1. Overview

When sentencing federal offenders, courts have taken the impact of COVID-19 into account. There are no specific sentencing provisions dealing with the impact of a pandemic, instead courts have considered how the pandemic impacts upon the sentencing factors contained within s 16A of the Crimes Act 1914 (Cth) and under the general law.

1.1 When can the impact of COVID-19 be considered

Australian courts have emphasised that when and how the impacts of COVID-19 may be taken into account will depend on the particular facts and circumstances of the case.

In the state sentencing case of Brown v The Queen [2020] VSCA 60, the Victorian Court of Criminal Appeal stated at [48]:

With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case (emphasis added).

Brown was cited with approval in the federal sentencing case of DPP (Cth) v Politopoulos [2020] VCC 338, where Judge Cohen stated at [75] that “[t]he extent that it is to be taken into account will be a matter to be resolved on the particular facts of any individual case”. However, Judge Cohen was unwilling to accept an unsupported assertion about the offender’s increased likelihood of contracting COVID-19, stating at [76] that:

There is no present information available to me or as far as I know in the public domain, that there has yet been any person in the Victorian prison system who has been diagnosed with that virus. I cannot speculate on how much more at risk your health might be than any other prisoner on the information I have. It may even be that you are as well, if not better isolated from the virus in prison, in particular if there are no other people diagnosed with it in the prison where you are being held, but I do not make that finding either because, again, I have no information sufficient to make such a finding (emphasis added).

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1.2 Health risks posed by COVID-19

Sentencing courts have generally been reluctant to consider the direct health risk posed by COVID-19 to offenders, in circumstances where the risk of contracting the disease within a prison environment is not known. For example, in the drug possession case of R v Diez [2020] NSWDC 351, Weinstein DCJ stated at [46] that:

Specific evidence was tendered by Dr Nashed about Mr Diez’s specific risk factors. Due to his age and heart conditions, the offender is at a greater risk of a negative outcome if he were to contract COVID-19. So much is accepted. However, as Mr Jordan submitted, his risk of a negative outcome is the same in custody or out of custody. I accept this submission.

A similar approach was followed in R v Hughes [2020] NSWDC 98, where evidence that an offender suffered from diabetes and hypertension was insufficient to establish that they were at greater risk of poor health in custody than the general community. Mahoney DCJ stated at [136]–[136] that:

Thus, the weight given to the illnesses suffered by the offender and the weight given to considerations concerning the Covid-19 virus must be assessed in light of all of the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and his health considerations. There is no medical evidence of the extent of any illnesses suffered by the offender before me. Further, the Covid-19 pandemic is one that affects the whole of the population, including those in custody. … I am not satisfied that this offender is at any greater risk than any other person in custody from contracting the Covid-19 virus.

Whilst I accept that the existence of Covid-19 virus may be a relevant factor in sentencing, there is no evidence to establish that this offender is at greater risk than others in custody so as to amount to hardship … (emphasis added).

Similarly, in R v Nguyen [2020] NSWDC 367, Mahoney DCJ stated at [62] that: “[t]here is no medical evidence before me which places the offender at any greater risk to contract the coronavirus than any other person in the community”.

However, courts have been willing to consider the additional hardship to offenders arising out of their concern as to contracting COVID-19 in the prison environment.

In the child exploitation case of DPP v Cameron [2020] VCC 1506, medical evidence before the Court supported the offender’s increased physical vulnerability due to their immuno-suppressed state. Judge Tinney stated at [47]–[48] that:

Quite aside from these Verdins-driven increase in the burden of imprisonment, I also have your physical health concerns. I have a number of reports placed before me from your treaters. I do not doubt for one moment, and nor does the Commonwealth Director, that the physical conditions spoken of would make your time in custody more onerous for the reasons advanced in paragraphs 10 to 15 of the written outline. In addition, we have your immuno-suppressed state and the reports from Dr Cruickshank and Tim Elliot in that regard. You have that increased vulnerability physically…

I accept also that the COVID-19 virus and the response to it by those running the prisons would increase your prison burden to a degree. Prison is currently a more stressful environment. Prisoners cannot make a decision to self-isolate. Social distancing is not easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. You have some added vulnerability owing to your immuno-suppressed state (emphasis added).

In DPP v Irvine [2020] VCC 1563, a case involving the obtaining of a financial advantage by deception, the offender’s age and evidence of their chronic asthma and chronic obstructive pulmonary disease were taken into account in determining that prison would be more burdensome for the offender. Judge Gwynn stated at [55]–[56] that:

However, the risk of contracting COVID-19 within the prison system remains a source of anxiety for an offender and is capable of making prison more burdensome and is in your case relevant to sentence. It is especially significant for offenders who are older or otherwise at a higher risk of COVID-19 and I accept that this is your situation.

