R v Vakatini  QSC 107
Vakatini is an interesting Queensland decision that deals with the effect of COVID-19 on the sentencing process. It concerns a defendant who elected for his matter to proceed to sentence rather than seek an adjournment, knowing the restrictions that would be faced in the prison environment because of COVID-19.
The accused was essentially transporting drugs in the role of a courier from Sydney to Fishery Falls between Innisfail and Cairns.
He was intercepted by police whereupon they located a single clip seal bag inside a tissue box on the front passenger seat. It was 71.3% pure methamphetamine with the gross weight of 139.457 g and a pure weight of 99.432 g. The gross wholesale value of the intercepted drugs was said to have been greater than $10,000 although if it was broken up into street value sales it would be expected to be higher.
The accused man was 26 at the time of the offence and 27 at time of sentence.
Counsel for the Defence noted that the accused man had been classified, incorrectly, as a police informant and had been threatened and assaulted. He had sold his vehicle to pay the shortfall in the lost drugs.
His honour, Justice Henry determined that the appropriate head sentence was three years imprisonment and that due to good personal circumstances he would ordinarily set a parole release date earlier than the halfway point.
Effect of COVID-19 on Sentencing Process
At page 4 of the decision, His Honour discusses the effect of COVID-19 virus on the sentencing process. His Honour noted that courts are presently reluctant to finalise a sentence where a defendant is not in custody and is complying with their bail conditions. This is because of the challenges presented for corrective services with an incoming prisoner. Justice Henry held that it was to the defendant’s credit that he was prepared to face “your punishment in the present era, and wanted to press on for sentence so that you could get your punishment over and done with”.
His honour went on to say that the decision to proceed to sentence notwithstanding the current climate: “Fortifies my view about personal deterrence being a relatively low rating consideration in the present circumstances”.
There is presently an obligation on authorities to manage the risk posed by the COVID-19 virus. The jails have moved to a stage three restrictions which has resulted in:
- all but essential jail personnel and approved health officials and contractors being excluded from the jails.
- visits to a prisoner cannot occur.
- Incoming prisoners need to be isolated for two to three weeks.
This will involve a much more significant degree of isolation than would be experienced in the normal way as part of the general jail population.
Justice Henry determined that it was just that a greater than normal moderation of the actual jail time component of the sentence or to occur. There is a prospect that a jail could move to stage 4 restrictions.
But for Covid-19 restrictions, His Honour would have arrived at parole release date ‘probably closer to the nine months mark than the 12 month mark’.
In the end upshot though, allowing for the additional moderation to which I have just referred, I arrive at the view that it ought to be, set at about the six and a half month mark, which would represent a reduction of about a quarter from the nine month mark…R v Vakatini  QSC 107 per Henry J
The court was careful to note that the sentencing process cannot be approached mathematically. The Court also referred to the Defendant having to serve a substantial, if not all of their likely period of actual imprisonment during the era of stage 3 restrictions with the overarching prospect of state 4 restrictions occurring.
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