3. Criminal

​D.  Sentencing

​i.  Legislation

Victoria:
Sentencing Act 1991 (Vic) amended by:
New South Wales:
Crimes (Administration of Sentences) Act 1999 (NSW) amended by:
Made under the Crimes (Administration of Sentences) Act 1999 (NSW):
Australian Capital Territory:
Crimes (Sentence Administration) Act 2005 (ACT) amended by:
Crimes (Sentencing) Act 2005 (ACT) amended by:
ii.  Case law

The extent to which the impact of COVID-19 may be taken into account, if at all, as part of the sentencing process must be resolved on the facts of any individual case: Brown v The Queen [2020] VSCA 60, [48], cited with approval in numerous cases, including Sazimanoska v The Queen [2020] VSCA 66, [48]; DPP v Luke [2020] VCC 358, [70]; DPP v Chen [2020] VCC 385, [139]; Director of Public Prosecutions v Kilpatrick [2020] VCC 379, [43]; R v Despotovski [2020] NSWDC 110, [39]; R v Greenaway [2020] NSWDC 97, [80]; R v Lorenzo Fiordelli [2020] NSWDC 154, [115]; R v Mostafa Dib [2020] NSWDC 145, [168]; DPP v Renata-Raimona [2020] VCC 434, [32]; R v Grimes [2020] NSWDC 172, [46]-[48]; R v Shearer [2020] ACTSC 100, [112]; DPP v Beattie [2020] VSC 229, [47]–[55] (Lasry J); DPP v Nixon [2020] VCC 553, [48]–[55]; DPP v Munn [2020] VSC 251, [154]–[155]; DPP v Nguyen [2020] VCC 584, [26]–[31].

However, no general sentencing principle has been developed in relation to the impact of COVID-19 on sentencing: R v Hughes [2020] NSWDC 98, [134]. It may be a factor in mitigation in a variety of ways.

Courts have held that a guilty plea -- even if not an early one —​ has “substantial” or “high” utilitarian value, where the relevant court’s procedures for responding to COVID-19 may have affected the practical management of a jury trial: Director of Public Prosecutions v Bourke [2020] VSC 130, [32]; DPP v Zafiratos [2020] VCC 377, [42]-[43]; DPP v Stanger [2020] vcc 735, [33]; DPP v Trask [2020] VCC 831, [21]. Similar considerations may mean that even a very late guilty plea — entered near the end of the prosecution case — may have value, even though limited weight can ultimately be given to its utility: Director of Public Prosecutions v Calf [2020] VCC 353, [35].
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COVID-19 may also be a factor in mitigation, because it increases the burden of imprisonment.  This may occur in a number of ways, for example, as a result of restrictions on prison visits, lockdowns, prisoner concern for their health and that of their loved ones, restrictions on counselling, rehabilitation programs or work opportunities, and impairment of prisoner capacity for religious observance. See, for example:
Many of those decisions we made in March and April 2020. As time went on, some judges (particularly in NSW) began to observe that it would be speculative to conclude that the most significant restrictions imposed on prisoners would remain in place for more than a temporary period. See, for example, Maxwell v R [2020] NSWCCA 94, [126] (Johnson J, with whom Adamson J and Bellew J agreed); DPP v Nguyen [2020] VCC 584, [26]–[31]; R v Barnett [2020] NSWDC 193, [71]. Nevertheless, in May 2020 courts continued to observe that, although the risk of contracting COVID-19 had been controlled and remained low, the consequent restrictions in place and their effects on prisoners were significant for sentencing purposes: see, for example, Director of Public Prosecutions v Kotiau [2020] VSC 245, [75]; R v Tangi (No 12) [2020] NSWSC 547, [57]–[58] (Rothman J).

It has been accepted that COVID-19 has given rise to "substantial and compelling circumstances that are exceptional and rare" for the purpose of s5(2H)(e) of the Sentencing Act 1991 (Vic): Director of Public Prosecutions v Jones [2020] VCC 549 at [96]–[97], [102].

