Coronavirus jurisprudence: Criminal law.

This page summarises key criminal law developments, including bail and sentencing, due to the coronavirus (COVID-19) pandemic.

Impact of delays caused by the pandemic

The COVID-19 epidemic has led to the introduction of measures which cause significant delays within courts, and hence potentially lengthy periods of time on remand. Re Broes [2020] VSC 128, [36]. Lengthy delays resulting from the COVID-19 pandemic are not a new normal but are ‘due to an acute event never before seen in the world’ and there is no reason to think that the current delays will persist over time. Re Shea [2021] VSC 207, [58]-[59] quoting Re Raffoul [2020] VSCA 848, [84]-[90].

A delay in trial due to COVID-19 may establish exceptional circumstances, Re McCann [2020] VSC 138 [39]; Re Jiang [2021] VSC 148, [60], or compelling reasons, sufficient to justify a grant of bail. Re JK [2020] VSC 160, [18]-[21]; Re Guinane [2020] VSC 208, [31], [43]. This is especially so where the delay is likely to lead to the accused spending more time on remand than the sentence likely to be imposed if they were convicted. Re Broes [2020] VSC 128, [41]; Re Tong [2020] VSC 141, [34]; Thomas v Kitching [2020] VSC 206, [6], [92]. The possibility of judge-alone trials in Victoria does not alleviate the fact that unsatisfactory delays still exist as a result of the COVID-19 pandemic. Re Ashton [2020] VSC 231, [65]-[66]; Re Bochrinis [2020] VSC 411, [8]. However, the unacceptable risk an offender poses may be sufficient to deny a grant of bail even where a compelling reason has been demonstrated because of the inordinate delay likely to occur, due to the COVID-19 pandemic, before their matter will proceed to trial. Re Lowe [2020] VSC 584, [51]-[52]; DPP (Vic) v Walker (a pseudonym) [2020] VCC 447, [45]-[49], [52].

In the present circumstances of the pandemic, it is not just the likely delay but the uncertainty surrounding all criminal trials in Victoria that is to be considered. Re Assad [2020] VSC 561, [110]. Courts and practitioners must not assume that the current health crisis will in all cases demonstrate exceptional circumstances. It is simply one of the surrounding circumstances that bail decision makers must take into account. Re Tong [2020] VSC 141, [33]; Re El-Refei (No 2) [2020] VSC 164, [17]-[21], [24]; Lynch v DPP (Qld) (No 2) [2020] QSC 64, [35]; Re Sepehrnia [2020] VSC 247, [58]. It also cannot be assumed the pandemic will cause a significantly lengthy delay; some evidence must support that contention as well as any submission that onerous restrictions on remand will continue at their present high levels throughout the period of delay. DPP (Cth) v Lee [2020] VSC 275, [93]-[99]; Lillyman v The Queen [2020] SASC 55 [14]-[17]. 

Other impacts of the pandemic

Apart from delay, the pandemic may impact a bail application in two ways: firstly, correctional facilities are currently not permitting visitors, leading to greater isolation for those on remand. Specifically, exceptional circumstances may be found in the increased burden remand restrictions will have on an Aboriginal offender who is both isolated from his family during a period of grieving, a significant process for his community, and the increased danger to him as a person at risk of contracting the virus. Re Kennedy [2020] VSC 187, [6]-[7]; Thomas v Kitching [2020] VSC 206, [70]-[71]. This ground is even more compelling when several charged offences would not warrant imprisonment and the respondent concedes that a non-custodial sentence is the likely disposition. Thomas v Kitching [2020] VSC 206, [92]. But while limitations on visits to prisons will impact an accused’s ability to prepare their defence, they are not, given current exceptions for professional visits, a barrier to the preparation of an effective defence. Re Ashton [2020] VSC 231, [61]-[62].

