Written by Andrew Fraser
June 30, 2016
Two recent cases – one in Victoria and one in the ACT – show the very great importance that courts place on efforts made by offenders at rehabilitation.
It is an area hard to underestimate for those awaiting sentence: it can mean the difference between going to prison or staying in the community.
The offender in the Victorian case of Fattah v The Queen, had pleaded guilty to one charge of trafficking methamphetamine and was sentenced to three years and nine months’ imprisonment, with a non-parole period of two years.
The Court of Appeal, in a decision on 18 March 2016, decided to wholly suspend that prison sentence, partly because of the “extraordinary delay” of almost three years between offence and the offender’s arrest and charge, and the rehabilitation he had undertaken in that time, and since.
“During that time, [the offender] rehabilitated himself in a most impressive fashion, a process which continued to the date of sentence, and it would be contrary to the public interest for that process to be disrupted by his incarceration now, more than five years after the offending,” the Court (Maxwell P, Redlich and Priest JJA) said.
The Court noted that the offender’s barrister had told the original sentencing judge that “after [the offender’s] return from Lebanon in 2012, he had remarried and resumed full-time employment as a truck driver. He and his second wife had a child, and together cared for the four children from their respective prior marriages.
“[The offender’s] wife gave evidence on the plea that he was a good father and a very hard worker, and did not associate at all with the people he had been involved with in 2010–11. There was no challenge to this evidence.”
The Court concluded, “The process of rehabilitation began, it seems, almost as soon as the offending stopped, and it continued throughout the five-year period up to the date of sentence.”
The Court noted that the offender’s barrister had quoted earlier court judgments, and it particularly endorsed that part of the 2001 case of Cockerill, which said, “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.”
The ACT Court of Appeal considered similar issues in a decision brought down on 1 April 2016 (R v DK) where a Crown appeal against the imposition of a wholly suspended sentence was dismissed.
The Court (Refshauge, Penfold and Perry JJ) said, “The Crown’s implication, that once rehabilitation has been achieved it is a permanent state, seems remarkably simplistic. Rehabilitation achieved before sentencing could, in the case of many offenders, be seriously compromised by a subsequent custodial sentence.
“To the extent that an offender’s rehabilitation is relevant in deciding whether to suspend a sentence, preserving rehabilitation that has been achieved would seem to deserve the same consideration as furthering rehabilitation that seems achievable. We note also that even where rehabilitation appears to have been achieved, some ongoing supervision may be useful in maintaining that rehabilitation.”
If you are facing a serious criminal matter, you should get advice from a specialist criminal lawyer. The team at Armstrong Legal deal only in criminal and traffic law and can represent you in both sentencing and defended matters.