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Criminal Law Blog NSW

The use of Discretion When Sentencing Criminals

It is an accepted rule in the conduct of criminal proceedings that all circumstances concerning the case must first be taken into consideration before a person, being held for trial, be deprived of his liberty.

Court’s that does not take into consideration all evidence will lead to a harsher penalty imposed. This act shall disenfranchise a huge section of the community.

Our courts have been mindful of these principles. The growing concern, however, falls on the fact that the legislature is planning to retreat from said principles and are intending to pass a law that shall increase sentences and remove judge’s discretion.

This move was prompted by the case of Jeffrey Gilham. In 1993, Gilham was charged by the court for the murder of his parents and his brother. During the trial, Gilham’s defence stayed the same which is that it was his brother who killed his parents and that he, out of rage, killed his brother after finding him standing over the bodies of his parents. In 1995, Gilham was sentenced to good behaviour for the murder of his brother.

A few years after, following an adamant campaign of his uncle, Gilham was retried and convicted of the murder of his parents. During the second trial, the court and the jury both agreed that Gilham set the scene and made it appear that it was his brother who killed both his parents.

On appeal, the Court of Criminal Appeals quashed his conviction for the murder of his parents and allowed him to post bail pending a resolution on whether he should undergo another trial.

It was said that the magistrates in the appellate court could not have possibly ruled over the case justly since they were not able to read the transcripts and review the evidence to determine whether the decision of the trial court to retry the case was sound. Moreover, the court’s reasons have not been published up to the present.

During the appeal, the defence turned in new evidence which was later exposed by the appellate court. Thus, there was no way for the appellate magistrates to know the ruling of the jury if said new evidence was presented to them during the re-hearing of the case. It is clear however that said evidence was compelling enough for the appellate court to quash Gilham’s conviction.

The issue now is whether or not Gilham can be retired by the DPP since he was already tried twice after a hung jury. The DPP acknowledges though that there is an insufficient basis for the success of a third trial.

A news article appeared this week intimating that DPP will pursue the insurance proceeds of $1,000,000 which he inherited from his parent's reasoning that said the amount was the proceeds of the crime. DPP may be successful with this endeavour since the weight of evidence is considerably lighter than that in criminal offences.

It is also not clear whether Gilmore will push through an action against the government for his imprisonment. Under the law, if Gilmore can prove that the police have lied, concealed evidence or misled the court, then the accused may be awarded damages. 

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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