The curious role of COVID-19 in sentencing : Too much mitigating weight or not enough? Ill health and harsh prison conditions as relevant factors

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, more likely to experience adverse outcomes because of existing compromised health conditions, and more likely 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 been willing to extend a sentence discount as s 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 approach by the courts to factoring COVID-19 into the sentencing calculus provides the opportunity for a wider 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 more generally. The reforms proposed in this article will make this area of sentencing law more doctrinally coherent and lead to more consistent and predictable outcomes.