R v Wymond - [2013] SASCFC 12

Supreme Court of South Australia
(Court of Criminal Appeal)
R v WYMOND; R v EVANS
[2013] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Blue)
14 March 2013
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - DEFERRAL OF AND REMAND FOR SENTENCE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
Application by the Director of Public Prosecutions for permission to appeal in two matters – each against a Judge’s decision to defer sentencing pursuant to s 19B of the Criminal Law (Sentencing) Act 1988 (SA) – whether the Judge erred in exercising the discretion to defer sentencing in the circumstances.
Held as to respondent Wymond:
1. There was no real likelihood that successful participation in a rehabilitation program would materially change sentencing considerations and affect the sentence (at [39]).
2. The rehabilitation program did not satisfy the requirements of s 19B (at [41]).
3. The Judge could not be satisfied that the preconditions of s 19B(3)(b)(ii) were met (at [42]).
4. The Judge erred in exercising the discretion to defer sentencing (at [38]-[43]).
5. Permission to appeal granted – appeal allowed – order deferring sentence set aside – matter remitted to the sentencing Judge to proceed to sentence without further deferral (at [1], [34]-[37], [49]).
Held as to respondent Evans:
1. There was no real likelihood that successful participation in the proposed psychological treatment would materially change sentencing considerations and affect the sentence (at [45]).
2. The Judge erred in not imposing a condition of supervised bail (at [47]).
3. The proposed treatment was not sufficiently structured to justify the exercise of the discretion (at [46]).
4. Permission to appeal granted – appeal allowed – matter remitted to the sentencing Judge to proceed to sentence without further deferral (at [1], [49]).
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 19B; Mental Health Act 2009 (SA); Acts Interpretation Act 1915 (SA) s 19(2); Statutes Amendment (Intervention Programs and Sentencing Procedures) Bill 2005 (SA); Bail Act 1985 (SA) s 3, s 11, s 21B; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA), referred to.
R v Trindall (2002) 133 A Crim R 119; R v Tindall (1994) 74 A Crim R 275; Griffiths v The Queen (1977) 137 CLR 293, applied.
R v Kear (1977) 75 LSJS 311, discussed.
The Ombudsman v Moroney [1983] 1 NSWLR 317; R v McCann (1997) 70 SASR 1; R v Padberg (2010) 107 SASR 386; R v Ohmer [2011] SASCFC 44; R v Riddle (2012) 113 SASR 314, considered.

R v WYMOND; R v EVANS
[2013] SASCFC 12
Court of Criminal Appeal: Kourakis CJ, Vanstone and Blue JJ

THE COURT: The applications by the Director of Public Prosecutions for permission to appeal in both matters raise important questions about the exercise of the power to defer sentence conferred on sentencing courts by s 19B of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The Director should be given permission to appeal in both cases so that the proper place of s 19B of the Sentencing Act in the sentencing process might be further elucidated and because of the public importance of the question. Moreover, in both matters the decisions to defer sentencing were plainly wrong. We would grant permission and allow the appeals. Our reasons follow.
Relevant Factual Circumstances - Wymond
Wymond was convicted of eight counts of aggravated possession of child pornography committed between 30 January 2005 and 3 September 2011. The maximum penalty for an aggravated offence of possessing child pornography is seven years. Wymond pleaded guilty when he was first arraigned on 4 June 2012. The matter was called on for sentencing submissions on 4 September 2012 on which occasion the Judge adjourned sentencing for 15 months to 2 December 2013 pursuant to s 19B of the Sentencing Act. It is implicit from the Judge’s reasons for the adjournment and the length of the adjournment that the Judge considered that the purpose of the adjournment was to allow Wymond to participate in an intervention program and that the Judge proceeded pursuant to s 19B(1)(d) of the Sentencing Act.[1] During the period of the adjournment Wymond remained on bail which had been granted in the Magistrates Court. The Judge did not impose, as a condition of bail, an obligation requiring Wymond to attend at Owenia House or to participate in an intervention program.
