Guest v Director of Public Prosecutions
[2020] VSC 218
•17 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2019 0102
& S ECR 2019 0144
| DEAN GUEST | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2020 |
DATE OF JUDGMENT: | 17 April 2020 |
CASE MAY BE CITED AS: | Guest v DPP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 218 |
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CRIMINAL LAW – Criminal practice and procedure - Sentencing – Attempted murder – Prohibited person possessing a firearm – Application for six months’ adjournment – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Jeremy McWilliams | Office of Public Prosecutions |
| For the Accused | James McQuillan | Victoria Legal Aid |
HER HONOUR:
Introduction
On 4 October 2019, Dean Guest was arraigned and pleaded guilty to one charge of attempting to murder Mark Handler on 26 May 2017 and one charge of being a prohibited person in possession of a firearm, being a .22 calibre handgun, on 26 May 2017.[1]
[1]This occurred at a special mention before Justice Hollingworth. Prior to that, the Prosecution e-filed a new indictment (on 30 September 2019) and Mr Guest’s criminal record (on 2 October 2019). On 30 October 2019, the Crown e-filed its summary of prosecution opening for plea.
The plea was initially set down for hearing over two days on 4 and 5 February 2020. However, on 22 January 2020, Mr Guest’s solicitor wrote to the Court, explaining that the day prior she had been informed that on 21 December 2019 Mr Guest’s son was shot and killed. In the circumstances, the plea hearing was adjourned so that a further psychological report could be obtained.[2] The adjournment was granted in chambers and a new plea date was set on 17 April 2020.[3]
[2]A previous report was prepared in December 2019, prior to the murder of Mr Guest’s son.
[3]The Court was informed that counsel for both parties had agreed that one day (rather than two days) would suffice for the plea hearing.
This plea hearing remained listed to proceed on 17 April 2020, despite the COVID-19 public health emergency. Whilst jury trials have been postponed in this Court, due to the COVID-19 pandemic, as at the date of this ruling pleas and non-jury matters are still proceeding to some extent. The Court expected that the plea could proceed with the adoption of video-link and remote witness arrangements.
Ultimately, solicitors for Mr Guest applied for a six month adjournment of the plea hearing on the basis that the likely extent of the pandemic’s impact on prisoners is not yet known, and is an important mitigating factor to be taken into account during sentencing. The full procedural history to the making and hearing of that application is explained below.
The adjournment application was heard and refused on 17 April 2020.
Procedural history to the adjournment application
On 6 April 2020, Victoria Legal Aid solicitor Sharon Healey notified the Court by email of a request to have a witness from Port Phillip Prison (‘PPP’) give evidence for the applicant at his plea hearing. It was anticipated that this could be managed by video link to PPP.
On 8 April 2020, the Court received email correspondence from Ms Healey, on behalf of Dean Guest, stating:
Counsel and I were in discussions last night and today about our client. We wish to put the Court on notice that we will be seeking our client’s instructions tomorrow night in relation to an application for further adjournment of the plea hearing. As the Court is aware, we are in highly unusual times and this application is accordingly made in these unprecedented circumstances. The impact of COVID-19 on clients in custody is one that is changing rapidly from day to day. The recent authorities from this Court have been clear in respect of COVID-19 and its application to bail in giving rise to new facts and special circumstances. Authority for its application in sentencing, however, has been less clear as the Court cannot speculate in relation to future circumstances.
The email then referred to current prison conditions at PPP, which were put in place in response to the COVID-19 crisis, and to uncertainty about what might happen in the future, noting:
Our client is clearly looking at a number of years in relation to his sentence. The prison conditions that will no doubt be implemented imminently in the next few months, cannot of course, be applied retrospectively to our client’s sentence if this matter proceeds as it is currently listed. It would be remiss of us therefore, not to request that our client’s matter be adjourned for a couple of months so that he can be sentenced in accordance with the restrictive prison conditions that he is bound to face shortly and receive that sentencing benefit.
The email went on to suggest that, whilst an adjournment of a few months would have little impact on the Court, it would have a significant impact on the prisoner.
On 14 April 2020, Ms Healey notified the Court via email that she had instructions to make an application to adjourn the plea hearing ‘for a few months for the reasons indicated in the previous email’.