​The nature and extent of the burden of imprisonment may shift as the pandemic evolves: see generally DPP v Smith [2020] VCC 480, [49]-[53]; DPP v Schmidt (a pseudonym) [2020] VCC 479, [39]-[44]; and our similar observations at the beginning of the case law discussion in the Bail section of this Chapter. The shifting risk through time of the threat of contracting COVID-19, and the fact that as at 1 May 2020 there had been no diagnosed case of the disease within the prison system, were considered in R v Beattie [2020] VSC 229, [53] and DPP v Munn [2020] VSC 251, [155].
 
Further, the burden will vary with the circumstances of the offender. The additional burden of imprisonment due to COVID-19 may be less significant in sentencing an offender who is likely to spend only a small proportion of the overall period of their imprisonment subject to the more onerous conditions, than it is in sentencing an offender who may be required to spend the entirety of their sentence in such conditions: R v Adbi & Anor [2020] VSC 225, [110]; R v Sharif [2020] VSC 226, [82]. The burden of restrictions on visitors, specifically, is likely to be less significant in the sentencing synthesis of an offender without family connections and for whom visitors are not an important part of their life in prison: R v Hawker [2020] ACTSC 79, [26]. Conversely, restrictions on visitors may have a significant impact on the mental health of an offender with immediate family members likely to otherwise visit them during their sentence: R v Carberry [2020] ACTSC 96, [25]. Further, the more onerous burden of imprisonment arising from the pandemic will not be permitted to overshadow other factors which might warrant imposition of a substantial term of imprisonment: R v Adbi & Anor [2020] VSC 225, [110]; R v Sharif [2020] VSC 226, [82].

In some cases, the sentencing court has proceeded on the basis of the increased risk of contracting COVID-19 in prisons and other closed environments: see, for example, Rakielbakhour v DPP [2020] NSWSC 323 at [14] (cited, apparently as authority for a proposition of fact, in R v Lorenzo Fiordelli [2020] NSWDC 15, [109]); and R v Phan [2020] QSC 95. That assessment appears, for the most part, to have been based on conclusions as to risk assessment in documents published by government bodies. However, that risk was discussed in some detail in the expert evidence before the Court in a civil case — Rowson v Department of Justice and Community Safety [2020] VSC 236 (at [27]-[45]) — albeit on an interlocutory injunction not requiring findings of fact. In that decision, Ginnane J appears to have concluded that if COVID-19 entered Port Phillip Prison it would “spread more rapidly than in the usual community because of the ‘congregational’ nature of a prison” (at [100]).

Statutory provisions allowing for early parole or release, if, or when, COVID-19 enters prisons have been considered by sentencing courts when determining the effect of COVID-19 on sentence: see, for example, R v Jones [2020] NSWDC 147, [33]; R v Aumash [2020] NSWDC 168, [53]; R v Sharp [2020] NSWDC 167, [55]; and R v Strickland [2020] NSWDC 164, [30]. Presumably, this is on the basis that an executive discretion to allow early release ameliorates what might otherwise be a mitigating factor — the risk of being trapped in a closed environment, and thereby more vulnerable to harm, should COVID-19 enter the prison.

Delay in sentencing is well-recognised as a relevant factor in mitigation.  Such delays may now be caused by COVID-19 and the responses to it: see, for example, R v Karam [2020] VCC 496, [75].

Additionally, the financial impact of COVID-19 may be a relevant consideration in a court’s assessment of an offender’s capacity to pay a fine, although it may not outweigh the need to impose a substantial fine for serious offending: McAndrew v Simmons [2020] NSWDC 81, [93]. It also may not justify a discount on a fine imposed on a corporate offender: R v Sapform Pty Ltd [2020] NSWDC 86, [88]-[89].

