An ailing, elderly man behind bars for at least 18 years for sexually abusing four girls has failed to get his sentence cut due to the COVID-19 pandemic.
Maximo Cabezuela was found guilty in 2018 by a NSW District Court jury of 21 counts of indecent assault, three of carnal knowledge of a girl under 10, one of rape and two of buggery.
The victims were aged between three and 13 at the time of the abuse which took place over many years.
The 80-year-old was sentenced in 2019 to 28 years in jail with a non-parole period of 18 years.
The NSW Court of Criminal Appeal on Monday rejected his claim the sentence was "manifestly excessive" due to a sentencing error and due to a "fresh" appeal ground related to the COVID-19 pandemic.
Cabezuela's lawyers said his advanced age and poor health meant he was vulnerable if the virus infiltrated the prison system.
In any event, they said the crisis meant he would be classified as an "at-risk" inmate and subject to additional isolation, over and above the difficulties encountered by all inmates arising from prison lockdowns due to COVID-19.
The court was told Cabezuela's usual movements are now restricted and he's isolated 24 hours a day in a block with other "at-risk" inmates.
No personal visits are allowed and only doctors and staff can enter the prison.
Justice Michael Walton, siting with Justices Clifton Hoeben and Ian Harrison, said this was not a case where COVID-19 may have impacted upon the sentence imposed.
"This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system."
The sentencing judge gave considerable weight to his age and health.
The nature of the offending was "of such seriousness" that even if a greater weight was given to the effects of COVID-19 the sentence wouldn't differ, Justice Walton said.
"For completeness, I note that the evidence before the court from both parties suggested that, despite initial fears, the prison system has not been the source of any outbreaks of COVID-19, such as the type that has occurred, for example, in aged care facilities," the judge said.
"It may be accepted that the appellant would be anxious as to the present circumstances but the risk which he faces are moderated by the controls introduced by Corrective Services and the vigilant screening of staff serving prisons."