Part 5Offences

Part 5—Offences Division 1—Powers of Visiting Tribunals 41—Powers of Visiting Tribunals (1) For the purposes of a hearing under this Division a Visiting Tribunal may— (a) by summons signed by the Visiting Tribunal, require the attendance before the Visiting Tribunal of any person whom the Visiting Tribunal thinks fit to call before it; or (b) by summons signed by the Visiting Tribunal, require the production of any books, papers or documents; or (c) inspect any books, papers or documents produced before it, retain them for such reasonable period as it thinks fit, and make copies of any of them, or of any of their contents; or (d) require any person to make an oath or affirmation that the person will answer truthfully all questions put by the Visiting Tribunal, or by any person appearing before the Visiting Tribunal, relevant to any matter being inquired into by the Visiting Tribunal (which oath or affirmation may be administered by the Visiting Tribunal); or (e) require any person appearing before the Visiting Tribunal (whether summoned to appear or not) to answer any relevant question put by the Visiting Tribunal or by any other person appearing before the Visiting Tribunal. (2) Subject to subsection (3), a person who— (a) having been duly served with a summons, fails, without reasonable excuse, to attend before the Visiting Tribunal, or to produce any books, papers or documents, as required by the summons; or (b) misbehaves before a Visiting Tribunal, wilfully insults a Visiting Tribunal or interrupts the proceedings of a Visiting Tribunal; or (c) refuses to be sworn, to affirm or to answer a relevant question when required to do so by a Visiting Tribunal, Maximum penalty: $7 500 or imprisonment for 3 months. (3) A person is not required to answer a question put pursuant to this section if the answer would tend to incriminate the person. 42—Immunity from liability of persons who constitute Visiting Tribunals No liability attaches to a person who constitutes a Visiting Tribunal for any act or omission by the Visiting Tribunal in good faith and in the exercise or purported exercise of powers, or the discharge or purported discharge of duties, under this Act. Division 2—Breaches of regulations 42A—Minor breach of prison regulations (1) Where the CE is satisfied that a prisoner has committed a breach of a regulation that is specified to be a regulation to which this section applies, the CE may give the prisoner notice in writing that— (a) sets out the date of the alleged offence and briefly states the facts on which the allegation is founded; and (b) identifies the particular regulation that is alleged to have been breached; and (c) specifies that the prisoner may elect to be charged with, and receive a formal hearing in relation to, the offence; and (d) specifies the punishment that the CE proposes to impose if the prisoner does not elect to be charged with the offence. (2) If the prisoner does not within 24 hours give notice in writing to the CE, or an officer or employee of the Department specified in the CE's notice, that the prisoner elects to be charged with the offence, the CE may, without affording further opportunity for persons— (a) to hear or view evidence; or (b) to call, examine or cross-examine witnesses; or (c) to make submissions on the alleged breach or penalty, impose on the prisoner one or both of the following penalties: (d) forfeiture of any specified amenities or privileges for a specified period not exceeding 10 days; or (e) exclusion from any work that is performed in association with other prisoners for a specified period not exceeding 10 days. 43—CE may deal with breach of prison regulations (1) Where it is alleged that a prisoner has committed a breach of the regulations, the CE may, within the prescribed time, charge the prisoner with the offence, and conduct an inquiry into the allegation, in the prescribed manner. (2) If, after conducting an inquiry under subsection (1), the CE is satisfied beyond reasonable doubt that the allegation has been proved, the CE may impose on the prisoner any one or more of the following penalties: (a) forfeiture to the Crown of a sum, not exceeding the amount prescribed for the purposes of this paragraph, payable out of any money held by the CE on behalf of the prisoner, or any allowance to be paid to the prisoner under this Act; or (b) forfeiture of any specified amenities or privileges for a specified period not exceeding 35 days; or (c) exclusion from any work that is performed in association with other prisoners for a specified period not exceeding 21 days, or may reprimand and caution the prisoner. (3) If, after conducting an inquiry under subsection (1), the CE is not satisfied beyond reasonable doubt that the allegation has been proved, the CE must dismiss the charge. 