The COVID-19 pandemic has caused (and is causing) widespread changes to many aspects of Australian society. The courts are no exception, with many moving to online hearings and adjusting how jury trials are conducted. In addition to these adjustments, courts have also had to grapple with how to take the COVID-19 pandemic into account when sentencing federal offenders.
Courts have acknowledged that prisons are susceptible to a COVID-19 virus outbreak as there is limited opportunity to socially distance, creating an ongoing risk of harm to prisoners and increasing the burden of the conditions prisoners face. How and when this should be taken into account in sentence will depend on the particular circumstances of the case and the evidence that is brought before the court. As noted by sentencing courts, the pandemic situation is uncertain and often evolving, as has again been evident in recent weeks. This has largely precluded courts from expressing statements of general principle. Nevertheless, the impact of the pandemic on sentence has been the subject of judicial consideration, at the federal, state and territory level.
When sentencing federal offenders, courts to date have primarily taken the impact of COVID-19 into account with respect to the common law factor of hardship to the offender. In one case, COVID-19 increased the amount of the discount given for the offender’s guilty plea. This was because a guilty plea during the COVID-19 pandemic to a Commonwealth offence, which requires a jury trial, was considered to have additional utilitarian value, given the substantial stresses on the court’s capacity to conduct jury trials. Courts have also taken into account the delay caused by the pandemic, and there has been at least one example of a judge imposing an intensive correction order as opposed to imprisonment, given the additional constraints of imprisonment during the pandemic. These impacts are currently the subject of research by the CSD team and will lead to commentary updates, including a new page regarding the impact of COVID-19 on federal sentencing.
As outlined above, the most common impact of COVID-19 at sentence has been to the court’s consideration of hardship. Hardship to an offender is taken into account at sentence where ‘an offender will be required to serve their sentence under additionally onerous or burdensome conditions’. Courts have considered that certain consequences of COVID-19 in the correctional environment has rendered the conditions of imprisonment more onerous than usual. For example, courts have taken into account that visitation to prisons has largely been suspended since March 2020. In addition, travel between and within correctional facilities and access to social activities has been restricted. Further restrictions for some prisoners have included the prospect of spending time in solitary confinement, lack of access to educational courses and rehabilitative programs, a significant decrease in access to outside exercise and fresh air, as well as limited access to the library, legal visits, dental care and non-urgent medical care.
However, courts have refused to speculate about the direct health risk posed by COVID-19 to an offender in circumstances where there is no evidence to establish the offender is at a greater risk of contracting the virus than others in custody so as to amount to hardship. Where an offender is at a greater risk of a negative outcome if they were to contract COVID-19, this may not amount to hardship, where that risk is the same in custody or out of custody. It has been noted that the court is not in a position to make an evidence-based assessment of the risk of an offender contracting COVID-19 in prison, and whether that risk is greater than for the general public.
As the pandemic situation continues to evolve and further cases work their way through the courts, the way that COVID-19 is taken into account may continue to evolve. As is often the case with the ongoing pandemic situation, the future development of principle remains uncertain.
*This content has been reviewed by the Editor of the Commonwealth Sentencing Database, but unlike our commentary pages has not been approved by our entire academic panel. The final COVID-19 Sentencing Page will be published in the coming weeks.
 Commonwealth Sentencing Database, Hardship to the Offender (27 October 2016) <https://csd.njca.com.au/principles-practice/general_sentencing_principles/s16a_specific_relevant_factors/hardship/> citing Muldrock v The Queen  HCA 39,  (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).