applications have been successful does not alone establish bias on the Panel's part. The Panel was concerned about the nature of the breach in the context of Mr Coulston's sentence for violent crimes against women. It considered whether he met the educational, legal and exceptional circumstances criteria in the Commissioner's Requirement and Director's Instruction 4.14. Having noted the support from educational and prison authorities, it nevertheless declined his request.

47 The facts that the term of any ban might now be shorter and that he has not had a computer in his cell since it was first removed do not establish bias either. I am not satisfied that the allegation has been made out.

48 The originating motion otherwise simply states a number of principles, as counsel for the defendants notes.

49 In all the circumstances, even if the Panel's decision is amenable to relief in the nature of certiorari, such relief should be refused. The decision should not be quashed.

50 Mr Coulston seeks an order for relief in the nature of mandamus on grounds which attack the decision itself and would rather appear to be aimed at obtaining relief in the nature of certiorari quashing the Panel's decision. I have treated the application as one for certiorari and mandamus in accordance with the defendants' submissions.

51 Mandamus is not available to compel the Panel to grant Mr Coulston's request for an in-cell computer, when the Panel has no duty to provide him with one and Mr Coulston does not have any corresponding right.

52 I note further that, even if (contrary to my view) Mr Coulston had established that the Panel constructively refused to carry out a duty to consider his request for a favourable exercise of its discretionary power because it 'misconceived [its] duty or, in the course of attempting to discharge it, [had] failed to comply with some requirement essential to its valid and effectual performance' or otherwise, relief in the nature of mandamus could not compel the outcome he desires.[3]

53 In so far as Mr Coulston seeks an order that the Panel reconsider his application, that relief should be refused. I have concluded that the Panel's decision should stand.

54 The application for a declaration appears to be an application for an order in the nature of mandamus. It is misconceived and must also fail.

[1] See Knight v Money [2009] VSC 242, [8] (Byrne J).

[2] See Rich v Secretary to the Department of Justice [2007] VSC 405.

[3] See Randall v Northcote Corporation [1910] HCA 25; (1910) 11 CLR 100, 105 (Griffiths CJ); Re Blakely; Ex parte Association of Architects of Australia [1950] HCA 40; (1950) 82 CLR 54, 83-4 (Williams J).

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