Also on 14 April 2020, the Crown indicated that the victim in this matter, Mr Handler, wished to read his Victim Impact Statement (‘VIS’) aloud at the plea hearing. Mr Handler lives in regional Victoria. It was anticipated that Mr Handler would need to attend the offices of the OPP or another established video-link facility to provide his VIS via remote witness video link.
That same day, the Court advised the parties not to assume the adjournment application would be granted, noting that the basis for the application to adjourn the plea hearing for a few months was unclear and needed to be supported by evidence. The next day, the Court informed the parties that the hearing on 17 April 2020 would be converted to a mention and an application for adjournment so as to avoid the need for witnesses to be made available.[4]
[4]This occurred due to the pressure on video-link facilities, particularly during the COVID-19 pandemic, and the desirability of not arranging video links for witnesses and for the victim if there was a prospect that the links might not be used, due to the adjournment application being successful.
Substantive basis for the adjournment application
An unsworn affidavit of Sharon Healey dated 16 April 2020 was filed on behalf of the applicant, the Court having granted leave for the affidavit to be filed without being sworn in light of the COVID-19 circumstances. The affidavit was tendered at the oral hearing.[5] It stated as follows:[6]
The basis for the application to adjourn is due to the current world pandemic of COVID-19 (the Corona Virus). In the past month, the applicant instructs that there has been an increased tightening by the prison of the remand conditions due to the prison’s response to the virus. As the disease spreads and should it enter the prison, these measures will become even more stringent.
[5]Exhibit (Ex) 1.
[6]Ibid, [6].
The affidavit attached, as exhibit “SRH-1”, a copy of an email dated 15 April 2020, from the Operations Directorate of Corrections Victoria to Ms Healey, advising of current measures in place at the PPP and the resultant impact on conditions for prisoners, and attaching a copy of a relevant Corrections Victoria policy[7] (‘the Operations Directorate email’).
[7]The policy dealt with the responsibilities of Corrections Victoria employees in managing prisoners in designated isolated units with suspected or confirmed cases of coronavirus.
The overall effect of the Operations Directorate email was to confirm that:
(a) Personal visits have been suspended as of 20 March 2020 for all Victorian public and private prisons in response to the rapidly evolving COVID-19 situation, but alternative communication measures have been implemented, including video visits to ensure that prisoners, their families and friends maintain face to face contact and an email prisoner service.
(b) PPP is operating on a 50/50 lock down with ‘staggered let outs’.
(c) The Education in Prisons Program has been suspended on a temporary basis though the Education, Training and Employment Branch of Corrections Victoria is working with TAFEs to develop a remote educational service. A number of group programs across public and private prisons took a two week treatment break, effective from 23 March 2020, in line with the suspension of education delivery. Program delivery was now moving to the use of remote technology wherever possible, but group programs were continuing where the physical distancing of attendees was supported by the infrastructure and the clinician could appear remotely.
(d) PPP authorities advise that there has been no change to telephone access for prisoners. Prisoners are able to call their legal representatives as needed and legal professionals can book a professional phone conference with their client through the Government Functions Unit, which operates until 7.00pm.
As stated earlier, the email also exhibited a Corrections Victoria policy (‘CR 1.4.9’),[8] which is a central policy, dated April 2020, to be implemented across all Victorian prisons, in response to COVID-19. The Operations Directorate email states that the policy was developed in consultation with health experts.
[8]The policy was issued by the Commissioner of Corrections Victoria, Emma Cassar, under Part 1 of the Commissioner’s Requirements, which deals with security and control measures. Commissioner’s Requirements are publicly available on the Corrections Victoria website, which states that they are a set of high level requirements issued by the Commissioner in respect of operational matters and are developed in consultation with prison management and operators.
The stated purpose of CR 1.4.9 is, ‘To outline the responsibilities of all correctional employees to assist in managing prisoners in designated isolation units across all prisons, for suspected and confirmed cases of coronavirus (COVID-19), to reduce the risk of transmission in the Victorian prison system.’
CR 1.4.9 states inter alia[9]:
The physical isolation process in Victorian prisons will be managed with a view of minimal impact to prisoners’ mental health and wellbeing; and reduce the risk of COVID-19 being brought into, and spread within and between, prisons.
[9]Paragraph numbers omitted.
Under the heading Guiding Principle, it states:
Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions.
Corrections Victoria recognises the impact that physical isolation can have on a prisoner’s health and wellbeing and all prisoners have the right to humane treatment when in isolation.
