The applicant posed an unreasonable risk to the Australian community, the court found
Sentences laid down by the ACT Supreme Court have increasingly been reduced due to COVID-19-related hardships in correctional facilities.
The offender in R v Kinsela (2021) was charged with inflicting grievous bodily harm, theft and possession of cannabis, but the court reduced the period of mandatory imprisonment by one month “to recognise the hardships of incarceration in the pandemic.” The consideration was in addition to other factors such as the offender’s prospects for rehabilitation and criminal history.
R v Kinsela (2021) adds to what the Judicial College of Victoria termed as “coronavirus jurisprudence.” The college recognised that “the novel coronavirus is having a substantial impact on all aspects of Australian life” and that the pandemic affected “common law and the application of general principles, whether it be to bail, sentencing, the decision to grant a trial by judge alone, or otherwise.”
A number of courts said that the risk of contracting COVID-19 is especially worrying for offenders who are older and more vulnerable, which can cause anxiety. Moreover, the pandemic has aggravated stress and concern for prisoners and their families, “the extent to which [may] be taken into account.”
Nonetheless, courts clarified that there are exceptions to pandemic considerations; especially when an offender is characterised as being “on the cusp” of imprisonment, “the pandemic is not a reason for failing to impose such a sentence.”
For instance, the judge in Manojlovic v The Queen (2020) NSWCCA said that there was no requirement “that a sentence be ‘significantly mitigated’ because of the impact of the coronavirus.” Another possible exception is “where the offending is very serious, it may not loom large in the sentencing synthesis.”