44—CE may refer matter to Visiting Tribunal (1) The CE may, at any time before imposing a penalty on a prisoner in respect of an alleged breach of the regulations, refer the matter to a Visiting Tribunal for hearing and determination. (2) The Visiting Tribunal may, on hearing any matter referred to it under subsection (1) and on being satisfied beyond reasonable doubt that the allegation against the prisoner is proved, impose on the prisoner any one or more of the following penalties: (c) forfeiture to the Crown of a sum, not exceeding the amount prescribed for the purposes of this paragraph, payable out of any money held by the CE on behalf of the prisoner, or any allowance to be paid to the prisoner under this Act; or (d) forfeiture of any specified amenities or privileges for a specified period not exceeding 2 months; or (e) exclusion from any work that is performed in association with other prisoners for a specified period not exceeding 28 days, or it may reprimand and caution the prisoner. (4) Where a prisoner causes any loss of or damage to property as a result of a breach of the regulations, the Visiting Tribunal may, whether or not it imposes a penalty in respect of the breach, direct that the prisoner pay to the owner of the property as compensation for the loss or damage such sum, not exceeding an amount prescribed for the purposes of this subsection, as the Visiting Tribunal thinks fit, payable out of any money held by the CE on behalf of the prisoner, or any allowance to be paid to the prisoner under this Act. (5) If, after hearing a matter referred to it under subsection (1), the Visiting Tribunal is not satisfied beyond reasonable doubt that the allegation against the prisoner is proved, it must dismiss the charge. 45—Procedure at inquiry In any proceedings under this Division for an offence against the regulations, the following provisions apply: (a) the CE or Visiting Tribunal— (i) must afford the prisoner the opportunity of hearing or viewing all the evidence in support of the charge; and (ii) must afford the prisoner and the CE, or any officer or employee of the Department authorised by the CE for the purpose, reasonable opportunities to make submissions in relation to the charge and to call, examine or cross-examine witnesses; and (iii) must permit the CE or authorised officer or employee to make submissions as to the penalty to be imposed; and (iv) must permit the prisoner to hear any submissions made, and to make submissions, as to the penalty to be imposed; (b) if the prisoner refuses to attend at the hearing of the proceedings, the CE or Visiting Tribunal may hear and determine the proceedings in the prisoner's absence; (ba) the prisoner is not entitled to be represented in the proceedings by a legal practitioner; (c) the CE or Visiting Tribunal is not, subject to this Act, bound by legal forms or technicalities or the rules of evidence, but may inform himself, herself or itself, in such manner as he, she or it thinks fit; (d) where more than one penalty of forfeiture of amenities or privileges or exclusion from work is imposed for an offence, or for a number of offences arising out of the one incident, those penalties cannot be made consecutive one on the other; (e) no conviction may be recorded against a prisoner who is found guilty of a breach of the regulations. 46—Appeals against penalty imposed by CE (1) A prisoner may appeal to a Visiting Tribunal against any penalty imposed on the prisoner by the CE. (2) An appeal under this section must be instituted in the prescribed manner. (3) On the institution of an appeal under this section the penalty appealed against is suspended. (4) On determining an appeal under this section the Visiting Tribunal may— (a) affirm the penalty; or (b) increase, decrease or otherwise vary the penalty, or revoke it and substitute any other penalty that could have been imposed in the first instance by the CE. (5) No appeal lies against an order of a Visiting Tribunal made on an appeal under this section. 47—Appeals against orders of Visiting Tribunals (1) A prisoner may appeal against an order of a Visiting Tribunal made in any proceedings against the prisoner under this Division on the ground that the proceedings were not conducted in accordance with the provisions of this Act. (1a) An appeal under this section lies— (a) if the Visiting Tribunal is constituted of a magistrate—to the District Court; (b) in any other case—to the Magistrates Court. (2) An appeal under this section must be instituted in the prescribed manner. (2a) The notice of appeal must specify the grounds on which the appeal is made. (3) On the institution of an appeal under this section, the order appealed against is suspended. (4) On any appeal under this section the court may— (a) dismiss the appeal; or (b) quash the order of the Visiting Tribunal; or (c) quash the order of the Visiting Tribunal and make any order that the court thinks should have been made by the Visiting Tribunal in the first instance. (5) No appeal lies against a decision of a court on an appeal under this section. 48—Summary Procedure Act does not apply to proceedings under this Division The Summary Procedure Act 1921 does not apply to or in relation to any proceedings under this Division. Division 3—Criminal offences 49—Disrupting security or order (1) A prisoner must not take part in an unlawful assembly. Maximum penalty: Imprisonment for 3 years. (2) A prisoner must not take part in a riot or mutiny. (a) if, during the riot or mutiny, the prisoner wilfully and unlawfully damages or destroys, or attempts to damage or destroy, property that is part of a correctional institution and the security of the correctional institution is endangered by the act—imprisonment for 15 years; or (b) if, during the riot or mutiny, the prisoner— (i) demands something be done or not be done with threats of injury or detriment to any person or property; or (ii) escapes or attempts to