Coronavirus Jurisprudence Cases (190820)

CORONAVIRUS JURISPRUDENCE CASE DETAILS R v Madex [2020] VSC 145 The offender pleaded guilty to two charges: Conduct endangering life and possession of an unregistered general category handgun. The offending involved Madex accidentally shooting his daughter in the head, after they had both been drinking and his daughter expressed suicidal ideation. He was sentenced on the basis that he fired the gun to scare his daughter and dissuade her from self-harming. On the impact of COVID-19, Incerti J said at [51], [52], [61]: You are now 69 years old. An important and unprecedented factor which I take into account is the impact of COVID-19 and the risk that it poses to you, if you are sentenced to prison. Your age of 69 years places you in a higher risk category to other people. I am told that if you are not in custody, you would reside on a 60-acre rural property and could self-isolate. This is not an option whilst in prison. I am told that the possibility of contracting the virus weighs heavily on you and makes prison a more onerous prospect for you, than it does for someone younger. I am satisfied that your age, in combination with the risk of contracting COVID-19, is a significant factor and one that I have taken into consideration in determining your sentence. I do not consider that the lack of information about preventative measures which may be put in place by Corrections Victoria alters my view. Mr Madex, you can clearly achieve a more reliable and effective form of self-isolation in the community, particularly given your living arrangements, compared to being in prison. This is not mere speculation on my part. … In this case, given the unprecedented and unique circumstances due to COVID-19, coupled with the considerations that I have set out above, including the objective gravity of your offending and sentencing purposes, and in particular your age and the risk to you in not being able to properly self-isolate, I consider that a community correction order with custodial sentence is in the best interests of the community, and in your best interests. 1 CORONAVIRUS JURISPRUDENCE DPP v Morey [2020] VCC 320 The offender was being sentenced for two contact-based sexual offences against a child, along with using the internet to transmit or access indecent material. During the sentencing remarks, the judge explained: By submissions dated 23 March 2020 from Ms Murphy, who now represents you, I received further defence submissions that touch on the fact that the Coronavirus pandemic is touching all aspects of life in Australia. Ms Murphy referred to remarks made by Justice Lasry in the bail application of Broes [2020] VSC 128. Ms Murphy remarks that, whilst it is not binding on the court and concerned an application for bail, it was respectfully submitted that Justice Lasry's remarks provide a useful guidance. I do not quote those remarks but I refer to Lasry J’s remarks made at [39]. It was then submitted that you face, at least for the next several months, additional isolation due to the cessation of all personal visits, and restriction on travel from Western Australia to Victoria. The border has now been closed thereby preventing your family from travelling for visits, even if restrictions were lifted in relation to prison visits, and there is additional anxiety for you due to your concerns about your family including elderly grandparents who reside in Western Australia. Ms Murphy refers to the prospects of how conditions will be affected if there is an outbreak of COVID -19 within the prison system. Ms Murphy then submitted that whilst the situation is still evolving given the extraordinary circumstances, these are matters that the court can have regard to in imposing sentence, and the consideration will properly result in a mitigation of both the head sentence and non-parole period. I refer also to the observations of the Court of Appeal, Priest and Weinberg JJA in Brown, aka Davis v R [2020] VSCA 60 at [49]. Again I do not quote directly from that but I refer to the paragraph as a whole. In my view, I can take into account two things. The first is that although it had already been submitted that the prospect of visits was limited because your family lived in Perth, I can take into account the fact that you will receive no visits at least for the time being. Secondly, I can take into account that it will play on your mind the fact that family and loved ones are isolated from you and you face the prospect, as all people in Australia and indeed the global community do now, of worrying about the health and wellbeing and future of those who may be affected by the virus. 2 CORONAVIRUS JURISPRUDENCE Brown (aka Davis) v The Queen [2020] VSCA 60 The offender appealed sentences relating to cultivation and trafficking of cannabis on the basis of errors relating to a finding of prevalence and that the offending caused a fire which damaged the property where the cannabis was growing. In oral argument, counsel argued that the COVID-19 pandemic was relevant to resentencing, saying: It was contended that this Court should infer that prisoners and their families are suffering a high level of anxiety, perhaps somewhat akin to a Markovic type burden. It was submitted that this should give rise to a ‘palpable and discernible discount’ on both the head sentence, and the non-parole period, on a resentencing exercise. In response to this submission, the court 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. 3 CORONAVIRUS JURISPRUDENCE Sazimanoska v The Queen [2020] VSCA 66 The offender pleaded guilty to tracking a commercial quantity of cannabis, along with 7 co- offenders. She appealed on a number of grounds, including the impact of an anxiety disorder, delay and approach to sentencing a Category 2 offence, and that the sentence was manifestly excessive. As part of submissions, counsel argued that if error was otherwise established, the court should take the impact of COVID-19 into account in resentencing. The court reiterated its statement in Brown v The Queen that the impact of COVID-19 must be determined on a case-by-case basis, accepting that the situation is causing additional stress and concern for prisoners and their families. 4 CORONAVIRUS JURISPRUDENCE R v Hughes [2020] NSWDC 98 The offender pleaded guilty and fell to be sentenced to a Commonwealth offence of dishonestly obtaining by deception a financial advantage from the Australian Taxation Office and an attempt of the same charge. Two further fraud offences were to be taken into account on a schedule pursuant to s 16BA Crimes Act 1914 (Cth). Mahony SC DCJ considered Brown (aka Davis) v The Queen [2020] VSCA 60 which also dealt with the impact of COVID-19 on sentence, and highlighted that there is currently no general sentencing principle as to the impact of the pandemic on sentencing. His Honour stated at [133]-[136]: The Crown has made proper concessions as to the existence of the pandemic due to the Covid-19 virus and the fact that persons may be at increased risk if they suffer from chronic illness or are incarcerated in a gaol where Covid-19 is present. This court is not in a position to make an evidence-based assessment of the risk to this offender of contracting the virus in a correctional facility and whether that risk is greater than that of a member of the general public. I accept the Crown’s submission that the suspension of visits to gaols is designed to obviate an increased risk of transmission to the prison population, although that undoubtedly results in some increased hardship to those in prison. I am not satisfied on the balance of probabilities that incarceration would put the offender at any greater risk of contracting the virus than any member of the public, notwithstanding that he is a diabetic as submitted by the Crown. I accept, as did the Victorian Supreme Court in Brown (aka Davis) v R, supra, that the Covid- 19 pandemic is causing additional stress and concern for prisoners and their families. Further, the hardship created by the suspension of gaol visits and the consequent difficulty of prisoners properly instructing their legal representatives have been taken into account on applications under the Bail Act 2013 in this jurisdiction (see for example Rakielbakhour v DPP [2020] NSWSC 323 per Hamill J). Having considered the jurisprudence that has emerged here and in other jurisdictions within the last month, no general sentencing principle has been developed as to the impact of the Covid-19 pandemic on sentencing.

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