The COVID-19 pandemic has not reached its conclusion. I am mindful that the experience of serving a custodial sentence will be more onerous at this time than would otherwise be the general experience because, firstly, the change of the custodial experience as well as the associated anxiety. In your particular case it is reasonable to conclude that you who suffer from long-term respiratory illness, which is also described as unstable, will experience a higher level of stress, anxiety and even fear of the potentially fatal consequences should you be infected with COVID-19 than would otherwise be the case for a younger and healthier prisoner. You would also be anxious of the ability of the prison system to respond to any emergency given the quick response you have been fortunate to receive within your local area. These are factors to be taken into account in your sentencing (emphasis added).

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2. Sentencing Factors Relevant to COVID-19

When sentencing federal offenders during the pandemic, courts have looked at the individual circumstances of the case to determine how COVID-19 should be taken into account. The following section outlines the main sentencing factors relevant to that consideration.

2.1 Hardship to the Offender

Courts have considered the additional hardship offenders face due to the impact of COVID‑19. Specifically, courts have considered the additional burdens on offenders in correctional facilities from being unable to receive visits from family members, having to comply with strict social distancing rules (including through the reduced activities and programs available to them) and the additional stressors offenders face due to concerns about the virus.¹

In R v Yavuz (No 2) ACTSC 248, a case involving drug importation, Loukas-Karlsson J stated at [140]:

Courts around Australia have made a number of statements concerning COVID-19 and sentencing. It is accepted that suspension of visits make incarceration more onerous: Scott v The Queen [2020] NSWCCA 81 at [166]. While the AMC and the ACT more generally remain free of COVID-19 infections, it is acknowledged that, while the risk of infection remains and related restrictions are in place, the consequences for prisoners are significant: DPP v Kotiau [2020] VSC 245 at [75]. Absence of visits from family and friends is an additional hardship that must be synthesised along with other matters: R v Despotovski [2020] NSWDC 110. See also Brown (aka Davis) v The Queen [2020] VSCA 60 at [48].

In the attempted drug possession case of R v Diez [2020] NSWDC 351, the additional burdens faced by the offender were taken into account due to the additional hardship the offender would face when incarcerated. Weinstein DCJ stated at [45] that:

Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of COVID-19 amongst the prison population. These conditions include suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by the offender. However, the impact is difficult to quantify with any degree of specificity. I take the pandemic into account as a matter to synthesise on sentence.

A similar approach has been followed by Victorian courts, who emphasised that the reduction in family visits is particularly onerous. For example, in DPP v Panczuk [2020] VCC 863, Judge Cohen stated at [91]–[92] that:

Also, most programs and many activities have been suspended, and the time for prisoners to spend out of their cells has been considerably limited. That has depended in extent on the particular units in the various prisons. I assume that the studies that you were undertaking had to cease, and that you would have been prevented from attending Narcotics Anonymous meetings. I accept that all of the restrictions will have been making your experience of imprisonment for the last three months considerably more onerous than had those restrictions not been in place.

I said at the plea hearing that I would take into account in some moderation of your sentence the likely impact of all of those restrictions on you in making this portion of your time in prison more onerous, with particular emphasis on the lack of family visits (emphasis added).

The offender in the child exploitation case of DPP (Cth) v D’Angelo [2020] VCC 1097 was sentenced in July 2020, during a period of indefinite Stage 3 lockdown in Victoria. Judge Hogan stated at [32] that:

I have also taken into account that you have been taken into custody for the first time during the more onerous conditions of imprisonment which have been operative during the COVID‑19 pandemic. I remanded you in custody on 1 July 2020 and you have been compelled to endure 14 days of isolation, which I acknowledge would be very confronting for someone of your age entering a prison environment for the first time. Up until recently, at Ravenhall, where you have been on remand, the out of cell time permitted for prisoners was significantly reduced in order to facilitate social distancing. As from 21 July 2020, that prison, along with five other prisons, has had prisoners locked in their cells for 23 hours each day. This was implemented following the detection of an active case of COVID-19 in order to try to contain the spread of the virus. Whilst four of those prisons have now ended their respective lockdown regimes, Ravenhall Correctional Centre is one of two prisons which remains in lockdown indefinitely. This is a very onerous way for any person to serve a term of imprisonment. Also, all contact visits with family and friends outside the prison have been suspended. In addition, the availability of rehabilitative programs in custody is very significantly reduced and face-to-face programs are almost non-existent. From 8 July 2020, the government of Victoria imposed Stage 3 lockdown in the general community for a period of at least six weeks. At the time of imposing this sentence, there is no end in sight for the more onerous conditions of imprisonment associated with the pandemic. Doing the best I can, I have taken into account these onerous conditions in sentencing you and reiterate my concern about their impact upon you, an already psychologically vulnerable person.

