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COVID-19 and the courts: How are courts responding to COVID-19 in their decisions?

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County CourtWritten by Tyson Manicolo, Associate, Doogue + George Defence Lawyers

The outbreak of COVID-19 (‘coronavirus’) has radically changed our lifestyle in a way that we could never have predicted. It has indiscriminately stunned every aspect of our lives. The drastic measures taken to slow its spread have restricted our movement, ability to interact with others and work.

In this blog, I summarise how Victorian courts have responded to the coronavirus pandemic in plea hearings and applications for bail. I will extract the relevant parts of the courts’ decisions to assist other practitioners who read this blog with their own research.

Introduction

The Victorian Court of Appeal (‘the Court of Appeal’) acknowledged that coronavirus is causing people in custody and their families additional stress. Understandably, the Court of Appeal is hesitant to provide a clear guiding statement of principle on how courts should deal with this crisis because the disease is rapidly evolving. Instead, the Court of Appeal encouraged other courts to deal with it on a case by case basis. Justice Weinberg commented in Brown (aka Davis) v The Queen [2020] VSCA 60 at paragraph 48 –

‘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’.

Examples of coronavirus mitigating sentences

Sentencing Judges regard the onerous conditions remand in-mates must live in because of coronavirus in mitigation of sentence.

In DPP v Tennison [2020] VCC 343, his Honour Judge Lyon acknowledged while passing sentence –

‘This is your first time in custody, and I accept that it will be made more difficult by your separation from your family. The difficulties manifest in two ways. First, there has been a suspension of personal visits and the opportunity for telephone calls has become more restricted. Second, your opportunity to work and occupy yourself meaningfully in prison has been reduced as prisoner work has been limited to essential tasks only. I appreciate that these factors will add to the stress of your time in custody’.

 
Judge Lyon expressed a similar view in R v Morsey [2020] VCC 320 where his Honour considered the accused not being allowed visits from his family because they live interstate and the paranoia coronavirus is causing as mitigatory. His Honour said at paragraph 85 of the reasons –

‘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 as limited because your family live 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’.

 
The accused’s personal vulnerability and risk of being exposed to coronavirus in custody has become a relevant sentencing consideration. In R v Madex [2020] VCC 145, the Court held at paragraph 50 –

‘You are now 69 years old. An important and unprecedented factory 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 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’.

 
The utilitarian benefit of an accused’s early guilty plea has taken a new dimension. Justice Dixon in Director of Public Prosecutions v Bourke [2020] VSC 130, emphasised this benefit and noted that it spared the Court the logistical hassle of calling a jury pool in a time when our community must observe “social distancing”. Her Honour held –

‘I regard your plea of guilty as having substantial utilitarian value at the present time, noting the current public health concerns regarding COVID-19 virus, which may have impacted on the practical management of a jury trial if the matter had not resolved. I note that in the interim, between you pleading guilty and this sentencing, new jury trials have had to be ceased for the time being in Victoria. Fortunately, no jury pool is needed to be called in your case’.

Coronavirus and Bail

The effect of coronavirus on people’s experience in custody and abnormal delays it is causing has been raised in bail applications.

Justice Lasry turned his mind to the perilous position people on remand are in and remarked in Re Broes [2020] VSC 128 at paragraph 39 –

‘… there can be no question that once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate that these are matters of speculation to a degree, but the situation is sufficiently urgent to be taken into account’.

 
In Re Tong [2020] VSC 141, Justice Tinney warned that the current health crisis cannot be treated as a “get out of gaol free card” automatically satisfying Magistrates’ and Judges hearing bail applications that bail should be granted. There are still thresholds which must be satisfied and coronavirus forms part of the surrounding circumstances a court must contemplate.

At the time of writing this blog, coronavirus is in its early days, but it has already featured in many decisions. It will inevitably change the complexion of future sentencing and bail outcomes.

If you want to discuss any of the matters raised here please contact me on 03 9351 1455.

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