Where a submission is made to a sentencing judge concerning the impact of COVID-19 restrictions on conditions of custody, a failure to advert to that submission in the sentencing reasons may give rise to an inference that it was overlooked, constituting House v The King error. However, a sentencing judge is not required to speculate about uncertain future impacts of the pandemic. On resentence, the onerous conditions of custody caused by the pandemic — including prolonged lockdowns, loss of in-person and AVL visits, and restricted access to programs and employment — may justify a finding of special circumstances and a reduction in the non-parole period.
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