The delays caused by the COVID-19 pandemic have caused major disruptions to the progress of matters in all courts in New South Wales. (Please see COVID-19 effects on court process and criminal justice in NSW.)

These extraordinary circumstances have also focussed attention on the state's prison population, particularly those people on remand waiting for their matters to be dealt with.

This raises two important issues - is it fair that people languish indefinitely in gaol waiting for their day in court? And while in gaol, how susceptible they will be to exposure to COVID-19?

People who are currently in gaol, making bail applications or being sentenced

Legal Aid NSW has released some resources to assist lawyers who have clients currently in gaol, making bail applications or being sentenced.

These resources also focus on vulnerable populations, including Aboriginal and Torres Strait Islanders, people with mental illness, the elderly and people with chronic physical health problems - all of whom are highly susceptible to contracting COVID-19.

Likelihood of COVID-19 entering NSW prison system

UNSW and the Kirby Institute were commissioned by Legal Aid NSW to answer a set of questions on what COVID-19 is, how it spreads and specifically how it and subsequent social/physical distancing regulations will impact the prison population.

Report on COVID-19 and the impact on New South Wales prisoners addresses the likelihood of COVID-19 entering a correctional centre and how it would be managed if it did so.

The report concludes the risk is high, given how the disease has spread through the wider community and the experience of overseas gaols.

Crowding in prisons conducive to spread of infectious diseases

As we know, prisoner numbers in NSW are at record levels (roughly 14,000), meaning more prisoners in close proximity, leading to crowding and high levels of "prison cell spatial density".

Close contact in gaols has been linked to the transmission of other infectious diseases such as tuberculosis, pneumococcal disease and infectious dermatoses.

The report concludes that correctional centres with overcrowding problems will find it difficult to contain the spread of COVID-19 and successfully isolate suspected or confirmed cases.

Modelling of likely spread of COVID-19 in immigration detention

A study of the likely spread of COVID-19 in immigration detention centres states that at the current rate of viral reproduction, between 40% to 80% of the immigration detention population could become infected.

Applying that to the NSW prison population would mean between 5,600 to 11,200 people could be affected. The report adds that if 500 of these cases were to require hospitalisation, then this would overwhelm the prison health and NSW health systems.

Reducing prisoner numbers to manage COVID-19 threat

Reducing numbers in gaol would help prison authorities to manage the COVID-19 threat by reducing prison cell spatial density and increasing physical distancing - a measure that has proved vital to containing the spread.

However, any decision to release prisoners should be based on the risk they pose to the community and their health status (the elderly, those with chronic conditions, intravenous drug users).

Given the poor health outcomes for Aboriginal and Torres Strait Islander people, the report recommends that they be given "priority for consideration" of early release.

COVID-19 lockdowns, quarantines and prisoner mental health

COVID-19 and the mental health problems facing prisoners is the theme taken up by Dr Andrew Ellis, forensic psychiatrist, in his report commissioned by Legal Aid NSW, COVID-19 and mental health issues for NSW prisoners.

Dr Ellis raises the issue of how quarantining might impact prisoners' mental health.

Studies have shown that quarantining may lead to greater risk of developing psychiatric disorders or a worsening of an existing condition. Being isolated in a cell would also exacerbate the risk.

Lockdowns, quarantines and reduced numbers of mental health staff in gaol caused by the COVID-19 physical distancing restrictions could contribute to the worsening mental health of many prisoners.

Cognitive disorders and mental illness in the prison population

Dr Ellis notes that people with major mental health illnesses and cognitive disorders such as schizophrenia, bipolar disorder and acquired brain injury are overrepresented in the prison population.

These prisoners are more vulnerable and more liable to commit suicide or be assaulted. They are also more likely to break the rules and be more violent towards other prisoners. Their treatment is also "specialist and complex" and can be difficult to administer in the gaol setting at the best of times.

Diversion programs under the Mental Health Act

Dr Ellis notes that these prisoners can be dealt with under diversion programs, as set out in mental health legislation, specifically section 32 of the Mental Health (Forensic Provisions) Act 1990.

Given the current health emergency, Dr Ellis strongly suggests that this would be a better way for courts to deal with this group of offenders. He cites studies that show diversionary programs are more effective "on average" than the judicial system, and even more so if the delivery of mental health treatment in gaols has been reduced.

Supervised care in the community, he argues, is likely to lead to long-term benefits, including a reduction in re-offending.

For lawyers and their clients, this is an important point and one worth considering at this time if the person meets the criteria set out in section 32. (Please see Section 32 mental health treatment plans - NSW Supreme Court clarifies requirements.)

The report also addresses the effects of prolonged isolation and segregation in custody (10 days or more) and how it can lead to delusions, hallucinations, depression and PTSD. There is also the risk of deteriorating mental health conditions because exercise, education, work and visits may have been suspended or reduced.

If you are making a bail application or being sentenced during coronavirus

Jeremy Style from the Aboriginal Legal service and the Public Defenders have also produced two resources for lawyers to consider if their clients are being sentenced and facing full time custody or making a bail application.

Outline of submissions relevant to sentence - COVID-19 and Guideline submissions on the relevance of COVID-19 to bail applications set out the sorts of considerations lawyers may put forward when their clients are facing full time custody or applying for bail in light of the COVID-19 environment.

Fresh bail application recommended if bail has been refused

Generally, the Local Court has been considering full time custodial sentences very closely, given the likely risks of exposure to COVID-19 to people entering custody.

The papers set out some submissions that can be made, particularly if the person is in a vulnerable group - the elderly, Aboriginal or Torres Strait Islander, has a mental illness or chronic physical condition such as heart disease, undergoing chemotherapy or supressed immune system.

Given the delays caused by the current health emergency in getting matters finalised, if the person is in custody and bail is refused, it is worth making a fresh bail application in light of all the reasons set out above.

For the simple reason - justice delayed is justice denied.

Mark Warren
Criminal law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.