Prisoners are encouraged to maintain contact with their family and social supports by mail and telephone, as this contact is beneficial to support a prisoner during their custody, in particular, when social contact is limited
Prisoners will be afforded a range of materials and equipment to support their time during isolation.
Under Context, it states:
In order to slow the spread of COVID-19, the Australian Government and health experts have recommended that we use of the most effective measures, which includes physical distancing and isolation
As physical distancing is almost impossible in prisons, the introduction of Protective Quarantine Units for all new receptions commenced on 28 March 2020. This means that all prisoners on entry into prison custody will be required to be quarantined for a 14-day period, after completion of the reception assessment process. This period of quarantine may be served across multiple locations (i.e. prisoners may be transferred from a protective quarantine unit in one prison to another).
A further measure in Victorian prisons is the isolation of suspected and confirmed cases of COVID-19.
Separation Orders are not required to be completed for prisoners placed in protective quarantine or physical isolation as part of a declaration of an emergency in Victoria’s prisons, to exempt regulation 32 of the Corrections Regulations 2019.
CR 1.4.9 contains details setting out the practical implementation of the isolation of suspected and confirmed cases of COVID-19, including the operating principles to be applied and requirements for staff. The policy includes sections on procedures for prisoners with suspected COVID-19 and for prisoners with confirmed COVID-19, as well as sections relating to prisoners with mental health needs, those at risk of suicide and self-harm and prisoners with special needs.
It was common ground at the hearing of the adjournment application that at this stage there have been no reported cases of COVID-19 in prison.
The Hearing
At the hearing on 17 April 2020 Mr McQuillan was physically present in the Court and was the only person at the Bar table. Mr Guest was present via remote facility PPP. Mr McWilliams was present via an OPP designated link. These measures were in place to enhance social distancing between individuals involved in the proceeding.
Mr McQuillan confirmed that despite the fact that his instructor had earlier referred to a request for an adjournment for a few months, it was now sought to adjourn the plea hearing for six months.
The primary basis of the adjournment application was that, since the COVID-19 pandemic arose, more restrictive conditions had been placed on prisoners in custody, changing the circumstances in which prisoners are serving time on remand or under their sentence.[10] Moreover, Mr McQuillan contended that it was not known how circumstances may change for prisoners in the months to come, saying:[11]
And there is the possibility, although it can be squarely said to be speculation, I would ask Your Honour to take a judicial notice of the fact that in the general community and by way of pronouncements from our governments, both Federal and State, it would appear that there is a general expectation in the community that things will either at least stay the same for the next six months, it’s what our Prime Minister is telling us, or get worse. When I say ‘get worse’ there’s the obvious potential that matters could get worse for prisoners.
[10]Transcript of Proceedings, Guest v DPP (S ECR 2019 0102 & S ECR 2019 0144, Justice Jane Dixon, 17 April 2020) 14.
[11]Ibid 14.
Mr McQuillan went on to mention that although there had been no cases of COVID-19 in Victorian prisons to date, it would not be difficult to imagine, without too much speculation, that such an event may occur and more restrictive conditions than the 50/50 lockdown currently in place might then result.[12]
[12]Ibid 14-15.
Mr McQuillan referred to Brown v The Queen,[13] submitting that the case contained an acknowledgment that the COVID-19 pandemic had already had some impact in relation to sentencing and could have further impacts in the future, depending on the individual circumstances of the case, stating:[14]
There is an inference that can be drawn from that paragraph [in Brown], Your Honour, that if things get worse and conditions become more restrictive or similarly, even if the restrictive conditions that are currently in place were to stay the same, but were to stay that way for a considerable amount of time, we’ve had a month so far, what if it goes on for 18 months? Then… it should result in a considerable – or significant, I should say, impact on any sentence.
[13][2020] VSCA 60.
[14]T17.
Mr McQuillan said that he sought, on behalf of his client, an adjournment for a period of six months because:[15]
If in six months the situation, the virus situation has resolved itself, well everything will be clear and I can say to Your Honour, well for the past five months or whatever, he’s been in a lockdown situation, that situation has now ended, and Your Honour can sentence without any sense of anticipation of what might happen in the future or speculation of what might happen in the future. It will be clear cut. If Your Honour were to hear the plea and sentence now, there would be at least some degree of speculation about is his time in custody going to go on in the restrictive conditions, or is it going to get worse?
[15]T20-21.
