An offender seeking amelioration of a custodial sentence on account of COVID-19 must place current and reliable evidence before the sentencing court; it is not sufficient to point to the existence of the virus generally or to cite decisions handed down at the height of the pandemic. The evidentiary position is not fixed and must reflect the circumstances at the time of sentencing. In sentencing proceedings where no direction under s 4 of the Evidence Act 1995 (NSW) has been given, the common law of evidence applies, and sentencing courts may rely on matters not in dispute between the parties.
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