There has been a long delay between the offending and now. Delay is problematic in cases such as this. As has been observed by the Courts, delay is not uncommon in this type of case because victims are often loath to come forward. The real importance of delay, it seems, is what has occurred during the period of the delay. The principles that I must apply in this context ... were stated by Callaway JA in R v MWH [2001] VSCA 196 at [18] ...:
'It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed
In my view, these principles concerning delay are clearly applicable in your case. In a long delay that has occurred, you ... have already been sentenced in relation to similar offences a decade ago and have undergone comprehensive rehabilitation to the extent that, on the evidence before me, which I accept, you are no longer diagnosable as a paedophile and you are unlikely ever to re-offend. The delay is also important in your case because, on the evidence, during the period of delay you have developed victim empathy and a genuine remorse. Thirdly, the delay is important in your case because you are now a man in your 60's. That means that, in my view, you are less likely to re-offend. Also, you are now suffering a level of ill health. However, in the circumstances of this case, whilst I regard your state of health as being a relevant factor, I do not regard it as a significant factor by any means, in reducing sentence. There is no evidence before me that your state of your health will be likely to render your imprisonment any more harsh than it would be for the ordinary healthy prisoner or that you are likely to suffer any aggravation of your illness by virtue of your incarceration. However, I do take it into account as being a difficulty that will mar your period in gaol. It is a matter that is to be given some weight by way of mitigation, but not a great deal in the circumstances of this case. So, I take into account the delay and am cognisant of what the Courts have said ... about the measure of understanding and flexibility that must be applied in cases where there has been a significant time between offending and sentence.