He suggested that the situation would be different if his client was looking at a shorter sentence, for example of six months or two years, but that the adjournment application was justified in this case, given the longer sentence his client was facing.[16]
[16]T22.
Mr McQuillan acknowledged that in six months’ time there might still be uncertainty regarding the COVID-19 crisis and its impact on prisoners, but argued that his client ‘should be given the benefit of the doubt that it’s possible’ that there might not be uncertainty in six months, rather than being sentenced now ‘and leaving that issue about how long the restrictive conditions are going to last open and speculative’.[17] He was concerned his client may not receive ‘the full benefit of that mitigatory factor that he would or may, may receive, if we adjourn, for example, for six months and there’s no more uncertainty’.[18]
[17]T23.
[18]Ibid.
Mr McQuillan said the adjournment application was based on the potential prejudice to his client, if the matter were to proceed earlier. If his client was sentenced in the next week, by way of example, and conditions in prison became more restrictive, ‘he can’t come back and ask to be re-sentenced, he only gets one chance’.[19]
[19]T24.
In response to questioning from the bench, Mr McQuillan agreed that if the plea hearing were to proceed sooner rather than later (the adjournment application having been denied), he would rely on the information set out in his instructor’s affidavit to argue that there is ongoing hardship, due to the more restrictive prison conditions currently in place, and he would refer to the general uncertainty afflicting people in prison because of the pandemic. He might also seek further information about how specifically his client is impacted by the situation.[20]
[20]T24.
In response to the adjournment application, counsel for the Crown, Mr McWilliams noted that the Crown did not oppose a shorter adjournment, so that material could be marshalled relevant to the accused’s individual hardship as a result of the pandemic. However, Mr McWilliams suggested that obtaining the relevant material should take the Defence weeks rather than months.[21] An adjournment for a period of six months was opposed. Mr McWilliams submitted that a short adjournment would not cause any particular prejudice to the Crown but that ‘the interests of justice broadly would be prejudiced by a half year adjournment’[22] and ‘it's too long a time for too uncertain a purpose’.[23]
[21]Mr McWilliams accepted that the restrictions imposed in prisons due to the COVID-19 pandemic may be relevant to sentencing and a matter for consideration at the plea hearing. He suggested that the extent to which those circumstances impact on a particular prisoner is a matter to be established by evidence: at T32
[22]T33.
[23]T35.
Consideration
In considering the application for an adjournment of the current plea hearing, I have had regard to the principles governing adjournment applications.
In the case of R v Cox,[24] the Full Court (composed of Herring CJ, Lowe and Little JJ) considered a judges’ refusal to grant an adjournment in circumstances where the applicant’s solicitor had not arranged representation for the trial date, due in part to the fact that funds had not been paid in full for the applicant’s defence. The Full Court found there was no error in the trial judge’s exercise of his discretion to refuse an adjournment and that no miscarriage of justice had resulted from the decision.[25]
[24][1960] VR 665.
[25]Ibid 668.
In its reasons, the Full Court highlighted ‘the inherent power of every court to control its own proceedings unless that power is restricted by some competent authority’ and noted that ‘power to adjourn also includes a power to refuse to adjourn.’[26] Regarding that power to adjourn or refuse to adjourn proceedings, it stated: [27]
…How the power is to be exercised is a matter in the judicial discretion of the trial judge, a discretion which will only be disturbed on serious grounds. The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a very different matter. In this case, these include such matters as the opportunities which the applicant had since committal of engaging counsel, the fact that he had not engaged counsel, the state of the court list, the inconvenience and expense which would or might be caused to others by granting the adjournment, whether it was desirable or convenient that the applicant’s case should be adjourned and that of his co–accused proceed alone and whether he was of opinion that the application was really made for the reason advanced…
[26]Ibid 667.
[27]Ibid 667-8.
On the other hand, in McColl v Lehmann[28] Kaye J found error in a Magistrate’s decision to refuse an adjournment of a summary proceeding against a union official prosecuted for an offence under the Summary Offences Act 1966 (Vic). The union official had refused to leave a building site when ordered to do so. As part of his defence, he claimed that as a union official he was entitled to remain on site. On the day the matter was called on for hearing, defence counsel sought to adjourn the hearing. Counsel had not had sufficient time to confer with his client or to examine some of the relevant case law and legislation. Further, counsel needed more time to obtain documentary evidence relevant to his client’s defence.[29]
[28][1987] VR 503.
