NSW BAR ASSOCIATION

SELBORNE CHAMBERS

BASEMENT LEVEL, 174 PHILLIP STREET

SYDNEY, NSW, 2000

Re: Sentence remissions due to COVID-19

Dear Sirs,

I’m writing to enquire if legal & humane consideration has been given to sentence reductions/remissions for all inmates impacted by COVID-19 due to the prohibition of prison visits by family and loved ones rendering conditions more onerous. The mental health and well-being of inmates is suffering due to the lockdowns, leaving inmates unable to connect with friends, family, wives and most importantly their own children.

This situation is clearly demonstrated in the community where there continues to be protests against these lockdowns and restrictions on movements to attend funerals, weddings, and loved ones in their final hours in hospital. There is continued debate regarding the ongoing mental health issues throughout the community due to limited interactions with family and friends which is exacerbated with incarcerated men, women, and juveniles.

It’s argued that an entire generation will be affected by the aforementioned onerous conditions for those in the community. It therefore seems inhumane & prejudicial to double punish inmates by not reducing their sentences due to the arduous conditions.

Another issue is the constant level of apprehension felt by inmates with the fear that if COVID-19 enters into the prison system what level if at all any healthcare they can expect to be given, given the the poor track record of ‘Justice Health’. That said, given the level of contagion with the new ‘Delta’ strain, experts predict it seems highly likely that prisons will experience outbreaks at some stage. This could derive from an asymptotic prison officer, other worker or newly incarcerated inmates entering the system undiagnosed. Poor access to health care facilities, slow procedures to diagnose, isolate and treat patients will contribute to rapid spread inside prison walls. This in combination of limited accessibility to social distance, poor ventilation in cells, will offer a challenge to prevent an outbreak spreading exponentially & placing an even larger strain on an already strained prison system.

In 2020, emergency legislation in response to COVID-19 under Crimes (Administration of Sentences) Amendment (COVID-19) Regulation 2020 sets out classes of inmates who may be released on parole early under the emergency legislation. At the time of these amendments I don’t believe anyone could foresee that 16 months later that Australia is in the same if not worse position. Could there not be subsequent review to feasibly allow a broader criterion of inmates the opportunity to be released on parole and/or home detention to ease the burden on families as well as goals?

Courts have acknowledged the COVID-19 pandemic identifying the increased onerous custodial conditions due to suspension of prison visits, isolation measures, impact on prisoner well-being, prisoner anxiety, age & health concerns & interruption to rehabilitation/ work programs. Therefore, given this expert analysis, this should be sufficient information to permit time reductions for previously sentenced inmates, is this the next logical step?

It’s no longer speculative that the COVID-19 pandemic will have continual undetermined periods of restrictions in gaols. Notwithstanding the current significant numbers of case law where COVID-19 has been considered for reduced sentences handed out during the pandemic, is not arguable that previously sentenced inmates should be afforded the opportunity to benefit on the grounds of equality of justice?

There have been numerous reports written regarding COVID-19 & Mental Health issues for NSW Prisoners (other states/ territories). A report by Dr Andrew Ellis, 9th April 2020, concerning the potential impact of COVID-19 measures on Mental Health of persons in custody in NSW & a report by Professor Tony Butler & others, Kirby institute, University of NSW regarding COVID-19 & the impact NSW prisoners (reports are available on the Bar Association website under COVID-19 and Prisons & Detention Centres.

One suggestion for reductions of court-imposed custodial sentences could be a remission for days in lockdown without contact visits. This would work as a comparable yard stick for all inmates that have experienced life without visits. The underlying premises doesn’t discriminate for those with or without visitors & allows a workable formula that is not complicated to calculate. A further issue to be addressed: how a possible discount could be attributed to each inmates sentence without creating a backlog in the courts. A feasible solution is for Parliament or the Attorney General to pass legislation with a formula that reflects the unique situation of this ongoing pandemic.

Attached is the signatures of inmates at Macquarie Correctional Centre (MCC) in silent, non-confrontational protest to the onerous conditions of incarcerated life without contact visits. Whilst there have been physical protests in other gaols MCC inmates are looking to explore other avenues for reconciliation to what we perceive as a long-term ongoing issue given COVID-19 shows no signs of slowing down.

We are therefore asking for help from the Bar Association to hear our matter & offer assistance moving forward to secure a fairer outcome on the impact to NSW prisoners due to COVID-19. We understand why visits are prohibited but can’t understand why the government has either forgotten about us or are deliberately ignoring the issues mentioned with inmates and mental health. We look forward to your favourable reply in the near future.

Kind Regards.