Prison terms reduced for members of “Criminal Motorcycle Gang” due to “extremely harsh” detention policies
Callanan v Attendee X [2013] QSC 340, Callanan v Attendee Y [2013] QSC 341, Callanan v Attendee Z [2013] QSC 342 (12 December 2013)
Summary
The Supreme Court of Queensland recently gave reduced sentences to three accused members of Queensland Criminal Motorcycle Gangs (CMGs) due to a detention policy the Court considered to be “extremely harsh”.
Pursuant to the recently introduced “Southern Queensland Correction Centre Detention Unit Management” policy (Policy), CMG Prisoners detained at the bikie only Woodford Prison are subject to stringent Restricted Management Regimes, which include extended periods of solitary confinement.
Facts
Three Queensland men accused of involvement with CMGs and who failed to take oath and give evidence at a Crime and Misconduct Commission enquiry into CMGs were recently sentenced in three separate contempt proceedings.
Two of the respondents, aged in their 20s (Attendees X and Y), had only minor criminal histories. The third, a man aged in his 30s (Attendee Z), had an extensive criminal history and had previously served time in prison.
In each proceeding, prison terms of between five and six months were sought by the presiding officer. While Justice Applegarth agreed in principle with the proposed sentences, the harsh treatment the men would be subject to as CMG prisoners meant that the sentences handed down were significantly reduced.
Decision
The conditions under which a person will serve a term of imprisonment are relevant matters to be taken into account on sentence, especially when those conditions are shown to be particularly oppressive. To this end, Justice Applegarth placed heavy reliance on the Policy, exhibited to an affidavit made by an Acting Deputy Commissioner of Queensland Corrective Services. The Policy applies to persons found to be “identified participants” in a criminal organisation, including members of CMGs, referred to as “CMG prisoners”.
The Policy details the management of CMG prisoners in accordance with a Restricted Management Regime, which includes:
- restrictions on prisoners’ “out of cell time” to a minimum of only two hours a day, equating to up to 22 hours per day in solitary confinement for the duration of their sentence;
- restrictions on visitors, including CMG members and family members, and restrictions on telephone calls;
- the wearing of a pink CMG prisoner uniform;
- no access to television in cells and no access to gymnasium facilities or ovals;
- restrictions on canteen expenditure and prisoner property; and
- increases in frequency of photographing prisoners, drug testing and pro-active cell searches.
The Court took particular issue with the solitary confinement aspect of the regime, referring to the negative health impacts of solitary confinement. In particular, the judgments make reference to key international instruments and statements, including:
A statement by the United Nations Human Rights Committee that:
solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1, of the Covenant.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ...
Article 10 of the ICCPR which states:
(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ...
(3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
Rule 32(1) of the UN Standard Minimum Rules, which provides that
punishment by close confinement ... shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.
The Istanbul Statement on the Use and Effects of Solitary Confinement, which reports that it has been:
“convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects”; and
“As a general principle solitary confinement should only be used in very exceptional cases, for as short a time as possible and only as a last resort.”
Justice Applegarth concluded it would be highly likely that the defendants would be subject to the restrictive Regime and be subject to 22 hours per day solitary confinement (subject only to exceptional circumstances). His Honour found that such harsh treatment must inform the sentence he imposed.
His Honour noted there was no precise formula to be used when reducing a prison term on the basis of the harsh manner of its implementation. However, his Honour considered that the terms of the Policy justified a substantial reduction.
Accordingly, Justice Applegarth ordered that in addition to time already spent in custody, Attendees X and Y serve a period of 28 days in prison and Attendee Z serve 42 days – considerably less than the 5–6 months that might otherwise have been appropriate.
Commentary
The wide-ranging reforms being pursued by the Newman Government target deemed members or associates of Criminal Motorcycle Gangs. The recent suite of “bikie laws” impact motorcyclists’ rights to freedom of association and the right to a fair hearing and subject them to mandatory sentences to be served in austere conditions.
In addition to potentially raising human rights concerns under the ICCPR, this decision confirms that harsh prison management policies directed at a specific category of prisoner will be factored in by the courts in determining an appropriate sentence for an individual offender.
The decisions are available online here:
http://archive.sclqld.org.au/qjudgment/2013/QSC13-340.pdf
http://archive.sclqld.org.au/qjudgment/2013/QSC13-341.pdf
http://www.queenslandreports.com.au/docs/db_keydecisions/QSC13-342.pdf
Ashlea Hawkins is a secondee lawyer at the Human Rights Law Centre.