Social isolation requirements introduced in response to COVID-19 may not make it more likely that an offender would comply with the terms of a drug and alcohol treatment order under the Crimes (Sentencing) Act 2005 (ACT), at least where the offender is an inherently social person and is unlikely to feel compelled to stay at home (and thus away from access to drugs and poor influences): R v Kaihea (No 2) [2020] ACTSC 82, [15], [17]. Restrictions introduced in response to the pandemic may also limit the availability of treatment providers for the purposes of such an order, which may be a factor in a court’s consideration of whether to cancel such an order: R v Bell (No 2) [2020] ACTSC 83 [12]-[14].

​The weight to be given to COVID-19 considerations, including the weight to be given to relevant pre-existing illnesses suffered by an offender, must be assessed in light of all of the circumstances of the case: R v Hughes [2020] NSWDC 98, [135].

In the context of an offender of an age that places them in a higher risk category with respect to COVID-19, the offender’s age, combined with the offender’s concern about contracting COVID-19 and their inability to self-isolate in prison, may be “significant” considerations in the sentencing process: R v Madex [2020] VSC 145, [51]; see also DPP v Luke [2020] VCC 358, [77].

However, an appropriate balance must be maintained between the criminality of the offender and any health considerations: R v Hughes [2020] NSWDC 98, [135]. The burden of imprisonment in the context of COVID-19 may not be a particularly significant factor in sentencing for serious offending: DPP v Chen [2020] VCC 385, [140]. Further, the COVID-19 pandemic may not provide a sufficient reason for immediate release from custody or outweigh other sentencing considerations: Director of Public Prosecutions (Cth) v Politopoulos [2020] VCC 338, [77].

Courts have also stressed the importance of evidence being placed before a sentencing court of the impact of COVID-19 on an accused: Brown v The Queen [2020] VSCA 60, [48]; R v Hughes [2020] NSWDC 98, [135]-[136]; R v BR [2020] NSWDC 335, [146]-[148]; Director of Public Prosecutions (Cth) v Politopoulos [2020] VCC 338, [76]. In the absence of such evidence, a court may decline to consider COVID-19 in the sentencing synthesis: Brown v The Queen [2020] VSCA 60, [48].
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On an appeal against sentence, in the absence of error being identified, a court has no authority to re-sentence an offender on the basis of the likely impact on them of COVID-19: Borg v R [2020] NSWCCA 67, [7] (McCallum JA), [10] (Johnson J), [45]-[48] (Adamson J); WRT v The State of Western Australia [2020] WASCA 68, [76]–[86]. In those circumstances, any review of a sentence to take account of the pandemic is a matter for the Executive Government: Borg v R [2020] NSWCCA 67, [9] (McCallum JA), [10] (Johnson J), [46] (Adamson J); Wyka & Gardiner v The Queen [2020] VSCA 10, [19] (Croucher AJA, Niall JA agreeing). However, there are exceptions to the general rule against “fresh evidence” on a sentencing appeal, which might apply to evidence about the impact of COVID-19 on prisoners: see, e.g., Scott v R [2020] NSWCCA 81, [154]-[164] (although the issue was not determined in that case). In Victoria, the Court of Appeal has held that evidence of the impact of the pandemic on the operation of the prison system is not admissible as “fresh evidence”, where is does not “relate to events which have occurred since the sentence was imposed and demonstrate the true significance of facts in existence at the time of the sentence”: Barakat v Director of Public Prosecutions (Cth) [2020] VSCA 185, [50]-[51] (Niall JA, Priest and T Forrest JJA agreeing; emphasis added).  Similarly,  in Wyka & Gardiner v The Queen [2020] VSCA 104, the Court determined that, although the advent of the COVID-19 pandemic was a “rare and exceptional event”, evidence about its effects on added hardship of imprisonment was not admissible in support of a stand-alone ground of appeal (Croucher AJA at [157], Niall JA agreeing). See also WRT v The State of Western Australia [2020] WASCA 68, [76]–[86].  However, the impact of COVID-19 may be relevant to exercise of a court's residual discretion not to intervene on a Crown appeal against sentence: R v Stacker [2020] ACTCA 34, [211]-[215].