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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wymond

Details

AGLC: R v Wymond; R v Evans [2013] SASCFC 12
Case: [2013] SASCFC 12
Decision Date: 14 March 2013

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against two decisions by a judge to defer sentencing pursuant to section 19B of the *Criminal Law (Sentencing) Act 1988* (SA). The core of the dispute concerned whether the judge had erred in exercising their discretion to defer sentencing in the specific circumstances of each case. The appeal was heard by Kourakis CJ, Vanstone J, and Blue J.

The legal issues before the Full Court were whether the judge had properly exercised the discretion conferred by section 19B of the Act, and if the deferral of sentencing was appropriate for the purposes outlined in that section. Specifically, the court had to consider the limitations and requirements of section 19B, which permits deferral for purposes such as assessing or demonstrating rehabilitation, or participating in an intervention program, with a general maximum adjournment period of 12 months, extendable under certain conditions related to intervention programs.

The Full Court reasoned that the power to defer sentencing under section 19B is limited to the prescribed purposes, and a judge must clearly identify the specific purpose for which the adjournment is granted. While the Act does not expressly list all relevant considerations, these can be inferred from the stated purposes. In one of the matters, the court found strong reasons to doubt that the offender's rehabilitation would be advanced by a further deferral, noting the offender's failure to complete a previously commenced detoxification program and the uncertainty surrounding their commitment to subsequent psychological treatment.

Permission to appeal was granted, and the appeals were allowed. The matters were remitted to the sentencing judge to proceed to sentence without any further deferral.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.