Sentence Reduced as Judge Failed to Consider Impact of COVID in Prison

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By Paul Gregoire and Ugur Nedim

NSW police commenced an investigation in June 2017, which led to detectives identifying eight men involved in a drug manufacturing operation producing MDA (3, 4-methylenedioxyamphetamine), a substance usually sold as MDMA on the street but can differ in effect.

The joint criminal enterprise involved three properties belonging to one of the men involved. A Wetherill Park premises, was used for the storing of precursors, as was a Mount Rankin property, while a Neville property was where the manufacture of the illicit substance took place.

A participant in the operation referred to as SF by the courts, was involved in manufacturing the MDA at the Neville Property, as were two other men. And a forensic chemist later determined that not less than 24 kilograms of the drug had been produced there.

In November 2017, SF was first observed by police at the Neville property carrying 20 litre chemical drums. And until the following March, he was recorded on multiple occasions speaking about the manufacturing process in code on the phone and had been surveilled inside the lab.

On 22 March 2018, SF was arrested and taken to Granville Police Station, where he participated in an electronically recorded interview, but refused to answer any questions. And he further took part in a forensic procedure and provided a DNA sample.

Mid-range objective seriousness

SF pleaded guilty to two offences in the NSW District Court on 19 October 2020.

The first was knowingly participating in a criminal group and being reckless as to whether his participation contributed to criminal activity, contrary to section 93T of the Crimes Act 1900 (NSW). This offence carries up to 10 years behind bars.

The second count was manufacturing a large commercial quantity of a prohibited drug, contrary to section 24(2) of the Drugs Misuse and Trafficking Act 1985 (NSW).

A large commercial quantity of MDA is 500 grams or more, whilst the entire operation produced at least 48 times this limit.

The crime of large commercial manufacture carries up to life imprisonment, along with a standard non-parole period of 15 years. An SNPP is a reference point for a sentencing judge when determining the minimum time a person must spend inside before being eligible to apply for parole.

SF was sentenced along with co-offender with the pseudonym of P, and both men tendered individual agreed facts. But NSW District Court Judge Graham Turnbull relied on P’s facts on sentencing, which were confirmed to be relatively the same during the hearing.

Special circumstances

At the 17 August 2020 sentencing hearing, the judge mentioned the long wait prior to it, which was caused by the COVID-19 pandemic, and noted the prolonged hazards of remand and strict bail conditions having been drawn-out, and he added he found “special circumstances” due to this.

Judge Turnbull then sentenced SF on 19 October to 7 years behind bars, with non-parole set at 4 years and 6 months. And this sentence reflected an overall 25 percent discount for the value of his guilty plea and assistance given to police.

A finding of special circumstances triggers section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which stipulates that an inmate’s non-parole period must amount to 75 percent of the overall sentence, unless special circumstances are found, and then non-parole can be reduced.

On sentencing, Judge Turnbull said that special circumstances had been confirmed “on the basis of supportive family, issues with gambling, PTSD and mental health”, as he gave reason as to why the non-parole period reflected 64 percent of the head sentence, rather than three-quarters of it.

Pandemic impacts

SF appealed against the length of his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 8 April this year, based on two grounds. The first was that the sentencing judge had failed to consider the “future impacts” of the COVID-19 pandemic, in making conditions “more onerous”.

The inmate’s lawyer raised other cases where the conditions caused by the pandemic had been considered, including the NSWCCA 2020 case Valentine versus R, and added that these future impacts should have been a matter relevant to the finding of special circumstances.

Sections of Judge Turnbull’s remarks were also raised, where his Honour had noted the superior courts were giving weight to the impact of COVID inside, as it was going to make it “tougher”.

“I obviously am obliged to give it significant weight,” the judge added.

Yet, despite the sentencing judge having mentioned these impacts, SF’s lawyer argued, there was nothing to indicate they had been taken into account. Indeed, when he listed the reasons for special circumstances, COVID was not mentioned.

And as the sentence was handed down two months after the hearing, it simply couldn’t be assumed it had been considered, it was further put.

The determination

NSWCCA Justice Mark Ierace said it was apparent that, “consistent with authority”, the judge intended to consider “the likely impact” of COVID as a “circumstance of mitigation” and he’d meant to give it “significant weight”. But the only reference in remarks was made to court delays.

“The question thus arises, whether one can safely infer from the sentence judgment, which was delivered two months after the sentence proceedings, that the sentencing judge had indeed taken it into account,” his Honour continued.

This delay in handing down the sentence was raised as playing a significant factor in whether the judge could be considered to have continued to have COVID impacts in mind on sentencing, especially as the conditions of prison were not raised, in general or in relation to the pandemic.

So, the ground of appeal was upheld, and, although it was unnecessary to determine the second ground as the court had to resentence the offender, his Honour decided to determine the other matter.

SF had further put it to the court that there was a disparity between his sentence and that of co-offender Derrick Washington, who was convicted and sentenced in a judge-alone trial by the late NSW District Court Judge Peter Zahra.

Sentenced eight months after SF, Washington received a 4 year and 3 month sentence, with a non-parole period of 2 years.

However, his Honour found as there was no evidence that this offender had manufactured any drugs, and his crimes were of a less serious nature, no comparison could be made. And thus, the second ground of appeal failed.


In a March 2022 affidavit to the court, SF outlined the negative impact of COVID inside, 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 took into account the large amount of MDA that had been produced. He found special circumstances, which included “the continuing impact of COVID-19” inside prison, and he further found the 7 year head sentence to be appropriate.

“In my view, a lesser sentence is warranted, by way of further reduced ratio of the non-parole period to the total term,” his Honour said, and, in quashing the earlier sentence on 7 October this year, he dropped the non-parole period down to 4 years and 2 months’ necessitated time in prison.

And NSWCCA Acting Justice Carolyn Simpson and Justice Peter Hamill both agreed with the orders of their colleague.

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