NSW District Court considers danger caused by COVID-19 outbreak in prison extra curial punishment

R v Zerafa [2021] NSWDC 547

Summary

During a sentencing hearing, the New South Wales District Court (the District Court) considered the “extremely concerning” conditions in which Mr Storm Leigh Zerafa was detained while on remand at the Parklea Correctional Centre when determining his head sentence (the maximum sentence for Mr Zerafa to serve).

Despite repeatedly testing negative for COVID-19, Mr Zerafa was detained in a cell with his COVID-19 positive cellmate and was isolated from the general population of the prison. He was then detained in an ICU wing of the privately-run prison facility, which was established for the purpose of quarantining inmates who had tested positive to COVID-19.

Background

Mr Zerafa appeared before the District Court for sentencing in relation to three offences under the Crimes Act 1900 (NSW) and the Firearms Act 1996 (NSW). In determining the head prison sentence, District Court Judge Colefax SC considered Mr Zerafa’s affidavit dated 6 October 2021, which detailed the conditions in which Mr Zerafa was held on remand. The Crown did not challenge the contents of the affidavit and the Judge accordingly accepted its contents as true.

Six weeks prior to the sentencing hearing, Mr Zerafa’s cellmate tested positive for COVID-19. Despite testing negative to COVID-19 himself, Mr Zerafa was kept in a cell with his COVID-19 positive cellmate for approximately four weeks, until he was released from custody. Mr Zerafa and his cellmate were isolated from the general population for approximately three weeks. During this time, Mr Zerafa wore a mask 24 hours a day due to his fear of contracting COVID-19.

Three weeks prior to the sentencing hearing, Mr Zerafa and his cellmate were moved to an ICU wing within the prison. Mr Zerafa understood that this wing was a special COVID-19 quarantine accommodation. In his affidavit, Mr Zerafa explained that he could “hear COVID-19 positive inmates coughing loudly, yelling out in pain and calling out to the Correctional Officers to give them Panadol”. There were about 40 people detained in this ICU wing. Ten other people, like Mr Zerafa, were detained in this wing despite testing negative to COVID-19.

When Mr Zerafa asked a prison guard when he would be released back into the general population, he was told: “[y]ou will be sent back when you catch COVID-19 and then get better”. During the six weeks he was confined, Mr Zerafa made repeated requests to get vaccinated every five days when he was tested for COVID-19 by the nurses. His questions about when he would be vaccinated went unanswered, and he became concerned that he would never be vaccinated. By the time of the sentencing hearing, Mr Zerafa had received his first dose of the Pfizer vaccine.

Mr Zerafa’s combined time in the cell with his COVID-19 positive cellmate and in the ICU wing meant he was confined to his cell for 24 hours a day for six weeks. He was prohibited from being let out of his cell to exercise. In his affidavit, Mr Zerafa explained that the television was all he had for entertainment. His meals were delivered to him, where he ate them alone. Mr Zerafa reported “feeling depressed and lacking energy since being confined to [his] cell” and felt that there was “nothing to look forward to each day”.

Mr Zerafa has difficulty breathing due to problems with his lungs, which made him concerned about the impact of catching COVID-19. Moreover, Mr Zerafa has Hepatitis C and caught pneumonia twice in the last few years. Mr Zerafa had also been diagnosed with a number of mental health conditions, including Attention Deficit and/or Hyperactivity Disorder (ADHD), depression, anxiety, substance abuse disorders, post-traumatic stress disorder (PTSD) and antisocial personality disorder.  

Sentencing

The District Court considered the matters outlined in Mr Zerafa’s unchallenged affidavit to be particularly concerning when taking into account Mr Zerafa’s severe mental and physical health conditions. Judge Colefax stated that “the circumstances in which you have been detained for the last 2 months have been extremely confronting and will be taken into account, as in the nature of extra curial punishment, in fixing the head sentence…”.

By way of background, the Crimes (Sentencing Procedure) Act 1999 (NSW) creates an exhaustive list of reasons that a Judge may impose a sentence, being punishment, deterrence, community protection, rehabilitation, denunciation, recognition of the harm done to the victim of the crime and the community, or any combination of these purposes. Extra curial punishment is a mitigating factor that can also be considered by a judge. This occurs where a person experiences a negative consequence from committing the offence or during the investigation or prosecution of the offence.

His Honour considered Mr Zerafa’s detention conditions to be even more concerning in light of the fact that this was “not an isolated case involving Parklea Correctional Centre” and cited R v Michael Brown, (unreported) 8 October 2021. In that case, Mr Brown was kept in a cell with his COVID-19 positive cellmate for six days after that test result was known, before eventually contracting COVID-19 himself. Mr Brown repeatedly explained to staff that he had serious underlying health conditions. In the context of Mr Brown’s bail application, Justice Ierace of the Supreme Court of New South Wales considered these circumstances were important in determining the “confidence one might have as to whether the applicant could be treated in a responsible and appropriate fashion within facilities of the Department of Corrective Services”. Justice Ierace ultimately held that if Mr Brown were to remain in custody, the Court could not be confident that he would be properly treated for his medical conditions. Mr Brown was granted bail, subject to some conditions.

In Mr Zerafa’s sentencing hearing, the Judge considered that the maximum penalty for each of the three offences was respectively 14 years imprisonment (with a standard non-parole period of four years), 12 years imprisonment (with no standard non-parole period) and 25 years (with a standard non-parole period of 7 years). The Judge applied a 25 per cent discount as Mr Zerafa pleaded guilty at the first available opportunity. His Honour also made a finding of special circumstances to vary the ratio of the non-parole period to the head sentence due to Mr Zerafa’s age (he was 27 at the time of sentencing), risk of institutionalisation and prospects of rehabilitation. While the Judge accepted that holding Mr Zerafa with people infected with COVID-19 constituted extra curial punishment which would impact the head sentence, his Honour did not specify the precise discount applied as a result of this consideration.

Mr Zerafa was ultimately sentenced to seven years in prison with a non-parole period of four years.  

Commentary

More than 170 people detained at Parklea Correctional Centre tested positive for COVID-19 by September 2021, with one person dying from the virus. On 22 October 2021, Corrections Minister Mr Anthony Roberts announced the Department of Communities and Justice would initiate an independent inquiry exploring the allegations made by Mr Zerafa and another person regarding their experiences at Parklea Correctional Centre.

The full text of the decision can be found here.

Olivia Freeman is a Solicitor at King & Wood Mallesons.