[1] The Judge adjourned sentencing for 15 months in circumstances in which s 19B(2) and (3) provide that an adjournment can only be granted for more than 12 months if the defendant is, or will be, participating in an intervention program and otherwise the defendant would be prevented from completed it.
Wymond admitted to police that he had viewed and possessed child pornography over a period of 16 years. When his home was searched on 2 September 2011, Wymond told police that his offending “never hurt anybody”. The declarations show that 22,148 images and 3,918 videos were stored on Wymond’s computer equipment. A preliminary review of those images and videos conducted by a detective from the Sexual Crime Investigations Branch showed that the majority were, in his opinion, “high level aggravated child exploitation material”. Of the sample of 1,000 images and 50 videos selected by the detective for closer analysis, almost all depicted children who appeared to be under the age of 14 years. Wymond, by his plea, acknowledged that he knew that at least some of the images depicted children who were, in fact, under the age of 14, but before adjourning the proceedings the Judge did not make any findings on the detective’s analysis of the content of the material and Wymond’s knowledge or belief about the ages of the children depicted.
Wymond attended Owenia House (formerly known as the Sexual Offenders Treatment and Assessment Program) between the time of his arrest in September 2011 and sentencing submissions in September 2012. He had attended four of an anticipated 50 weekly sessions as part of a program which is usually completed over an 18 month period. A report provided by the Director of Owenia House, Dr Louis, indicated that Wymond had little insight into his offending. Dr Louis reported that a similar program to the one offered by Owenia House was available in prison. In the course of submissions, the Judge questioned the correctness of that statement but Dr Louis’ report was not contradicted by other material.
The Judge’s reasons implicitly treat the Owenia House program as an “intervention program” within the meaning of s 19(1)(d) and s 3 of the Sentencing Act.
Wymond was 58 years old at the time of sentencing. He is married with three adult daughters. He has no previous convictions.
Relevant Factual Circumstances – Evans
The offence of arson was committed by Evans in September 2011. He pleaded guilty at his first arraignment on 25 June 2012. The maximum penalty for arson is life imprisonment. Sentencing submissions proceeded on 24 August 2012. On that date, the Judge adjourned the sentencing of Evans for 12 months to 25 June 2013 pursuant to s 19B of the Sentencing Act. It is apparent from the Judge’s reasons for the adjournment and the length of the adjournment that the Judge considered that the purpose of the adjournment was to assess Evans’ capacity and prospects for rehabilitation and that the Judge proceeded pursuant to s 19B(1)(a) of the Sentencing Act. During the period of the adjournment Evans remained on bail which had been granted in the Magistrates Court. The Judge did not impose, as a condition of bail, an obligation requiring Evans to undertake counselling or to participate in a rehabilitative program. In May 2011 Evans and his partner, SL, decided to sell their home. At about that time, Evans’ abuse of alcohol and drugs was increasing dramatically and ultimately led to the breakdown of his relationship with SL. Evans was detained under the Mental Health Act 2009 (SA) on two occasions in August 2011 but he was subsequently discharged because his condition was caused by drug intoxication and not an underlying mental condition. Evans has a long history of polydrug abuse including amphetamines.
The house insurance had been cancelled in August 2011 because Evans and SL had fallen into arrears on their mortgage payments. Evans was unaware that the policy had been cancelled. On 9 September 2011 Evans lit several fires in the house. He took steps to give the appearance that the fire was caused by an electrical fault. There was substantial damage to several rooms of the house. Even though the house was later boarded up, offenders took the opportunity to loot everything of value in the house. The offence led to SL’s bankruptcy.
Evans claimed to have very limited recollection of what had happened but suggested that the offence was committed to excite sympathy from friends and family and out of frustration. However, the surrounding circumstances of the separation, and certain statements repeatedly made by Evans to SL, support an inference that Evans set alight to the house as part of an insurance fraud. The resolution of that contested factual issue will necessarily have a significant bearing on the ultimate sentence.
