COVID-19 and the courts: How are courts responding to COVID-19 in their decisions?
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.
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  VSCA 60 at paragraph 48 –
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  VCC 343, his Honour Judge Lyon acknowledged while passing sentence –
Judge Lyon expressed a similar view in R v Morsey  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 –
The accused’s personal vulnerability and risk of being exposed to coronavirus in custody has become a relevant sentencing consideration. In R v Madex  VCC 145, the Court held at paragraph 50 –
The utilitarian benefit of an accused’s early guilty plea has taken a new dimension. Justice Dixon in Director of Public Prosecutions v Bourke  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 –
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  VSC 128 at paragraph 39 –
In Re Tong  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.