Where delay between offending and sentencing is not caused by the prosecution and the offender was unaware of the investigation, the fairness limb of delay mitigation is not available, but the rehabilitation limb may still operate. A sentencing judge who gives full effect to rehabilitation achieved during the delay period does not err merely by failing to expressly articulate the delay principles from R v Merrett. Historical sentencing statistics, while of limited utility, may be used to assess whether sentences for historical offences fall within the range applicable at the time of offending.
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