Evans was 34 years old at the time of the offence. He had prior convictions for dishonesty and a history of refusing to observe court orders. In her witness statement, SL described Evans as unpredictable and prone to angry rages when affected by drugs.
Between January 2012 and May 2012, Evans attended a detoxification program followed by a live in program. He abandoned the live in program because he believed that he was not receiving as much counselling as he should have been. Nonetheless, Evans had abstained from drugs and alcohol, save for several relapses with alcohol, since January 2012.
Evans attended a forensic psychologist for the first time on 8 August 2012 to be interviewed for the purpose of a forensic report requested by his solicitor. Evans was diagnosed with a mixed anxiety and depressive disorder in the context of post polydrug dependencies. The psychologist reported that Evans was immature and had poor planning capacity. The psychologist suggested that Evans be referred by his general practitioner to a psychologist for counselling through a Medicare funded health plan. Evans attended his first appointment with a psychologist under the health plan on 21 August 2012, the day before submissions were made.
Section 19B – Relevant Considerations
Section 19B of the Sentencing Act provides:
19B—Deferral of sentence for rehabilitation and other purposes
(1)A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—
(a)     for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or
(b)     for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or
(c)     for the purpose of assessing the defendant's eligibility for participation in an intervention program; or
(d)     for the purpose of allowing the defendant to participate in an intervention program; or
(e)     for any other purpose the court considers appropriate in the circumstances.
(2)As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum).
(3)A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that—
(a)     the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which his or her offending arose; and
(b)     if the proceedings were not adjourned for such a period—
(i)the defendant would be prevented from completing, or participating in, the intervention program; and
(ii)the defendant's rehabilitation would be prejudiced.
(4)In considering whether to adjourn proceedings for a period exceeding the usual maximum, a court is not bound by the rules of evidence and may (in particular) inform itself on the basis of a written or oral report from a person who may be in a position to provide relevant information.
(5)A person who provides information to the court by way of a written or oral report is liable to be cross-examined on any of the matters contained in the report.
(6) If a statement of fact or opinion in a report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.
(7)This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.
The power to adjourn a sentencing hearing pursuant to s 19B of the Sentencing Act is limited to an adjournment for one of the prescribed purposes. The power cannot be exercised for any other purpose. A Judge should clearly identify the particular purpose for which an adjournment is sought before exercising the power. The legislature has not expressly prescribed the considerations relevant to the exercise of power to defer the sentencing of an offender for those purposes. However, the relevant considerations can be discerned from the particular purpose for which an adjournment is proposed; hence the need to identify clearly that purpose.
The heading to s 19B of the Sentencing Act, “Deferral of sentence for rehabilitation and other purposes”, does not form part of the enactment[2] but it is nonetheless available as an extrinsic aid to interpretation.[3] The purpose of the adjournment is to better inform the exercise of the court’s sentencing discretion in selecting the most appropriate course from amongst the existing sentencing options. So much is clear because s 19B empowers a court to “make an order adjourning proceedings”. The proceedings adjourned are the sentencing proceedings which follow upon a finding of guilt. An adjournment given pursuant to s 19B of the Sentencing Act must be ancillary to the sentencing process.
[2] Acts Interpretation Act 1915 (SA) s 19(2).
[3] The Ombudsman v Moroney [1983] 1 NSWLR 317 at 323-325 per Street CJ and 333 per Moffitt P.
The supervised treatment or rehabilitation programs contemplated by s 19B of the Sentencing Act are not alternative sentencing options. The convicted person may, to some extent, be treated or rehabilitated by his or her participation in the program but the statutory purpose of that participation remains that of more fully informing the court before it proceeds to sentence.