In the child exploitation case of DPP v Beck [2020] VCC 1590, the offender’s end-stage kidney disease required lengthy dialysis sessions which, during the pandemic, would mean that ‘if [the offender] were to be imprisoned, the long hours [the offender] would be required to spend at hospital for dialysis would mean [the offender] would be subject to quarantine transfer’² and would be subject to ‘transfer quarantine for the foreseeable future’.³

Judge Hasssan stated at [66] that:

I am therefore satisfied on the evidence of Dr Gujadhur and the evidence on behalf of Corrections Victoria that a term of imprisonment would be a considerably greater burden on you than on a prisoner of robust health. Any sentence I impose must be heavily moderated because of your ill health and the extensive hours of dialysis you require, and all of this in the context of the COVID-19 pandemic and the restrictions imposed to control it in the prison system.

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2.1.1 Underlying mental health conditions

Hardship may be increased for offenders suffering from underlying mental health conditions. For example, in the child exploitation case of DPP v Bullock [2020] VCC 933, Judge Sexton referred at [45] to the “additional burdens due to the COVID-19 pandemic”, and continued:

In that regard, I accept that a term of imprisonment will be onerous for you. You have a psychological fragility which will heighten any anxieties attendant upon a jail term. … All prisoners entering the custodial setting are subject to a mandatory 14 day quarantine, resulting effectively in isolation in a cell for that period. Personal contact visits have been suspended, limiting access to familial supports. There are other restrictions on programs and work, meaning that custodial conditions at present are indeed onerous, and I have no doubt anxiety causing …

In the child exploitation case of DPP v McMillian [2020] VCC 1227, Judge Cannon stated at [40] that:

In sentencing you, I take into account your mental health in a general way, as it is not relied on to moderate any sentencing principles. However, I accept that any time in gaol served by you will be a good deal harsher because of your mental health issues and that there is a risk that your mental health might well deteriorate. Also, this would be your first time in gaol, and the COVID-19 restrictions will mean that you undergo a harsher form of imprisonment than would otherwise be the case. Your immediate family and your partner live in Queensland, so you will not receive any visits from them, although you have some support in Melbourne. You are a fairly young man of Aboriginal background on your father’s side such that you may well be especially at risk in terms of your health, although this is not clear in your particular case. You suffer from sleep apnoea, but I have been advised that the equipment or apparatus that you need to deal with this, is accessible in gaol. However, your sleep apnoea may well expose you to further susceptibility in respect of COVID-19. There is no direct evidence that this is true in your case. However, I allow for the fact that your experience of gaol will be further negatively impacted by your anxiety in respect of the prospect of contracting the illness in all of the circumstances (emphasis added).⁴

2.1.2 Assessing the length of the likely hardship

When sentencing offenders to a significant term of imprisonment, courts are required to consider how long an offender will face additional burdens due to the impact of COVID-19. While this is, in part, a speculative exercise, courts have been cautious about finding that the additional hardship will impact offenders long into their sentence. This approach was taken in the terrorism case of R v Ali [2020] VSC 316, Champion J took into account the hardship the offender faced. However in relation to the length to attribute the ongoing restrictions to over the 10-year head sentence imposed, Champion J stated at [208]:

It is submitted that the hardship already experienced, and the likelihood of future hardship over an extended period of time are relevant considerations in exercising my sentencing discretion. It is unknown how long the current restrictions in custody will remain, although speculative, given the nature of living in a group setting they may stay in place until a vaccination is discovered. I accept that for some time there will be uncertainty about a number of these matters, and that this may hinder the progress of your rehabilitation, and make the time spent in custody more onerous for the period that the possibility of infection remains current. However, I do not think that I should act on the basis that any additional burdens will last for the duration of your sentence (emphasis added).

In the money laundering case of Betka v The Queen [2020] NSWCCA 191, Fullerton J (Wilson and Ierace JJ agreeing) stated at [83] that:

In the calculation of each of the sentences of imprisonment, including in the case of Ghazaoui and Hawchar in the appointment of a reconnaissance release order under s 19AC of the Crimes Act (Cth) and in the case of Betka the appointment of a non-parole period under s 19AB, I take into account the negative impact of the COVID-19 pandemic on each of the applicants as prisoners serving sentences of imprisonment in the New South Wales correctional system. In doing so, I also acknowledge the measures taken by Corrective Services to avoid the risk of the virus entering Correctional centres. Although it is impossible to predict whether the restrictions which currently limit a prisoner’s access to family and friends will remain in place for the period during which each of the applicants will remain in custody before either being released under a reconnaissance release order in the case of Ghazaoui and Hawchar or being considered for release to parole in Betka’s case, I accept that during the balance of the sentence they are each to serve those restrictions are likely to be in place to some extent (emphasis added).

