JUDGES:	WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A.
WHERE HELD:	BENDIGO
DATE OF HEARING:	12 October 2006
DATE OF JUDGMENT:	12 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 244

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CRIMINAL LAW – Sentencing – Crown appeal – Three year delay between apprehension and sentence – Significant rehabilitation during period of release on bail – Application of principles in R v Cockerell (2001) 126 A Crim R 444 – Whether necessary to attribute blame for delay – Whether credit given for early pleas of guilty – Applicants re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant Tiburcy	Mr P.G. Priest, Q.C. with Mr T. Moisidis	Roman Lawyers
For the Applicant Gardner	Mr N.A. Hutton	Mike Wardell
For the Applicant Zeuschner	Mr T. Danos	Mike Wardell

WARREN, C.J.:

I invite the learned President to deliver the first judgment.

MAXWELL, P.:

These applications raise in stark terms the question of the sentencing implications of delay between apprehension and sentence, in circumstances where all three applicants were on bail for substantial periods. During that time, as I will elaborate, each made commendable progress in getting his life back together, moving from drug-taking and drug-dealing to abstinence from drugs, and staying away from those with whom they associated while involved in trafficking.

In my opinion, the sentencing of each applicant called for the application of the principles eloquently stated by Chernov, J.A. in R. v. Cockerell[1], where his Honour said:

“The courts have … recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels – see, for example, Miceli[2], Todd[3], Schwabegger[4], MWH[5], Blanco[6]. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. ... As Wood CJ at CL said in Blanco:[7]
‘ ... it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account in sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tiburcy

Details

AGLC: R v Tiburcy [2006] VSCA 244
Case: [2006] VSCA 244
Decision Date: 12 October 2006

CaseChat Overview and Summary

In the matter of the Crown versus Tiburcy, the dispute pertained to the sentencing process following a three-year delay between the defendant's apprehension and the imposition of sentence. The case was heard in the court of appeal. The legal issues before the court were whether it was necessary to attribute blame for the delay in sentencing and whether credit should be given for the defendant's early pleas of guilty, especially in light of the significant rehabilitation achieved during the period of release on bail. These considerations were informed by the principles set out in R v Cockerell (2001) 126 A Crim R 444.

The court examined the principles of sentencing as articulated in Cockerell, which emphasise the importance of timely justice and the benefits of early pleas of guilty. It was acknowledged that delays in sentencing can sometimes be attributed to the Crown, but the court also considered the broader context of the defendant's rehabilitation and the potential benefits to society. The court determined that credit should be given for the early pleas of guilty and the significant rehabilitation achieved, while also acknowledging the impact of the delay. This balanced approach ensured that the principles of justice were upheld, and the defendant was appropriately re-sentenced.

The court concluded that while delays in sentencing are generally undesirable, the specific circumstances of this case warranted a re-sentencing that took into account the defendant's early guilty plea and the rehabilitation achieved during the period of release on bail. The court attributed no blame for the delay but recognised the need to expedite the sentencing process in the future. The applicants were re-sentenced, reflecting the appropriate credit for their early guilty plea and the positive changes in their circumstances.

Orders