Monday, 26 October 2009

On the lam

People who turn themselves into the authorities after having absconded a long time ago can pose a difficult sentencing problem.

This is particularly true where the offences involved are relatively minor, and the fugitive has been living a blameless life on the lam (and it is lam; life on the lamb sounds very uncomfortable). On the one hand, the courts don't want to reward someone for having skipped bail. On the other, some of the purposes of sentencing can seem a little less relevant after the passage of time.

(I was recently contacted by a man returning from living in NSW, having fled this jurisdiction as a teenager. Now over thirty with a wife, child, and job requiring him to move down to Melbourne, he wanted to know if he was going to be sentenced to the juvenile detention that had led him to flee in the first place. He feared (probably quite rightly) that being twice the age of juvenile offenders if he was locked up with them he could quite easily become a target for their abuse!)

In R v Berry [2009] VSCA 219, the Court of Appeal considered the case of Russell Berry. He had been convicted of a string of burglaries committed while a heroin addict during the late 90s. They were committed as part of a group of like-minded individuals, were fairly organised and netted hundreds of thousands of dollars.

Mr Berry jumped bail before being sentenced in May 2001. His period dodging authorities came to an end when he handed himself in at a police station on Christmas Day 2006. It was accepted by the sentencing court that he'd made significant improvements in his life, and it was this that had led him to the point of turning himself in.

What made it particularly difficult as a sentencing exercise was that Berry's co-offenders had not absconded, but had answered their bail and been sentenced years ago. If Berry's sentence was significantly reduced as a result of his self-rehabilitation, might his co-offenders (and anyone else awaiting sentence) be better off doing what he did?

Redlich JA:

33 In R v Thompson the appellant absconded while on bail and was not apprehended for nearly three years. The evidence put forward on the plea demonstrated the appellant had used those three years to undertake a ‘significant change in lifestyle’. This included establishing a new and stable relationship, taking employment and making the most of the opportunities to fully stabilise his life. Street CJ held that the appellant could not claim the full benefit of this in as much as the freedom he used in order to rehabilitate himself was freedom that flowed from his having absconded from bail.

34 It would be an undesirable precedent for courts to encourage persons to abscond from bail and rehabilitate themselves and then come forward and seek to have that taken into account in a significant way when they stand for sentence. To allow leniency in such circumstances would reward the failure to answer bail and would be contrary to the public interest. But as Street CJ observed:

rehabilitation already accomplished will of course always be taken into account however it may have arisen but when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time.

35 Thompson was referred to with apparent approval by Phillips CJ in the unreported decision of Stephenson. It was cited by Winneke P in R v Whyte in support of the conclusion that delay that is fairly attributable to the accused will result in ‘less credit’ being given for rehabilitation established during that period. In R v Mundy Maxwell P, with whom Buchanan and Vincent JJA agreed, said that the mitigating effect of rehabilitation during a period of delay must be greatly reduced where it is the offender’s absconding which has created the delay and enabled him to demonstrate a period of law-abiding activity in the intervening period. The President and Vincent JA also adverted to the fact that, between co-offenders, rehabilitation during a period of self-created delay could not advantage the absconder over those who complied with their bail conditions. The latter consideration is relevant in the present circumstances.

36 I would adopt the approach taken by Street CJ in Thompson and treat any rehabilitation during such a period as having a significance that might be reflected by a non-parole period which is something less than that which might otherwise have been appropriate had the offender been dealt with at an earlier date. Such an outcome appears consistent with the observations made in Mundy.

Berry stands for the principle that rehabilitation always remains relevant to penalty. It doesn't attract the same amount of weight that it would if the accused went about rehabilitating themselves lawfully, and for reasons of parity, it cannot operate as mitigation where co-offenders who had not absconded were sentenced by the courts long ago.

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