Prison breached inmate’s right to protection: court

by John Reynolds, KT Journalism

Sydney’s Parklea Prison operators had a duty of care to protect a convicted sex offender from being attacked after they heard other prisoners were “organising a bashing”, the NSW Appeal Court has ruled.

Justice Richard White, with whom Justices Fabian Gleeson and Paul Brereton agreed, said the jail’s private sector operators’ argument they had no power to segregate inmate Caleb O’Connor from the rest of the prison population without his expressed approval was untenable.

It did not matter that Mr O’Connor had declined an offer to be moved, because he had not been properly informed about the nature of the proposed attack or the danger he was in.

The court heard Mr O’Connor had on 14 May 2012, been convicted by a jury of attempting to choke a victim with intent to intimidate and have sexual intercourse. He was remanded to the privately-run Parklea Prison to await sentencing.

On 17 May, an inmate informed the Parklea nursing manager he had heard other inmates planning to attack Mr O’Connor that afternoon. They had found out about his crimes and were going to assault him as punishment.

The manager informed her superiors, and Mr O’Connor was temporarily segregated and told of the planned attack. Management did not tell him why he was being targeted or that his offences were known by the general prison population.

Mr O’Connor “expressed surprise” he was being targeted, insisted he was safe and declined an offer to be transferred to another prison.

The court heard Mr O’Connor was not attacked that afternoon as planned, and was left in the general population. On 23 May, six days after the initial threat, three inmates entered his cell and bashed him in the head with a sandwich press.

Mr O’Connor sued Parklea’s management, The GEO Group Australia Pty Ltd, for negligence and breaching their duty of care by not properly protecting him from the assault.

At trial, GEO argued it had offered to move Mr O’Connor and he had declined. It had not breached its duty of care because it had done everything required of it to protect O’Connor and jail managers did not have the authority to forcibly segregate a prisoner. Only the NSW Prisons Commissioner had that power.

On 5 March 2019, after a liability-only trial, Justice Julia Lonergan rejected GEO’s argument and ruled Parklea management had not done everything possible to protect Mr O’Connor.

She found there was a “clear, foreseeable and not insignificant” risk to Mr O’Connor when other inmates learnt of his crimes. Management would have known assaults occurred in prisons and precautions needed to be taken.

Justice Lonergan said prison management had taken steps to prevent the bashing after first being informed, which showed they took the threats seriously.

But those steps were inadequate and lacked insight.

She rejected GEO’s argument that segregating Mr O’Connor against his will would be “totally unreasonable” and a breach of his human rights, or that prison managers were not authorised to move him.

“Not only is there express statutory power to do so and, significantly, no evidence at all that the person who could do it ever turned his mind to doing it here, but there was information that supported the validity of such steps,” she said.

“What should have been done, and was required as part of a reasonable response to the risk to [Mr O’Connor], was that he should have [been] segregated and then transferred.

“If those steps were taken, he would have avoided the bashing at Parklea the following week at the hands of the three assailants.”

GEO appealed against Justice Lonergan’s decision, arguing only the Prison Commissioner could order segregation or transfer under the NSW Crimes (Administration of Sentences) Act 1999; and prison management could assume that power only if Mr O’Connor’s interaction with other inmates “constituted or was likely to constitute a threat to good order and discipline within Parklea”.

GEO submitted that, because the only suggested threat was against a single inmate, Parklea’s good order and discipline was not threatened. Justice Lonergan had failed to provide reasons why she thought GEO was obliged to transfer Mr O’Connor, despite him expressing opposition to being moved.

On 24 December 2019, Justice White found no errors in Justice Lonergan’s management of the trial, her analysis or findings.

In particular, he said GEO’s argument that a threat to one inmate did not authorise prison management to transfer a prisoner was untenable.

“An assault by one or more inmates against another inmate is plainly contrary to good order and discipline within a prison,” Justice White said. “Those administering prisons are required to exercise reasonable care to prevent such assaults. “

In a concurring judgement, Justice Brereton said GEO’s policies required it to segregate Mr O’Connor for his protection. Prison staff had erred by only seeking to protect Mr O’Connor on the day management thought the assault would occur.

“Proceeding on the basis that the threat was diminished once the day had passed overlooked the obvious; namely that if its implementation was prevented by segregation on that day, it was likely to re-present at the next available opportunity,” he said.

Justice Brereton also criticised GEO’s reliance onMr O’Connor’s lack of concern about the threat in its decision not to segregate or transfer him.

“He would be the last to discover that others intended to assault him and his request not to be moved was obtained in circumstances where he was not informed of the most significant information; that the threat was associated with discovery of the nature of his offence.”

The GEO Group Australia Pty Ltd v O’Connor [2019] NSWCA 323, 24/12/19