Tuesday, March 29, 2005


NSW Legislative Council Hansard (Proof) Proof, NSW Legislative Council Hansard, 23 March 2005, COMMISSIONER OF CORRECTIVE SERVICES AND MR MIDDLETON Page: 59

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.04 p.m.]: Often I am disappointed by both the content and tone of questions and answers in this House, and the response I received to a question I asked on Tuesday 22 February is no exception. I asked the Minister for Justice:

(1) In the case of Middleton v Commissioner of Corrective Services of New South Wales did Justice Dowd make orders that the Commissioner of Corrective Services and the Governor of Lithgow Correctional Centre reconsider their decision to deny the plaintiff access to appropriate computer facilities to continue the study of two engineering degrees?

(2) (a) Given that the plaintiff, Mr Middleton, was allowed access to a computer to do his studies while incarcerated in Queensland, does this reflect badly on your department? (b) How does this correspond with the commitment to rehabilitation of prisoners?

The Minister responded:

(1) The orders of the Supreme Court are a matter of public record. The member is referred to them.

(2) (a) The implication in the question is rejected.

(b) The Department of Corrective Services is committed to the rehabilitation of offenders. The Department considers that while tertiary studies may assist inmates to obtain gainful employment upon release, it is of primary importance for inmates to address the causes of the offending behaviour. Mr Middleton is a maximum security inmate who has been convicted of a number of serious charges including armed robbery, and is awaiting sentence. When he has addressed the causes of his offending behaviour and achieved minimum security classification, consideration may be given to allowing him to have access to a computer in his cell.

I have taken advice from Teena Balgi, Mr Middleton's solicitor from Kingsford Legal Centre, which was very enlightening. That advice was as follows:

The Minister's response states that Mr Middleton may get access to a computer in his cell when he has:

1. addressed the causes of his offending behaviour; and 2. achieved a minimum security classification.

Has Mr Middleton addressed the causes of his offending behaviour? In his response the Minister focuses on the "primary importance for inmates to address the causes of their offending behaviour". Mr Middleton has attended all the courses available to him in order to address the causes of his offending behaviour, including dealing with conflict, workplace/team effectiveness, interpersonal communication, anger management, and cognitive skills. The only course that he has not attended is the violent offenders therapeutic program, and this is because an assessment of Mr Middleton determined that there were other prisoners in greater need of this particular course. As a result, Mr Middleton has done everything within his power to address the causes of his offending behaviour.

Further, Mr Middleton is also trying to rehabilitate himself by engaging in two degree courses, mechanical engineering and information systems, in which he has achieved a high distinction mark in a number of units. There is widespread support for using tertiary education as a rehabilitative tool. In the 2002 decision of Middleton v Commissioner of Corrective Services of New South Wales, Justice Dowd discussed the role of education in rehabilitation and stated that "it is hard to imagine a better rehabilitation tool than the gaining of tertiary qualifications of a sophisticated nature".

The Minister is a strong proponent of using education programs as part of the rehabilitation process for prisoners. In the Parliament on 18 September 2003 he recognised the value that education programs could play in rehabilitating an offender. He said:

It is well-known that completion of educational programs can have a key role in reducing reoffending.

Further, in the Parliament on 21 October 2004 the Minister discussed how education programs could improve a prisoner's chances of procuring gainful employment upon re-entering society. He said:

I am sure honourable members would be aware that employment is of essential assistance to inmates avoiding the perils of recidivism once back in the community.

Despite this apparent commitment, however, the New South Wales prison population has a rate of engagement in higher education of only 1.3 per cent. This figure is not only lower than the national average of 1.8 per cent but also significantly lower than the highest rate of 3.1 per cent, which is recorded by Queensland. Queensland has the lowest prison recidivism rate, at 27.7 per cent, whereas New South Wales has the second highest rate, at 44.7 per cent. Those figures come from the Department of Corrective Services 2003-04 annual report.

By undertaking tertiary courses in mechanical engineering and information systems, Mr Middleton is trying his best to rehabilitate himself and to become a productive member of society upon his release. This is admirable, considering that previously Mr Middleton had only progressed his education to year 10 level.

However, Mr Middleton's efforts are being hampered by the decision of the New South Wales Department of Corrective Services to deny him access to a computer in his cell. This decision has caused Mr Middleton to fail subjects, and it is feared that it may ultimately force him to withdraw from both his courses.

What is the relevance of Mr Middleton's security classification? From the response of the Minister, it is clear that the decision to deny Mr Middleton access to a computer in his cell was based primarily on the fact that he does not have a minimum security classification. In the decision of Middleton v Commissioner of Corrective Services of New South Wales Justice Dowd found that the Department of Corrective Services policy, which states that laptop computers can only be purchased by minimum security prisoners, should not be applied as a blanket prohibition.

Inflexible application of the policy is an incorrect use of the power conferred on the commissioner and the governor by the Crimes (Administration of Sentences) Regulation 2001. Further, Justice Dowd reaffirmed the principle that the commissioner and the governor are required to consider all relevant material placed before them and that there should be "proper, genuine and realistic consideration of the merits of the case". Thus, the fact that Mr Middleton does not have a minimum security classification should not be used to deny him a computer in his cell.

Mr Middleton's dedication to his studies since 1998, level of achievement, proper use of a computer for study while incarcerated in Queensland, and genuine need for a computer to complete his studies are all factors that need to be given due consideration.

It would seem that the Minister's answer owes more to enforcing a hierarchy of privilege relating to security classifications than to a real assessment of what is in the prisoner's interest. Lest it be said that I have taken the prisoner's word for it, I must point out that Justice John Dowd looked at this issue and suggested that the decision be reviewed as the prisoner already had a computer in Queensland.

I am disappointed by the Minister's approach and answer. The Minister has also told me that he will remove more computers, even from minimum security prisoners. I hope that my family and the Minister's family are not damaged by a recidivist criminal who might have otherwise been rehabilitated. Proof, NSW Legislative Council Hansard, 23 March 2005, (article 53.

By Justice Action posted 29 March 05


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