The ACT government has shut down a man's request to waive the remaining six weeks of his prison sentence after he was violently bashed in an unprovoked assault while locked in his cell.
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Lawyers for the man, who spent a month in hospital after suffering extensive brain damage in the attack, say should he be returned to jail he is at significant risk of further serious injury, not least because he is now the complainant with respect to a prison assault.
The 42-year-old bashing victim was a first-time prisoner and weeks into a 15-month prison sentence for assault occasioning actual bodily harm. The sentence was to be suspended after three months.
The January 1 assault happened when the prisoners were locked in their cells during the staff lunch break and appeared to be a disagreement over "smokes".
Corrections officers responded to a call for help to find the victim's face bloodied and the cell sticky with bloodstains and clumps of hair. The attack left the victim with extensive brain damage and post-traumatic stress disorder, and was the subject of a critical incident report by the Inspector-General of Corrective Services in June.
The man's alleged attacker was a 20-year-old remandee with a history of mental health issues and a record of serious and violent offences which began with youth detention. The remandee has been charged with intentionally inflicting grievous bodily harm over the incident.
The prison watchdog's report noted that while both detainees were correctly classified as medium security, the decision to put the pair together was "not properly documented with regard to a considered risk assessment". There is an exception to the need to document risks when the decision is made on the basis of "available bed space". The report recommended that such an assessment take place for every accommodation decision.
Overcrowding has been a near-constant issue at the prison since it began taking inmates in 2009, despite an expansion in 2016, with two detainees now crammed into nine-square-metre cells designed for one, and remandees routinely bunking with sentenced prisoners, a situation contrary to the ACT's human rights laws.
A record 507 prisoners were locked up at Alexander Maconochie Centre in June last year, four inmates shy of capacity.
The man's lawyers wrote to the ACT government in June asking that the rest of his sentence be remitted, given the physical and psychological harm he had suffered during his time in jail and his need for rehabilitation.
The government has the legal power to suspend or remit punishments, including fines or prison sentences.
"This appears to be a standout case for remission," solicitor Jacob Robertson told The Canberra Times.
"Should [the man] be returned to custody, he is at significant risk of serious injury as he is now the complainant with respect to a vicious prison assault which left him with extensive brain damage and developing post-traumatic stress disorder.
"Based on the medical material that we have, which has been provided to the Attorney-General, should [the man] receive another blow to the head whilst in custody, he is at risk of developing early dementia disease."
But the Attorney-General Gordon Ramsay has shut down the request, saying the usual reason for doing so was for good behaviour.
"In any event, it would be inappropriate to consider this matter before the court has dealt with the appeal against sentence," he said in the letter.
The man's lawyers say the appeal is futile because evidence of the assault and injuries cannot be put to the court. The appeal will be withdrawn or dismissed and the man will at that stage return to custody. The man had been granted bail unopposed by prosecutors while awaiting the appeal.
The Attorney-General Gordon Ramsay declined to respond to a request for comment.