The Court of Criminal Appeal held that where a sentencing judge expressly took into account the impact of COVID-19 on custodial conditions for one co-offender but made no reference to the same factor for the applicant, despite evidence and submissions on the topic, error was established as the factor was overlooked. On resentence, the Court refused to permit the applicant to invoke De La Rosa and Bugmy principles where experienced counsel had expressly disclaimed reliance on those principles at first instance, particularly where that concession led the Crown to abandon cross-examination of expert witnesses — applying Betts, DL and Zreika. The aggregate sentence was reduced from 14 years to 13 years with a reduced non-parole period reflecting the onerousness of custody and improved rehabilitation prospects demonstrated by additional evidence of post-sentence conduct.
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