[29]This third ground for the adjournment was considered the ‘substantial’ one: Ibid 508. Defence counsel was seeking to obtain relevant documents both under the Freedom of Information Act 1982 (Vic) and by way of subpoenas issued in the proceeding to the company operating the building site, its managing director, and the Ministry for the Department of Labour. In particular, the Defence sought documents sent to employers by government departments and employer organisations with general instructions on the exclusion of union organisers from job sites. The subpoenaed documents were not made available to the Defence prior to the hearing and the subpoenas were then set aside by the Magistrate, but Kaye J rejected the grounds upon which those subpoenas were set aside.
Kaye J found that in refusing to adjourn the proceeding, the Magistrate had failed to properly exercise his discretion to adjourn the hearing or to exercise it at all. The result of that refusal was a denial of the opportunity for counsel to present evidence he considered potentially material to the defence and obtain what he considered to be sufficient instructions to enable him to properly present the defence. His Honour opined that there was a real risk that justice was denied to the applicant by the refusal of the adjournment.
In discussing the applicable principles in that case, Kaye J explained as follows:[30]
The decision whether to accede to or refuse the application for adjournment of the hearing was within the Magistrate's discretion. An appellate court will rarely interfere with a trial judge's exercise of discretion upon such an application. However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence; in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action - whether civil or criminal - that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge's discretion…
[30][1987] VR 503 at 506. Citations omitted.
More recently, in McGrath v The Queen,[31] Osborn and Priest JJA considered an appeal against sentence in a case where the appellant was charged with culpable driving and causing serious injury negligently. The sentencing judge had refused an application for an adjournment of the plea hearing so that a neuropsychological report could be obtained. The appellant alleged a failure by the judge to apply procedural fairness, resulting in the sentencing discretion miscarrying.
[31][2018] VSCA 134.
During the plea, counsel tendered three psychological reports, including a report from Mr Jeffery Cummins, a clinical and forensic psychologist, which expressed the opinion that, before sentencing, the Court should be provided with the results of comprehensive neuropsychological testing.[32]
[32]Ibid at [24].
Counsel for the appellant applied for an adjournment at the outset of the plea hearing. The trial judge refused that application, indicating that he would consider adjourning sentencing at a later stage, if persuaded that a neuropsychological report was needed. When the need for an adjournment was raised at a later point in the plea, his Honour again refused the adjournment, instead proceeding on the basis that the appellant was at the low average end of intellectual functioning. His Honour expressed the view that the appellant would not be prejudiced by that decision but also appeared to be influenced by the fact that, due to his forthcoming retirement, he would not be able to complete the sentencing were he to allow the adjournment.[33]
[33]Ibid at [28]–[30].
On the appeal, the Court received fresh evidence, being a neuropsychological report prepared by a clinical neuropsychologist, Martin Jackson, following sentencing. The report shed further light on the relevance of the appellant’s cognitive function to sentencing. Their Honours found that the report assessed the appellant’s intellectual function at a lower level than that assumed by the sentencing judge and ‘materially amplified the implications of the appellant’s relatively low level of intellectual function’.[34] That finding led their Honours to conclude as follows:[35]
It follows that the effect of the adjournment was to exclude relevant evidence which would otherwise have been adduced on behalf of the appellant.
Further, the decision to reject the opinion of Mr Cummins that a neuropsychological report was appropriate and to refuse an adjournment was made for reasons which do not withstand scrutiny.
First, the sentencing judge stated in terms that an adjournment would not be granted because he was shortly to retire. This consideration could not override the obligation to provide a fair hearing of the plea. Secondly, his Honour expressed the view that any prejudice to the appellant would be avoided if he simply assumed that the appellant was at the lower end of the average range of intellectual function. This assumption was arbitrary and has been demonstrated to be inadequate by the report of Mr Jackson.
In the circumstances, we are satisfied that material error occurred in the sentencing process and ground 2 of appeal is made out.
[34]Ibid at [47].
[35]Ibid at [48]–[51]. Paragraph numbers omitted.
Their Honours then went on to summarise the legal principles said to be underpinning their decision, as follows:[36]
[36]Ibid at [52], citing various cases and in particular, HG v The Queen (1999) 197 CLR 414 and Onus v Sealey (2004) 149 A Crim R 227. Citations omitted.