The second impact of the pandemic is the way it has impeded education and rehabilitation opportunities for an accused on remand. Re JK [2020] VSC 160, [19]-[26] Re JB  [2020] VSC 184, [40], [51]; Thomas v Kitching [2020] VSC 206, [5], [92]; Re JF [2020] VSC 250

Further application or application pending appeal

In the ACT, when assessing whether COVID-19 has led to changed circumstances for the purpose of a subsequent application for bail, the court will look at the impact of the virus on the accused. This might include whether their trial will be delayed, whether they are more likely to contract the virus while in prison, and whether the remand experience has been harsher due to the impact of COVID-19, such as by limiting the accused’s ability to receive visitors. R v Stott (No 2) [2020] ACTSC 62.  In Queensland, when determining whether to grant bail pending appeal, a court will consider whether the virus has actually been demonstrated to exist within correctional facilities as well as any measures taken by Corrective Services to prevent transmission within the prison population. Re Young [2020] QSC 75Re Morant [2020] QSC 79. However, Victoria has accepted that evidence of significant unexpected delays caused by the pandemic may qualify as a new fact or circumstance sufficient to permit the court to hear a further application for bail, although it does not necessarily follow that the application will be granted. R v El-Refei (No 2) [2020] VSC 164, [3]-[4].

Prison as a circumstance to consider

In considering whether an applicant has established exceptional circumstances, it is appropriate for bail decision makers to consider what would happen if COVID-19 spreads into the prison system. If that occurs, it is likely that prisons will be locked down in a way that makes time in custody very difficult. Re McCann [2020] VSC 138, [40]; Re Broes [2020] VSC 128, [39]. Prisons are not necessarily premises with a higher risk of COVID-19 than elsewhere, indeed they might be considered safer in some respects given their screening measures and limits on interaction. On the other hand, if a prisoner does contract COVID-19, the rapid infection of other prisoners is likely. Although measures may be put in place as a result of the virus that make imprisonment more burdensome than usual, some evidence of this must be produced. Lillyman v The Queen [2020] SASC 55 [14]-[17]. And as the consequences of pandemic are constantly changing the courts must assess matters as best they can at the time of an application. Re Ashton [2020] VSC 231, [63].

Agencies responsible for the movements of prisoners for bail and other hearings should be mindful that errors resulting in appearances which should have been conducted via video-link have significant follow on effects for prisoners who are already experiencing considerable hardship due to existing emergency management conditions. Re MM [2020] VSC 691, [107]-[110].

Conditions

The Bail Act 1977 (Vic) requires a court to consider all other options before remanding a child in custody, and granting bail with strict conditions is an acceptable alternative to leaving them in custody for an unknown period of time during a pandemic. Re JK [2020] VSC 160, [21], [33]. But that requirement does not guarantee a grant of bail, even in present circumstances. Re KN (No 2) [2020] VSC 490, [76], [86].

A bail condition requiring the accused to remain at a nominated residence may be likened to the “self-isolation” currently being practiced by citizens across Australia. Rakielbakhour v The Queen [2020] NSWSC 323, [20].

Compliance with the directions of public health officials in respect of COVID-19 may be made a condition of bail. Re Busari [2020] VSC 572, [61(j)].

Miscellaneous

Allowing for the different legislative frameworks, the observations of Lasry J in Re Broes [2020] VSC 128 are relevant to the considerations that arise under the New South Wales Bail Act, and the factual issues arising from the COVID-19 pandemic will be relevant to various factors under that Act. Rakielbakhour v The Queen [2020] NSWSC 323, [15]-[19].

Family hardship may establish exceptional circumstances justifying a grant of bail, and the impact of COVID-19 on the family is also relevant to that determination. Watson v The Queen [2020] ACTCA 16.

Failing to attend a bail hearing because of restrictions imposed by the Magistrates’ Court in response to COVID-19 pandemic is a reasonable excuse. Re Kennedy [2020] VSC 187, [2]-[4].

COVID-19 travel restrictions will make it more difficult, but not impossible, for an accused released on bail to abscond interstate, and it is still possible for them to abscond within the releasing state or territory. R v Petherick [2020] NTSC 17, [33].

