COVID-19: an exceptional or surrounding circumstance for the purposes of bail and sentencing?

COVID-19 has had a significant effect, globally and domestically, on both individuals and institutions. One of these is the operation of the criminal justice system. Measures aimed at "flattening the curve" such as social distancing and lockdowns, have resulted in significant disruption to bail, criminal jury trials and prisons. Although courts have acknowledged that the pandemic will be an issue of concern, they have been understandably reluctant to express general statements of principle detailing how it should be considered by courts. This article considers the impact of COVID-19 in the context of bail and sentencing, using the State of Victoria as an example. Through an analysis of Victorian Supreme Court bail and sentencing decisions between the period of February and August 2020, this article demonstrates that an overwhelming number of decisions categorise the pandemic as either exceptional or compelling circumstances for the purpose of bail, and as a mitigating factor for the purpose of sentencing. These decisions are of precedential value for lower courts and may also be relevant to other Australian and cognate jurisdictions. This analysis may also inform policymakers in developing criminal justice measures to appropriately deal with this and future pandemics.