(1)The judge had a general discretionary power to adjourn pursuant to s 331 of the Criminal Procedure Act 2009.
(2)The judge was not confined to considering the interests of the appellant. He was entitled to consider the interests of justice having regard to all relevant circumstances.
(3)There was a legitimate public interest in seeking to expedite the finalisation of the plea hearing in order to reduce the stress and distress which it could be expected to cause to the family of Mr Watkin.
(4)There was however no issue of delay or other discrediting conduct on the part of the appellant. In HG v The Queen, Hayne J said:
If a witness whom the accused wishes to call to give evidence is not available, and if (as was the case here) there is no suggestion that the accused is seeking simply to delay the trial, a trial judge would ordinarily not refuse the adjournment sought.
(5)In the present case, the application was properly made upon the basis of evidence and not mere assertion.
(6)The sentencing judge was bound to consider the potential prejudice to the appellant’s case. The question was whether sufficient evidence had been shown to demonstrate that a neuropsychological report might be material and its unavailability, when considered with the other relevant circumstances, provided sufficient ground for an adjournment.
(7)The impending retirement of the judge raised a potentially relevant case management issue, but it could not prevail over the injustice of shutting the appellant out from adducing relevant evidence which might materially assist his case.
(8)The general principle governing appellate interference with a refusal to adjourn was stated by Kaye J in Onus v Sealey:
It is well established that the decision, whether to accede to or to refuse an application for an adjournment, is an exercise of a judicial discretion. Appellate courts rarely interfere with a trial judge’s exercise of that discretion. However, where the result of a refusal of an adjournment might be to prevent a party from presenting his or her case as fully as necessary and within the limits of the law, then an appellate court will interfere with a trial judge’s exercise of his discretion. Such an intervention by an appellate court occurs where it is necessary to prevent an injustice to one or other of the parties caused by the failure of the lower court to grant the adjournment…
(9)To similar effect Gummow J observed in HG v The Queen:
The fundamental question is whether, as the Full Court of the Supreme Court of Victoria explained in R v Jones with reference to the proviso to section 568 of the Crimes Act 1958 (Vic), the denial of the adjournment meant that the accused was not given a full opportunity to present his defence, a ‘basic standard required for a proper administration of justice’.
Ultimately, their Honours held that the sentencing judge was in error in refusing the application to adjourn the plea hearing. They considered that procedural fairness required an adjournment[37] and that the refusal to adjourn ‘denied the appellant a full and fair opportunity to present his plea in mitigation’.[38] However, the Court did not consider that a different sentence ought to have been imposed and the appeal was therefore dismissed.
[37]Ibid at [4].
[38]Ibid at [53].
Turning to the substantive merits of the application before me, at issue is the relevance of the COVID-19 pandemic and its potential impacts on the custodial circumstances of the applicant.
Recently, in Brown v The Queen,[39] Priest and Weinberg JJA considered an appeal against a sentence of five years and six months imprisonment with a non-parole period of three years for trafficking in a drug of dependence, cultivating a Commercial Quantity of a narcotic plant and theft. The Crown conceded that the sentencing judge made an error in taking into account damage done to the property used for the cultivation, having previously indicated that she regarded that aspect of the Crown’s submissions as speculative. As a result, the sentencing discretion was vitiated and the Court of Appeal was required to consider for itself whether a different and lesser sentence should be imposed. In the course of re-exercising the sentencing discretion, the Court considered a submission on behalf of the applicant that the current COVID-19 pandemic was relevant to any re-sentencing exercise to be carried out by the Court.
[39][2020] VSCA 60.
Counsel had submitted from the Bar table, without any formal evidence, that personal visits for prisoners were no longer permitted and that, in the current circumstances, it took a week to organise even a professional visit by audio-visual technology. Counsel contended the Court should infer that prisoners and their families are suffering a high level of anxiety, perhaps somewhat akin to a Markovic[40] type burden, and submitted that this should give rise to a ‘palpable and discernible’ discount on both the head sentence and the non-parole period on a re-sentencing exercise.[41]
[40]Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 (‘Markovic’).
[41]Brown v The Queen [2020] VSCA 60 at [33].
In response to that submission, the Court stated as follows:[42]
With regard to the COVID-19 pandemic…we readily acknowledge that this a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with the crisis as regards its effect upon relevant sentencing principles. We do accept however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on a the particular facts of any individual case.
[42]Ibid [48].