The intention of Parliament in introducing s 365 of the Criminal Procedure Act 1986 (NSW) as part of the emergency measures legislation was to make it easier for a court to make an order for a trial to be conducted by judge alone if among other factors the court considers that it is in the interests of justice to do so. R v BD (No 1) [2020] NSWDC 150, [17]; R v Johnson [2020] NSWDC 153, [9].

Assessing what is in the ‘interests of justice’ includes considering:

The logistical factors posed by having a trial proceed during lockdown are not relevant to the question of whether a judge alone trial would be in the interests of justice, they are case management issues. DPP (Vic) v Carlton (a pseudonym) [2020] VCC 1272, [42]-[45].

Even where the parties agree a trial by judge alone order should be made, it is still for the court to determine that it is in the interests of justice to do so. DPP (Vic) v Combo [2020] VCC 726, [8]; DPP (Vic) v Truong [2020] VCC 806, [6].

The fitness of an accused to stand trial is normally the province of a specially convened jury, but a suite of temporary measures enacted in response to the COVID-19 pandemic overrides aspects of that process and now vests the court with the powers previously given to the jury. R v Munze [2020] VSC 272, [22]-[27]. 

Similarly, by inserting Part 11 into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ‘Parliament evinced an intention that special hearings would continue to be conducted throughout the period of the emergency created by the pandemic if it were not possible to empanel a jury’. Carson (a pseudonym) v The Queen [2020] VSCA 202, [60]. This is so even in cases where it would ordinarily be preferable for a jury to consider the application of community standards. If Parliament had intended for any such offence to have been excluded it might simply have incorporated an exclusionary clause in the emergency legislation. Particularly if the offence is triable summarily, as this indicates Parliament has already concluded that a single judge is capable of appropriately applying community standards to determine whether a charge is proven. DPP v Mason (a pseudonym) [2021] VCC 163, [46]-[47].

Increased burden

The risk of contracting COVID-19 within prison may be a source of anxiety for an offender which makes prison more burdensome and may bear upon the length of the sentence, particularly the non-parole period to be fixed. This is especially significant for offenders who are older or otherwise at higher risk from COVID-19. R v Madex [2020] VSC 145, [51]; R v Kelso [2020] NSWDC 157, [45]; DPP (Vic) v Lang [2020] VCC 759, [113]-[119]. However, where an offender is characterised as being ‘on the cusp’ of imprisonment, the COVID-19 pandemic is not a reason for failing to impose such a sentence. Mendieta-Blanco v The Queen [2020] VSCA 265, [38]. Nor is there any requirement that a sentence be ‘significantly mitigated’ because of the impact of COVID-19. Manojlovic v The Queen [2020] NSWCCA 315, [270].

The fact that prisons have restricted visits in response to COVID-19 is also relevant to sentencing. DPP v Morey [2020] VCC 320, [85]; R v Kelso [2020] NSWDC 157, [46]. As are restrictions on a person’s capacity to be religiously observant, and the cancellation of some rehabilitation programs, the latter is particularly significant. R v Khoder (No 2) [2020] ACTSC 76, [12]. Restrictions requiring remand prisoners to be locked down every second day for 24 hours, and allowed between two and five hours out of cells on alternate days, amounts to an ‘additional hardship’ which may moderate a sentence. R v Biba [2021] VSC 327, [38].

The impact of COVID-19 is causing additional stress and concern for prisoners and their families. The extent to which that may be taken into account, if at all, is to be resolved on the facts of any individual case. Brown (aka Davis) v The Queen [2020] VSCA 60, [48]; Sazimanoska v The Queen [2020] VSCA 66, [48]; R v Hughes [2020] NSWDC 98, [133]-[136]. The increased burdens of imprisonment and the utilitarian value of a guilty plea during the COVID-19 pandemic may, depending on the circumstances, even justify a non-custodial disposition. DPP (Vic) v Wilson [2020] VCC 1177, [37]. But where the offending is very serious it may not loom large in the sentencing synthesis. DPP (Vic) v Chen [2020] VCC 385, [138]-[140]; R v Phan [2020] QSC 95.