Next, it is necessary to say something about the meaning of the phrase “intervention program”. An adjournment for the purpose of assessing eligibility for participation, or allowing participation, in an intervention program is the subject matter of two of the four specific grounds on which an adjournment might be granted. Subparagraphs (c) and (d) of s 19B(1) form a couplet: the first addresses assessing a defendant’s eligibility for participation in an intervention program; whereas the second addresses allowing the defendant to participate in an intervention program. An adjournment for the purpose of assessing eligibility would normally be relatively short and be a preliminary step towards the possibility of a further and perhaps longer adjournment for the purpose of allowing the defendant to participate in the intervention program. An intervention program is defined by s 3 of the Sentencing Act:
intervention program means a program that provides—
(a)     supervised treatment; or
(b)     supervised rehabilitation; or
(c)     supervised behaviour management; or
(d)     supervised access to support services; or
(e)     a combination of any one or more of the above,
designed to address behavioural problems (including problem gambling), substance abuse or mental impairment;
A program means more than recurrent treatment; the word “program” must be given some work to do. The word “program” connotes a plan and structure in accordance with which the treatment, rehabilitation, behaviour management or support services are provided. It connotes an objective to which those services are directed. A series of medical consultations or other sessions is not, in itself and without more, a program. The Second Reading Speech of the Attorney-General on the introduction of the Statutes Amendment (Intervention Programs and Sentencing Procedures) Bill 2005 (SA) shows that the amendments were made to provide a statutory basis for the participation of defendants in existing and future programs established or funded by the executive government. The programs were described as intensive programs designed to help defendants deal with the underlying cause of their criminal behaviour.[4] We do not mean to suggest that only government established programs fall within the definition of intervention programs. Rather, programs of the kind which Parliament had in contemplation are structured intensive programs directed towards treating criminogenic conditions.
[4] Parliament of South Australia, Parliamentary Debates, Hansard, Statutes Amendment (Intervention Programs and Sentencing Procedures) Bill, Second Reading Speech, 22 September 2005: “it reinforces that the bill does not create an entitlement to intervention nor oblige courts to offer it and that the bill is not intended to change sentencing principles about the weight to be given to the rehabilitation of offenders”.
The adjectival qualification of the services as “supervised” is also significant. An adjournment pursuant to s 19B of the Sentencing Act for the purposes of allowing a defendant to participate in an intervention program can only be ordered along with a grant of bail.[5] Complementary amendments to the Bail Act 1985 (SA) (the Bail Act) were made at the same time as the enactment of s 19B of the Sentencing Act.[6] The Bail Act provides that supervision by an officer of the Department of Correctional Services may be ordered as a condition of bail.[7] Section 21B of the Bail Act authorises a court to impose a condition   that the person released on bail undertake an intervention program. An intervention program is defined in the same way as it is under the Sentencing Act. The Bail Act and the Sentencing Act must be read in pari materia. The intervention programs envisaged by both Acts are one and the same. The intervention program manager, who is a Courts Administration Authority employee,[8] has a responsibility to oversee intervention programs in which defendants participate and to co-ordinate the implementation of court orders relevant thereto. Reading s 19B of the Sentencing Act in pari materia with the provisions of the Bail Act, we construe the word “supervised” to refer to supervision by the Department of Correctional Services under the bail agreement into which a defendant, whose sentencing is to be deferred pursuant to s 19B(1)(c) and (d) of the Sentencing Act, must enter.
[5]    Criminal Law (Sentencing) Act 1988 (SA) s 19B(1).
[6]    Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA).
[7]    Bail Act 1985 (SA) s 11(2)(a)(iii).
[8]    See definition of intervention program manager: Criminal Law (Sentencing) Act 1988 (SA) s 3; Bail Act 1985 (SA) s 3.

Supervision by an officer of the Department of Correctional Services is an important element of the scheme contemplated by s 19B of the Sentencing Act. The Department of Correctional Services has both institutional and individual expertise in monitoring and encouraging cooperation and participation in rehabilitation programs. Supervision also provides an important element of protection for the public. It also facilitates the Court being informed if the purpose for which an adjournment has been granted under s 19B of the Sentencing Act is no longer being served.
