A child rapist has lost a bid for his own cell in an over-capacity Brisbane prison.
Jason Mizner, who is serving a 19-year sentence for child sex offences, made a complaint of indirect discrimination against the State of Queensland (Corrective Services) and the Wolston Correctional Centre (WCC) Chief Superintendent in 2021, alleging breaches of the Anti-Discrimination Act 1991 (Qld) and the Human Rights Act 2019 (Qld) on the grounds of mental health impairment.
The Queensland Civil and Administrative Tribunal (QCAT) has dismissed the complaint. In a 33-page decision published on Thursday, Judicial Member Forrest and Senior Member Traves explained why Mizner did not satisfy the criteria to be placed on the “Do Not Double-Up” (DNDU) list at the Wacol facility.
In 2018, Mizner was sentenced to a total of 22 years’ imprisonment after pleading guilty to 65 sexual offences, including repeatedly raping his partner’s two-year-old daughter and filming the assaults, and possessing child exploitation material.
The 49-year-old has been in prison in Queensland since 2017 when he was deported to Australia from Thailand after serving 11 years in prison there for similar offences.
He was detained at Wacol firstly in Arthur Gorrie Correctional Centre, then Brisbane Correctional Centre, before being transferred to WCC in late 2018.
In his complaint, Mizner referred to Section 18 of the Corrective Services Act 2006 (Qld) (CSA) which states that “whenever practicable, each prisoner in a corrective services facility must be provided with his or her own room”.
The tribunal members described how the WCC – widely described as a “protection prison” for inmates required to be separated from the general prison population for their own safety – opened in 1999 to accommodate 600 prisoners in single cells, but rapid growth had led to double bunks replacing single beds, and the prison now housed 800 prisoners.
The members said Corrective Services gave evidence it hoped the situation might be alleviated when the new Lockyer Valley Correctional Centre started taking prisoners, which was expected to happen early next year.
“Whilst “doubling up” clearly offends that part of s 18 of the CSA that requires each prisoner to be provided with his own room, the State of Queensland, no doubt, in defence of the current circumstances at the WCC, relies on the caveat the legislature wrote in to the section conditioning this requirement on the practicability of same,” they said.
“If you have only six hundred cells in a prison that must accommodate more than that number of prisoners, and you do not have anywhere else to accommodate the excess prisoners, it could be said to be no longer practicable for each of the prisoners in that prison to have his own room.”
They pointed to evidence from the Chief Superintendent that “…due to prison overcrowding in WCC, most prisoners are accommodated in shared accommodation due to operational needs to account for the security and good management of WCC and for the safe custody and welfare of all prisoners”.
They said Mizner’s claims of discrimination stemmed from the application of the Custodial Operations Practice Direction (COPD) titled “Prisoner Accommodation Management – Cell Allocation”, and local allocation decision-making criteria.
Mizner had been given a single-occupancy cell on arrival at WCC before demand for accommodation led to need to double up in his unit block. Prisoners had been invited to nominate prisoners with whom they would be happy to share a cell, while the DNDU list was also being compiled, they said.
Mizner had applied many times to be placed on the DNDU list, which used assessment criteria including prior prison victimisation or violence, self-harm, known associations, escape risk, and physical and mental health.
The members said “practicability” under s 18 of the CSA had “caused the process to become one of deciding whether a prisoner should for some reason be excluded from being required to share a cell with another prisoner”.
Corrective Services accepted Mizner had an impairment in the form of post-traumatic stress disorder, and the members found the evidence supported a finding he also had borderline personality disorder, comorbid bipolar personality disorder, some degree of autism spectrum disorder and some type of acquired brain injury.
“His mental health impairments, we are satisfied, are attributable to an extraordinarily complex history of trauma experienced in his childhood, including much physical, sexual and emotional abuse, and in the many years that he was an inmate in the Thai prison system,” the members said.
However, they did not consider Mizner suffered serious disadvantage in having to comply with the prison’s terms, which he claimed exacerbated his psycho-social impairments and caused deterioration of his mental health.
He pointed to hypersensitivity to sleep disturbances, which he said led to panic attacks and extreme anger.
The members said there was no corroborative evidence from any of Mizner’s cellmates at WCC; psychological reports supported findings that “he was not presenting in a manner that was entirely consistent with what he was reporting”; and records of regular cell checks by WCC staff showed he had no issues with sharing.
They said they were satisfied, after visiting the WCC unit, that there would be little difference in the impact of noise and light whether Mizner was in a single or double-occupancy cell, and that earplugs were available to him.
“As we have observed, after considering all of the evidence, not just the evidence of the applicant himself, we are satisfied that the applicant has not suffered and does not suffer any serious disadvantage in complying with the respondents’ terms,” they said.
“Records demonstrate that he is frequently assessed and monitored, would be again before any proposed change in his circumstances, and if his impairments begin to cause him objectively observable difficulties of sufficient seriousness, particularly during any period of doubling up, we are satisfied that he could legitimately expect to be included on the DNDU list.”
In relation to the Human Rights Act, Mizner submitted that the decisions to place him in shared cell accommodation, and to assess him as ineligible for inclusion on the DNDU list, breached his right to: recognition and equality before the law (s 15); life (s 16); protection from torture and cruel, inhuman or degrading treatment (s 17); privacy and reputation (s 25), liberty and security of person (s 29); and humane treatment when deprived of liberty (s 30).
The members found the two decisions gave proper consideration to human rights, and that there had been no breach of any right.
Mizner will not be eligible for parole until 2032.
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