There will always be some degree of uncertainty about what may occur in a custodial environment in the future. Evidence can be called at a plea hearing about restrictions that may be put into place due to the pandemic, including lockdowns and reduced access to family and friends. These matters may be being offset to some degree by deduction of emergency management days from a prisoner’s sentence and to a large extent these matters are within the purview of the executive. If there was an inability for the offender to have proper access to their legal practitioner, that would raise different considerations. Adjourning a plea hearing on the basis of an inability to foretell the course of future events would be futile. Guest v The Queen [2020] VSC 218, [58]-[59].

The adverse impact of the COVID-19 pandemic on the burden of imprisonment after an offender has been sentenced is not admissible to establish a stand-alone ground of appeal but may be taken into account in a resentencing exercise. Wyka v The Queen [2020] VSCA 104, [19], [160]-[162].

Greater mitigation

All other things being equal, a plea of guilty entered during the COVID-19 pandemic is worth greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence. Worboyes v The Queen [2021] VSCA 169, [39]; DPP (Vic) v Zafiratos [2020] VCC 377, [42]-[43], quoting DPP (Vic) v Bourke [2020] VSC 130, [32]. 

Opting for a judge alone trial may also call for greater mitigation. R v Ross (No 5) [2020] NSWDC 306, [33]-[37]. Similarly, electing to have a matter dealt with in the County Koori Court, which results in the accused having to endure a longer period as a remandee and eight days of quarantine in order to participate, is evidence of a commitment to rehabilitation and a factor to take into account in reducing sentence. DPP (Vic) v McCarty (a pseudonym) [2020] VCC 1741, [52].

Impact on principle

An offender of advanced age with poor respiratory health will suffer a level of anxiety, stress and fear at the potentially fatal consequences of being infected with COVID-19 in prison that a younger fitter person would not, and this may be a basis for an appellate court to exercise the residual discretion and not re-sentence the offender despite the clear inadequacy of the sentence below. RC v The Queen [2020] NSWCCA 76, [253]-[255]. Similarly, and according to usual sentencing principles, these factors will be taken into account when resentencing despite not existing at the time of sentence where the appellant has otherwise established the ground of manifest excess. Scott v The Queen [2020] NSWCCA 81, [164]; Wyka v The Queen [2020] VSCA 104, [163].

The contention that the subsequent emergence of COVID-19 somehow affects the principle of totality fundamentally misunderstands the nature of that principle; whether a sentence offends the principle of totality requires consideration of the overall circumstances and criminality at the time of sentencing, ‘there is no concept of a retrospective infringement of the totality principle’. WRT v Western Australia [2020] WASCA 68, [83].

Directions made under the Emergency Management Act 2005 (WA) closing the borders of Western Australia to all but exempt travellers and requiring them to quarantine upon entry are intended to eliminate community transmission of COVID-19. Given this purpose, the seriousness of any breach of the Directions is assessed by the extent to which the offender sough to avoid quarantine, the extent to which they complied with quarantine, whether they have exposed members of the community to COVID-19, and whether they have been or are likely to have been exposed to the virus. The state or territory from which they entered Western Australia is also relevant to the gravity of the offending. Vander Sanden v Johnson [2020] WASC 331, [21], [39]-[41]. An offender’s culpability is significantly aggravated, and the offending is at the upper end of seriousness, by their attempting to avoid quarantine, failing to disclose their location to police for eight days, and having entered the state by deception, from Victoria. It is not the most serious instance of the offending if exposure to the community is avoided, but the offender ultimately having tested negative is not a mitigatory factor because the Directions seek to avoid the risk of the virus being reintroduced into the state and are not aimed solely at people with the virus. Ibid [44]-[47].

The impact of COVID-19 on a business may also be relevant in assessing the amount of a fine to be imposed for OH&S offences. McAndrew v Simmons [2020] NSWDC 81, [62]-[73], [92]-[93]; R v Sapform [2020] NSWDC 86, [85]-[89]; Safe Work NSW v Wang [2020] NSWDC 260, [78].

The relevance of the COVID-19 pandemic to an appeal against sentence is different than it is to an application for bail. Borg v The Queen [2020] NSWCCA 67, [7]-[9] (McCallum JA)).