Finally, it should be noted that s 19B(3) of the Sentencing Act provides that sentencing cannot be deferred for more than 12 months unless it is necessary to allow a defendant to complete an intervention program which is necessary for his or her successful rehabilitation.
An understanding of the primacy accorded to structured intervention programs informs the construction of the remaining paragraphs of s 19B(1) of the Sentencing Act. Paragraphs (a) and (b) of s 19B(1) form a couplet: the first addresses the assessment of the defendant’s capacity and prospects for rehabilitation; whereas the second addresses allowing the defendant to demonstrate that rehabilitation has taken place. The difference between the two paragraphs is that the first proceeds on the basis that the Court will ultimately sentence the defendant (after the adjournment) having regard to prospective rehabilitation; whereas the second assumes that the Court will ultimately sentence the defendant having regard not only to future rehabilitation but also to past demonstrated rehabilitation.
An adjournment pursuant to s 19B(1)(b) of the Sentencing Act may be granted after an offender has commenced a course of rehabilitation or other rehabilative steps, whether on his or her own initiative before the matter is called on for sentencing or during an adjournment granted pursuant to s 19B(1)(a) of the Sentencing Act. The purpose of the adjournment is to demonstrate that the defendant has overcome the fraught behavioural patterns which led to the offending and not merely to see whether or not he or she re‑offends. An adjournment pursuant to s 19B(1)(a) of the Sentencing Act may be granted where a specific investigation is to be made or steps taken during the period of the adjournment which will better enable the Court to assess the defendant’s capacity and prospects for rehabilitation at the time of sentencing.
Sections 19B(1)(a) and (b) of the Sentencing Act are not limited to adjournments for the purposes of preliminary steps towards or participation in an intervention program.[9] A sentence might be deferred, in accordance with s 19B(1)(a) or (b), even when participation in an intervention program is not contemplated.[10] Nonetheless, the approach to s 19B(1)(a) of the Sentencing Act must be shaped by its context and in particular the structured and supervised nature of the intervention programs contemplated by other subparagraphs. The assessment of a defendant’s “capacity and prospects for rehabilitation” and the demonstration that “rehabilitation has taken place” involve much more than simply allowing time to pass to see whether the defendant improves, continues or deteriorates in the behaviour constituting the relevant offence or offences It is not possible to be prescriptive, but, as a general rule, the powers in s 19B(1)(a) or (b) of the Sentencing Act may be exercised to give a defendant an opportunity to find or secure employment, to establish himself or herself in stable accommodation or, in some other way, to deal in a structured way with the criminogenic conditions which led to the offending. An adjournment is not to be granted merely to test the defendant’s resolve not to re‑offend.
[9] If they were so limited, they would have no additional work to do beyond that done by paragraphs (c) and (d).
[10] Before the enactment of s 19B, there was an inherent power to defer sentencing for the purpose of assessing a defendant’s commitment to rehabilitation.. The deferral, known as a “Griffiths remand”, was sparingly used: R v McMann (1997) 70 SASR 1 at 8. It is not necessary to decide on this appeal whether s 19B(7) was enacted out of an abundance of caution to address adjournments for purposes other than those related to rehabilitation (for example, for the purpose of obtaining a medical report) or whether it preserves the inherent power to defer sentencing for the purpose of assessing a defendant’s commitment to rehabilitation. Assuming the latter, the enactment of s 19B of the Sentencing Act must necessarily have affected the approach to, and the considerations relevant to, the inherent discretion. The various discretions should not result in different outcomes. For example, assuming without deciding that an adjournment for a period longer than 12 months could be given pursuant to the inherent power, the occasion for doing so would be rare having regard to s 19B(2) of the Sentencing Act. The same can be said of the power to defer without requiring a bail agreement or supervision.
Even though, in terms, s 19B(1)(e) of the Sentencing Act is expressed widely, being “any other purpose”, on a proper construction the purpose must be one which is analogous to the purposes prescribed by the preceding subparagraphs.
