Area of Law – Sentencing

An Article about Delay in sentencing in criminal case

SENTENCING – Delay
Where there has been delay in bringing an offender to court, the delay may be taken into account in sentencing. Depending on the circumstances of the case, the delay may have a mitigatory effect upon sentence. Where the delay has been caused by no fault of the offender then the delay is more likely to be mitigatory.

Important considerations in the assessment of the consequence in terms of punishment and unfairness of ‘undue’ delay are the length of that delay, and its timing.The use that is made of the delay by a person being sentenced can also be a facor in their favour if the person has used the time to pursue rehabilitation.

“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

R v Todd [1982] 2 NSWLR 517

“There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in Todd [1982] 2 NSWLR 517 at 519 and 520 have not infrequently been adopted by this court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in Kane [1974] VR 759 at 767 have not infrequently been applied. Most particularly in the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganizing his life.”

R v Miceli [1998] 4 VR 588

“What is undue delay deserving of mitigation of punishment is essentially a matter of degree to which common sense is to be applied.”

R v Idolo [1998] VICSC 37

Delay no less important when been out on bail
“Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganizing his life. That is what happened here.”

R v Miceli [1998] 4 VR 588 Tadgell J at 591.

This was a case where His Honour, Judge Kimm said “I am not here to dispense mercy , I am here to dispense justice”.

The Judge said there had not been any such delay in dealing with the offender as should bring about any reduction in sentence.

Court of Appeal said there had been – interviewed Feb 95 , charged Feb 96 and case heard March 97. So from interview to Court was 2 years and one Month.

 

Date: 09/01/2009