Australia, Court of Criminal Appeal, Supreme Court, New South Wales, 7 October 2022, SF v The Queen [2022] NSWCCA 216 - BarNet Jade - BarNet Jade
Case overview
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Decision date
Deciding body (English)
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Type of Court (material scope)
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Type of Court (territorial scope)
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Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant appealed against the length of his sentence for drug offences due to the impact of COVID-19 in prison. The main rights included prisoner’s rights and right to health. The Applicant sought that the sentence be reduced. The Court quashed the original sentence and sentenced the Applicant to a total of 7 years backdated to 29 January 2019 with an eligible date for release on parole of 28 March 2023.
Facts of the case
The Applicant was convicted of s 93T(1) of the Crimes Act 1900 (NSW) and s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) in the District Court on 19 October 2020 following pleas of guilty. He was sentenced to 2 years and 7 years respectively, a non-parole period of 4 years 6 months and the total sentence to expire on 28 January 2026 (backdated).
The Applicant appealed against the length of his sentence in consideration of future COVID-19 impacts as well as the COVID-19 pandemic making conditions "more onerous". The Applicant outlined the negative impact of COVID-19 in prison, 'which included being quarantined in a cell with another prisoner for two weeks, then three months spent in lockdown, as well as extremely limited family visits'. In resentencing, Justice Ierace acknowledged that he was obliged to give COVID-19 impacts 'significant weight' and found special circumstances, which included “the continuing impact of COVID-19” inside prison.
The Court upheld the Applicant’s appeal, quashed the original sentence, and sentenced the Applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months. The earliest date the applicant will be eligible for release to parole is 28 March 2023.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court considered fresh evidence at the resentence appeal which comprised of affidavit evidence from the Applicant which detailed what life in prison was like during the pandemic. The COVID-19 restrictions had meant that plumbers were unable to enter into the cell or pod to fix the hot water system and as such the Applicant was without hot water for 9 days. Due to the lockdown, he had received only 1 family visit in his first 12 months. He could not attend courses to have him reclassified to a level that would permit him to participate in work release (work outside the prison) as they had been cancelled due to COVID-19. The increasing isolation from his family by way of visits had resulted in the Applicant’s mental health declining. The Court considered this fresh evidence and the Applicant’s positive progress during his imprisonment and considered he had good prospects for rehabilitation and is unlikely to re-offend. The court acknowledged that the new evidence as it related to the impact the COVID-19 pandemic was having on prisoners, did not meet the standard required for “significant weight” that is required by case law. However, the distress experienced by the increased restrictions imposed by the pandemic was taken into consideration in the “general mix of subjective circumstances.”
Applicant’s appeal against the severity of the sentence was successful. The original sentence was quashed and a new lesser sentence was imposed.
Conclusions of the deciding body
Appeal successful. Original sentence quashed and new sentence imposed.
Fundamental Right(s) involved
- Prisoners’ rights
- Right to an effective remedy
- Right to private and family life
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Other notes
On "type of measure challenged": The case didn’t challenge the steps taken to prevent the transmission of COVID-19 in prisons but reflected on the additional restrictions and their impact on people whose freedom is already restricted i.e., prisoners. The additional restrictions were caused bylocal government measure (region, province, county, etc.) and Federal government measure.
