Emergency Management Days for Victorian Prisoners During COVID-19

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The article Emergency Management Days for Victorian Prisoners During COVID-19 is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.

Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.

Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.

PrisonThe era of COVID-19 is a particularly difficult time for people in custody in Victorian prisons. Additional restrictions currently in place for adult prisoners include:

  • When first remanded, all prisoners must spend 14 days in a protective quarantine unit;
  • There are additional management measures including quarantine protocols in place across all Victorian prisons;
  • Personal visits to adult correctional facilities have been suspended;
  • Property cannot be dropped off for prisoners by family and friends.

Prisoners are doing hard time.

For many, there may also be an even greater sense of vulnerability and anxiety in custody due to their age or pre-existing health conditions, and the fear of an outbreak of the virus in the prison population.

Prisoners and their family and friends alike have been keen to know whether the COVID-19 restrictions in place in the custodial setting will translate into a reduction in a prisoner’s ultimate sentence.

The Department of Justice and Community Safety has recently announced that Victorian prisoners will not have to specifically apply for Emergency Management Days when their time in custody has been significantly affected by the COVID 19 pandemic. This applies to both sentence and remand prisoners.

What is an Emergency Management Day

The principles relevant to the granting of Emergency Management Days (EMDs) are set out in Section 58E(1) of the Corrections Act 1986 and regulation 100 of the Corrections Regulations 2019. If granted, EMDs will reduce the length of a prisoner’s non-parole period, or if there is no non-parole period, it will reduce the length of the prisoner’s total sentence.

A prisoner can apply for EMDs when they have been of good behaviour and they have suffered disruption or deprivation in custody:

  • during an industrial dispute or emergency in prison; or
  • in circumstances of an unforeseen and special nature.

The number of emergency management days granted must not exceed:

(a) 4 for each day or part of a day on which the industrial dispute or emergency exists;
(b) Up to 14 in other circumstances of an unforeseen and special nature.

Usually, Prisoners must apply in writing for EMDs stating:

  • the number of EMDs sought; and
  • the reason(s) why it is believed that the EMDs should be granted.

The Correctional Services Commissioner makes the final determination of whether an application for EMDs is granted and the prisoner is advised of the decision in writing.

EMDs and COVID-19 restrictions

As it currently stands, prisoners will automatically be considered for EMDs if they have been of good behaviour and they have suffered disruption or deprivation in custody as a result of the COVID-19 pandemic. This means that prisoners do not need to specifically apply for EMDs. It includes prisoners who are essential workers such as billets and peer workers, and prisoners close to the end of their sentence.

Disruption or deprivation must relate to:

  • Restrictive regimes as a result of COVID-19;
  • Having out-of-cell time significantly restricted due to being placed in a protective quarantine unit.

Prisoners will not be automatically considered for EMDs for:

  • Normal order and security measures that can occur in a prison, such as lock-downs following an incident;
  • Standard security or searching procedures;
  • The suspension of personal visits;
  • For changes to the structured day.

What if the prisoner has not been of good behaviour?

If a prisoner has been involved in an incident and/or has not been of good behaviour, while they are not excluded from claiming EMDs due to the COVID-19 pandemic, they must make an application using the normal process. Poor behaviour does not include medical incidents, self-harm, injury or accidents.

If a prisoner has been excluded from automatic consideration for EMDs they will be notified in writing.

How many EMDs will be granted in relation to disruption and deprivation due to COVID 19?

The COVID-19 pandemic falls into the category of an ‘emergency’, which means that up to four days can be granted for one day served in custody. The Commissioner has determined however that during the COVID-19 pandemic, the number of EMDs granted will be close to the equivalent to the number of days of disruption or deprivation.

This means essentially one day off the non-parole period, or the total sentence if there is no non-parole period, for every one day of disruption or deprivation experienced by the prisoner due to COVID-19 restrictions.

The Commissioner has determined that this approach is:

  • in line with community expectations; and
  • consistent with the current level of disruption experienced in the broader community.

If EMDs are granted, the Sentence Calculation and Warrant Administration Unit will record the approval and the prisoner’s sentence will be reduced by the relevant number of days. The prisoner will be notified in writing.

Decisions about the granting of EMDs continue to be made on an individual basis.

Prisoners can of course still apply for EMDs for other reasons that are unrelated to the COVID-19 pandemic.
Date Published: 4 May 2020

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