It follows that s 19B of the Sentencing Act is focused towards structured programs which deal with identifiable psychiatric, psychological and behavioural conditions and syndromes. The conditions generally will be of a kind which can properly be treated within the period of the adjournment or adjournments.
It is important to bear in mind that punishment and general deterrence remain important considerations in both the exercise of the discretion to defer, and in sentencing after a deferral. In the ordinary course, punishment should follow soon after conviction and the deterrent effect of punishment is diminished by delay. Both punishment and general deterrence remain important sentencing purposes even if treatment and rehabilitation have been successful. Section 19B of the Sentencing Act has not displaced those considerations. In the Second Reading Speech, the Attorney-General emphasised that the amendments did not create an entitlement to intervention and were not intended to change the weight to be given to rehabilitation in the sentencing process.[11] Successful rehabilitation may meet the need to protect the community from further offending by the defendant, and may also satisfy the need for specific deterrence, but the obligation to impose a sentence which also gives effect to the punitive and general deterrence aspects of sentencing remains.
[11] Parliament of South Australia, Parliamentary Debates, Hansard, Statutes Amendment (Intervention Programs and Sentencing Procedures) Bill, Second Reading Speech, 22 September 2005 at p 3557.
In R v Kear,[12] Wells J explained:
But the principal question which a judge must for ever pose for himself is, “What should be the purpose or purposes of any order that I make, having regard to all the circumstances of the case?”
In the span of centuries during which judges have been sentencing, the possible purposes which have, again and again, presented themselves to judicial minds, and that jostle one another in their endeavours to gain paramountcy are (1) to deter; (2) to prevent; (3) to reform, or, in modern parlance, to rehabilitate; (4) to exact retribution.
It is not possible in any one case to give full rein to any one of those purposes. To adopt one to the exclusion of the rest is likely to produce results that are absurd, unjust and ineffectual.
Before any judicial sentence can be imposed, or justly appraised, it is essential to apprehend the truth of what I have just said. There are some who, for example, would treat rehabilitation as the sole or dominant purpose of a sentence. It is obviously true that if there are good grounds for supposing that rehabilitation will succeed, and there are no overriding considerations that imperatively require a different kind of order, the community can, in the long run, best be protected by an order designed to rehabilitate. But an attempt to rehabilitate where the chances of success are not encouraging will generally do a great deal more harm than good. Moreover, if rehabilitation is regarded as the sole or paramount object of sentencing, one is driven to the conclusion that a man who is beyond the reach of reformative influence should not be sentenced at all.[13]
[12] (1977) 75 LSJS 311.
[13] Ibid at 313-314.
In practice, s 19B of the Sentencing Act is more likely to be engaged when there is a finely balanced question whether to suspend all, or part, of the sentence.
On its terms, the power conferred by s 19B of the Sentencing Act extends to cases in which a sentence of immediate imprisonment must be imposed but a question remains as to the length of the sentence and/or the non-parole period. However, the discretion to defer sentencing will rarely be exercised for that purpose for several reasons.
First, if a sentence of immediate imprisonment is called for, it is inconsistent with the deterrent and protective purposes which that sentence is designed to secure to defer the sentence. Secondly, it is unlikely that the completion of a rehabilitation program will materially reduce the contemplated non-parole period because, if a defendant is thought to be a suitable candidate for participation in a rehabilitation program, the contemplated non-parole period will reflect that consideration and is likely to be a relatively low one in any event. Thirdly, there will rarely be utility in having an offender undertake a rehabilitation program only to immediately be incarcerated and withdrawn from the community on its completion. The rehabilitation is better undertaken on parole after release from prison. Fourthly, it might appear to be harsh to send to prison defendants who have successfully completed a rehabilitation program and judges may be dissuaded by that appearance from imposing the sentence of imprisonment which the offending deserves.