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2.2 Guilty Plea

Courts have considered that a plea of guilty has additional utilitarian value due to the impact of COVID-19. This is because of the additional burdens facing criminal courts, and the difficulties associated with running jury trials in compliance with physical distancing rules and court rules. In the drug possession case of R v Diez [2020] NSWDC 351, Weinstein DCJ stated at [37] that:

The offender pleaded guilty at a relatively late stage, the matter having been committed for trial on 25 September 2019 and listed for a 3-week trial on 27 July 2020. Albeit late, the Crown accepts that the offender’s plea indicates some willingness to facilitate the course of justice, and that he is also entitled to a reduced discount in light of its utilitarian value. The Crown agrees that in the current COVID-19 environment, and the offender’s right to a jury trial, this being a Commonwealth matter, the plea has additional utilitarian value (emphasis added).

In DPP v Lee [2020] VCC 1346, Judge Hassan stated at [58] that:

You have pleaded guilty to the charges on the indictment. It is accepted by the Crown that your plea is an early one. Your plea is of utilitarian value, in that it has saved the witnesses and the community the cost of a trial. Its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic (emphasis added).

In the child exploitation case of DPP (Cth) v D’Angelo [2020] VCC 1097, the offender’s guilty plea was found to have “significant utilitarian value” in light of the suspension of criminal trials due to the pandemic. Judge Hogan stated at [10] that:

Having been arrested on 10 December 2019, you indicated your intention to plead guilty to the charges at a committal mention on 29 April 2020. These are early pleas of guilty which have significant utilitarian value, particularly as criminal trials have been suspended from March 2020 due to the COVID‑19 pandemic. I accept that your pleas show a willingness to facilitate the course of justice and have saved the time and expense of a trial (emphasis added).⁵

In the child exploitation case of CDPP v Harper [2020] VCC 1786, Judge Riddell stated at [97] that:

In the context of Covid-19 pandemic and associated delays, your plea carries particular weight. In particular I take into account that your matter progressed to the indictable stream in a time frame when all jury trials were adjourned. It was open to you to take a course which would have seen you remain on bail for a considerable period of time. You are entitled to a discount in sentencing for the prompt resolution of your matter in those circumstances.

See further: Guilty Plea.

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2.3 Delay

Where the effects of COVID-19 have delayed the proceeding, sentencing courts have taken this delay into account when sentencing federal offenders.

For example, in DPP v Milla [2020] VCC 546, Judge Trapnell stated at [72]–[73] that:

Another very significant mitigating circumstance is the effect of delay in your case. There will always be some delay in prosecuting highly complex white-collar crime cases, but here there has been considerable systemic delay occasioned by the progress of the proceedings through the courts, my personal circumstances and the effects of the COVID-19 pandemic. The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.

As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):

Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself (emphasis added).

Similar statements were made by Judge Trapnell in R v Georgiou [2020] VCC 502 and R v Karam [2020] VCC 496.

1. See R v Poulakis [2020] ACTSC 247, [102] (social consequences of COVID-19 in prison an additional hardship attached to imprisonment); R v Omari [2021] ACTSC 18, [242] (social consequences of COVID-19 in prison an additional hardship attached to imprisonment); DPP v Cameron [2020] VCC 1506, [47]–[50] (fear of contracting COVID-19 and social consequences of COVID-19 in prison constituted increased custodial burden); DPP v Lee [2020] VCC 1346, [60] (custody more onerous by reason of lockdown); DPP v Dalton [2020] VCC 1504, [65]–[67] (requirement to isolate for 14 days, restrictions on visitors and education/rehabilitation programs, as well as heightened anxiety in prison during COVID-19 pandemic taken into account); DPP v Kijima [2020] VCC 1347, [65] (reduction in services and programs taken into account as making life in prison more difficult).[↩]
2. DPP v Beck [2020] VCC 1590, [62].[↩]
3. DPP v Beck [2020] VCC 1590, [65].[↩]
4. See also DPP v Jabal [2020] VCC 1222, [51]–[52]; DPP v Dalton [2020] VCC 1504, [68]; R v Khawaja [2020] NSWDC 718, [211]–[215].[↩]
5. See also DPP v Griscti [2020] VCC 1389, [27]; DPP v Stockton [2020] VCC 1755, [21]; DPP v Blackborrow [2021] VCC 207, [12].[↩]