The Curious Role of COVID-19 in Sentencing: The Relevance and Mitigating Weight of Ill Health and Harsh Prison Conditions

Australian courts have held that the COVID-19 pandemic should impact on the nature and severity of criminal sanctions. Broadly, it has been argued that prisoners are more likely to be infected with COVID-19, to experience adverse outcomes because of existing compromised health conditions, and to experience more onerous incarceration due to lengthy periods in lockdown. The courts, on balance, have been sympathetic to these and other arguments, and accordingly have been willing to extend a sentence discount as a result of the pandemic. This article argues that while there is some theoretical support for this approach, it is inconsistent with the weight of established jurisprudence that strictly interprets the circumstances in which a penalty reduction will be accorded for health reasons. The judicial approach to factoring COVID-19 into the sentencing calculus provides the opportunity for broader analysis of the manner in which medical conditions and strict prison conditions should be weighed as relevant factors in sentencing outcomes. The pandemic has also raised the potential use of remissions through executive action as another form of sentence discount for prisoners. The reforms ultimately proposed will make this area of sentencing law more doctrinally coherent and lead to more consistent and predictable outcomes.