It follows from the abovementioned considerations that, other than in exceptional circumstances, a court should not defer sentencing unless there is a real likelihood that the further sentencing information obtained through the medium of the adjournment will materially change the balance of sentencing considerations and therefore significantly affect the ultimate sentence.[14] No good purpose will usually be served in deferring sentence pursuant to s 19B of the Sentencing Act if the demands of punishment and general deterrence are so great that a substantial sentence of immediate imprisonment must be imposed even if the proposed rehabilitation program is largely successful. Further, a sentence should not be deferred unless the expectation of successful rehabilitation is “founded upon solid grounds” and not “mere sentimentality”.[15]
[14] See in respect of the inherent jurisdiction, R v Trindall (2002) 133 A Crim R 119 at 131 [64] per Smart AJ.
[15] See, in respect of the inherent jurisdiction, Griffiths v The Queen (1977) 137 CLR 293 at 306 per Barwick CJ, 323-326 per Jacobs J (Stephen J agreeing) and 330 per Murphy J; R v Tindall (1994) 74 A Crim R 275 at 276 per Hunt CJ, at CL 282-283 per Carruthers J and 287 per Bruce J.
Analysis – Wymond
In the course of sentencing submissions, the Judge raised with the prosecutor the possibility of fixing a non-parole period as low as a “few months” so as not to interfere with the Owenia House program. The prosecutor responded expressing reticence in commenting on the length of the non-parole period and then accepting that, having regard to the decision in R v Padberg,[16] a non-parole period in the order of six months would not be an error. The Judge then raised the possibility of deferring Wymond’s sentencing while he attended Owenia House. The prosecutor opposed that course and informed the Judge that the Director’s position, that there should be an immediate period of imprisonment, would not be changed by Wymond’s participation in the Owenia House program. The Judge then enquired about the prosecutor’s attitude to a deferral of sentence for the purpose of considering the length of the non-parole period in the light of further information from Owenia House. The Judge asked: “Do you have a major objection to that?”. The prosecutor answered “no”.
[16] (2010) 107 SASR 386.
In the ordinary course, the Director will not be granted permission to appeal against a sentencing course to which he has consented. In this case, however, the Director had taken a strong position against deferral of the sentence. The eventual acquiescence to the Judge’s persistence was qualified. The Judge’s reference to a “major objection” suggests that his Honour appreciated that the prosecutor opposed a deferral but was enquiring about the strength of the opposition to a deferral for the more limited purpose of considering the non-parole period and not a suspension. Moreover, in light of the Judge’s earlier reference to the possibility of interrupting the program with a short period of imprisonment, the prosecutor could reasonably have believed that the Judge was considering a short adjournment which, if Wymond made good progress, would be followed by a sentence with a non-parole period short enough to allow him to resume the program.
An application for permission to appeal against a deferral of sentence does not offend the principle of double jeopardy in the same way as an application for permission to appeal against the sentence itself. It is also in the public interest to further consider the circumstance in which sentencing should be deferred for the purpose of considering the length of the non-parole period.
For all of the above reasons, we grant permission to appeal notwithstanding the exchange between the prosecutor and the Judge.
Wymond’s offending was a serious example of its kind. His offending was committed over a protracted period of time and resulted in Wymond amassing an enormous number of images. Wymond showed little insight into the wrongfulness of his conduct. For those reasons, there was little room for leniency even though he had no prior convictions. Wymond’s mitigating personal circumstances are not uncommon amongst offenders of his kind. The imperative to deter child pornography offences necessarily reduces the weight which can be accorded to circumstances which are commonly found in such offenders’ personal profiles. The weight which the consideration of general deterrence demands in offences of this kind also limits the degree to which even an offenders completely successful rehabilitation can be reflected in a suspended sentence or an unusually low non-parole period.[17]
[17] R v Padberg (2010) 107 SASR 386 at [20]-[23] per Doyle CJ (White J agreeing), at [41]-[42] per Kourakis J; R v Ohmer [2011] SASCFC 44 at [23] per Kelly J (Doyle CJ and White J agreeing); R v Riddle (2012) 113 SASR 314 at [23]-[24] per Anderson J (Kourakis CJ and Nyland J agreeing).