This somewhat tentative statement of principle from the Court of Appeal in Brown has since been referred to in Nguyen v The Queen[43] and in Sazimanoska v The Queen[44].
[43][2020] VSCA 76 (decided 1 April 2020 per Niall JA and Croucher AJA).
[44][2020] VSCA 66 (decided 26 March 2020 per Priest and Weinberg JJA).
I note also that in the recent case of DPP v Harper (a pseudonym)[45], His Honour Judge Tinney made reference to the impact of potential hardship arising from the COVID-19 pandemic, especially in light of the age of the prisoner in that case, stating:[46]
I also take into account the increased burden of one of your age entering prison in the midst of this global pandemic that we are encountering. It is a very uncertain world we live in and you will experience anxiety as to your ability to manage this issue in a custodial setting. You are at a vulnerable point given your age and relatively poor health.
[45][2020] VCC 336 (decided 25 March 2020 per Tinney J).
[46]At [40].
His Honour also noted that the prisoner in that case had no real autonomy in custody and went on to say:[47]
It is too early to know how this is all going to play out in the prisons. I am not free to speculate about that. But it is a rapidly evolving setting, changing almost on a daily basis. Undoubtedly it is generating stress amongst us all and it must be doing so amongst prisoners and their families. As I understand it all person visits have been suspended, but with the hope of having increased ability to communicate otherwise, including electronically...
[47]At [40].
In this matter, it was not suggested that the applicant is especially vulnerable or that he or anyone that he is in contact with had been diagnosed or suspected of having COVID-19. Rather, it was suggested that there was a risk that things could change for the worse in the custodial environment in the future and that, without an adjournment the Court would be sentencing the applicant without knowledge of such possible future events.
It is of course obvious that the Court cannot be certain about what impacts may lie ahead for prisoners regarding the COVID-19 pandemic. The material obtained on behalf of the applicant from Corrections Victoria includes some useful information about hardship experienced by prisoners as a result of increased restrictions put in place in order to reduce the risk of COVID-19 within Victorian prisons. It also sets out some of the steps being taken to minimise hardship. There may be more information that can be readily obtained to clarify the impacts on the applicant with greater particularity.
I accept that it is reasonable to allow the applicant an adjournment of some weeks to marshal any further material relevant to the applicant’s own situation as a result of the COVID-19 pandemic and any hardship already experienced or likely to be experienced by him. I am not persuaded, however, that an adjournment for a period of six months is required. As has been stated in McGrath v The Queen, the interests of justice include not only the interests of the accused but also the interests of the administration of justice. This includes the need for criminal proceedings to be concluded as soon as is practicable within the constraints currently in place.
Conclusion
The plea will be adjourned until 15 May 2020. This date is suitable to both parties. I will leave the video-link facility open to Mr McQuillan, so he may confer with his client after the Court is cleared. I accept that there may be some additional difficulties organising tele-conferencing with persons in custody in the current circumstances. Nevertheless, the period I have allowed should give ample time for any further instructions to be obtained.
There is legitimate public interest in ensuring that criminal proceedings are dealt with in a timely way, when it is practical to do so in the current COVID-19 environment, thus alleviating the distress felt by victims of crime when matters are adjourned for lengthy periods. I am not satisfied that the applicant will be prejudiced by his plea proceeding in the near future.
There will always be some degree of uncertainty about what may occur in a custodial environment in the future. Evidence can be called at the plea hearing about restrictions that may be put into place due to the pandemic, including lockdowns and reduced access to family and friends. These matters may be being offset to some degree by deduction of emergency management days from a prisoner’s sentence and to a large extent these matters are within the purview of the executive. If there was an inability for the applicant to have proper access to his legal practitioner, that would raise different considerations, but Mr McQuillan did not press that argument as the ground for applying for an adjournment for six months.[48] At any event, there will be some further time during which communications can occur between now and 15 May 2020.
[48]The Court requested that, if he has difficulty accessing his client, having made all reasonable efforts to do so, then the Court should be notified about that to see if it can assist: at T40.
The nature of any hardship to the applicant and its potential relevance to his sentence is a matter that can be explored in evidence and submissions on the plea. The applicant’s case will be considered in light of the facts and circumstances applicable to him. Adjourning a plea hearing on the basis of an inability to foretell the course of future events would be futile.
The application to adjourn the proceeding for six months is refused. The matter will be adjourned to 15 May 2020.
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