escape from lawful custody, or helps another prisoner to escape or attempt to escape from lawful custody, imprisonment for 10 years; or (c) if, during the riot or mutiny, the prisoner wilfully and unlawfully damages or destroys, or attempts to damage or destroy, any property—imprisonment for 7 years; or (d) in any other case—imprisonment for 4 years. mutiny means 3 or more prisoners collectively challenging authority under this Act, with intent to subvert the authority, if the security of the correctional institution is endangered; riot means an unlawful assembly that has begun to act in so tumultuous a way as to disturb the peace; unlawful assembly means 3 or more prisoners— (a) assembled with intent to carry out a common purpose and there are reasonable grounds to believe the prisoners will— (i) tumultuously disturb the peace; or (ii) provoke other prisoners to tumultuously disturb the peace; or (b) who, having assembled with intent to carry out a common purpose, whether or not the assembly was lawful, conduct themselves in a way that there are reasonable grounds to believe the prisoners will— (i) tumultuously disturb the peace; or (ii) provoke other prisoners to tumultuously disturb the peace. 49A—Possession of certain items by prisoners A prisoner who has possession of— (a) a controlled drug (within the meaning of the Controlled Substances Act 1984); or (b) an item prescribed by the regulations for the purposes of this paragraph, in a correctional institution without the permission of the CE is guilty of an offence. Maximum penalty: Imprisonment for 5 years. Division 4—Prisoners at large 50—Effect of prisoner being at large (3) A prisoner is not, while unlawfully at large, serving his or her sentence of imprisonment. 50A—Prisoner must comply with conditions to which temporary leave of absence is subject (1) A prisoner who has been granted leave of absence from a correctional institution by the CE pursuant to this Act and who contravenes or fails to comply with a condition to which the leave is subject is guilty of an offence. Maximum penalty: Imprisonment for 1 year. (2) A term of imprisonment to which a prisoner is sentenced for an offence against this section is cumulative on any other imprisonment that the prisoner is liable to serve. 51—Offences by persons other than prisoners (1) A person who— (a) communicates with a prisoner in a manner prohibited by the regulations; or (b) delivers to a prisoner, or introduces into, or has possession of in, a correctional institution without the permission of the CE, any item prohibited by the regulations; or (c) loiters outside a correctional institution for any unlawful purpose, (a) in the case of an offence against paragraph (b) of this subsection where the prohibited item is a controlled drug (within the meaning of the Controlled Substances Act 1984)—imprisonment for 10 years; (ab) in the case of an offence against paragraph (b) of this subsection where the prohibited item is an item of a kind prescribed by the regulations for the purposes of this paragraph—imprisonment for 5 years; (b) in any other case—imprisonment for 6 months. (2) A person who, without the permission of the CE or without lawful excuse, has possession of a controlled drug (within the meaning of the Controlled Substances Act 1984) in a correctional institution buffer zone is guilty of an offence. Maximum penalty: Imprisonment for 10 years. (3) A person who, without the permission of the CE or without lawful excuse, has possession of a prohibited item of a kind prescribed by the regulations for the purposes of this subsection in a correctional institution buffer zone is guilty of an offence. Maximum penalty: Imprisonment for 5 years. correctional institution buffer zone—see subsection (5). (5) The Minister may, by notice in the Gazette, declare an area surrounding the boundary of a correctional institution to be the correctional institution buffer zone for the correctional institution. (6) The Minister may, by notice in the Gazette, revoke or vary a declaration under subsection (5). 52—Power of arrest (1) An officer or employee of the Department may, without warrant, apprehend— (a) any person who the officer or employee suspects on reasonable grounds of being an escaped prisoner or a prisoner otherwise unlawfully at large; or (b) any person who the officer or employee suspects on reasonable grounds of having assisted or being about to assist a prisoner in an escape or attempted escape or of having removed or attempted to remove, or being about to remove, a prisoner from custody. (1a) An officer or employee of the Department or a police officer may, without warrant, apprehend a person— (a) who is subject to an order of a court or a warrant of commitment authorising their detention in custody; and (b) who the officer or employee of the Department or police officer (as the case requires) suspects on reasonable grounds has been released from custody in error. (2) An officer or employee of the Department or a police officer (as the case requires) who has apprehended a person pursuant to subsection (1) or (1a) must— (a) in relation to a prisoner unlawfully at large or a person apprehended in the circumstances referred to in subsection (1a), return the prisoner forthwith to a correctional institution; and (b) in relation to any other person, take the person forthwith to the nearest police station.