For the above reasons, there was no real likelihood in Wymond’s case that successful participation in the Owenia House rehabilitation program would materially change the balancing of sentencing considerations and significantly affect the ultimate sentence either in terms of suspension or the length of the non-parole period. The Judge erred in deferring sentence.
The Judge also made the following additional errors in exercising his discretion to defer Wymond’s sentencing.
First, as observed above, it is implicit in the Judge’s reliance on s 19B(3) of the Sentencing Act to grant an adjournment of more than 12 months that he proceeded on the basis that Wymond’s continuing voluntary attendance at Owenia House was an intervention program for the purposes of that section and that he was relying on paragraph (d) of s 19B(1) of the Sentencing Act. Wymond’s participation was not supervised by the Department of Correctional Services. In addition he had only attended four sessions to date of sentencing and his future participation would depend solely on whether he chose to attend any individual session. For those reasons it was not an intervention program. The Judge therefore did not have any power to defer the sentence pursuant to s 19B(1)(d). He did have a power to do so pursuant to s 19B(1)(a) or (b) but there were no reasonable grounds to exercise that power to defer Wymond’s sentencing for the purpose of his attending on occasions of his own choosing from time to time at Owenia House without also ordering supervision.
Secondly, an adjournment of greater than 12 months should not have been allowed. An adjournment of that length could only be granted pursuant to s 19B(3) of the Sentencing Act if the defendant was participating in an intervention program. Even if his proposed attendance at Owenia House had constituted an intervention program, the Judge could not have been satisfied of the pre-conditions in s 19B(3)(b)(ii) of the Sentencing Act. His Honour acknowledged that he could not be “definitive” on that issue. Wymond’s lack of insight and lack of any structure for attendances at Owenia House meant that he had not demonstrated a commitment to addressing his problems. The availability of a prison based program may have suggested that his rehabilitation would not be compromised by an adjournment of 12 months or less. Indeed, the Judge had himself raised the possibility of a shorter adjournment after which Wymond would be sentenced with a low non-parole period which would allow him to complete the program on his release.
Thirdly, if a deferral of more than 12 months had otherwise been appropriate, the proper course would have been to adjourn for several consecutive periods of some months’ duration so that Wymond’s progress could be reviewed from time to time.
Analysis – Evans
The Judge made several similar errors in deferring Evans’ sentencing.
First, there was no real likelihood that the balance of sentencing considerations would be materially affected by Evans’ proposed psychological treatment. The offence of arson is serious. If Evans’ purpose was to defraud the insurer, that intention would be a serious aggravating circumstance.
Secondly, Evans was not participating in an intervention or similar program. The mental health plan upon which Evans was to embark was no more than a proposed referral by his general practitioner for psychological counselling. The content of the proposed psychological counselling and its likely effect on Evans’ psychological prognosis were not defined. It did not have sufficient structure to permit its being characterised as a program. Even if the Judge had proceeded pursuant to s 19B(1)(a) of the Sentencing Act, there were no reasons in this case not to impose a structured rehabilitation program during the period of the adjournment. The offence arose out of Evans’ long term abuse of, and dependency on, alcohol and illicit drugs. The deferral should not have been granted without a high level of assurance that the program was likely to address those conditions successfully. The nature of the treatment program and Evans’ obligations to participate in it should have been closely prescribed.
Thirdly, the Judge erred in not conditioning the adjournment on Evans’ entry into supervised bail. There was no reason not to order supervised bail in this case when protection of the public was an important consideration having regard to his antecedents.
We also observe that there were strong reasons to doubt that Evans’ rehabilitation would be advanced by deferral. Evans chose not to complete the detoxification program he had commenced in 2011. There was reason to doubt that he would complete the psychological treatment upon which he was about to embark.
Conclusion
We grant permission to appeal and allow the appeals in both matters. We remit both matters to the Judge to proceed to sentence without a further deferral.