R v Wymond
[2012] SADC 141
•4 September 2012
District Court of South Australia
(Criminal)
R v WYMOND
[2012] SADC 141
Ruling of His Honour Judge Stretton (ex tempore)
4 September 2012
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - OTHER MATTERS
The accused admitted accessing child pornography over an extended period. Whether a deferral of sentence for rehabilitation and other purposes as contemplated by section 19B of the Criminal Law (Sentencing) Act is warranted, considered.
Held: The offending is serious, however in all other respects the accused has led a good and blameless life. Upon arrest he sought assistance from the police and on their recommendation commenced specialised treatment at Owenia House. The Owenia House program is an “intervention program” within the meaning of sections 3 and 19B of the Act. Whilst it was not possible to be completely definitive, on balance the criteria justifying an adjournment for more than 12 months per section 19B(3) are satisfied. In all the circumstances it is appropriate to defer sentence until practical completion of that program, to allow its completion, and to assess the accused’s capacity and prospects for and level of rehabilitation as contemplated by sections 19B(1) (a), (b) and (d) of the Act.
Criminal Law (Sentencing) Act 1988 s 10(4), s 19B(1)(d), s 19B(3), s 3, referred to.
R v WYMOND
[2012] SADC 141
This is a very difficult matter. The accused has committed serious offences against the accessing child pornography provisions of the law.
He is a middle-aged man who is otherwise a person who has led a blameless life. At the moment he was spoken to by police, he made full admissions, apologised and asked the police to assist him in relation to recommending treatment. He sought treatment and he has commenced treatment in a specialised program run by Owenia House for this very kind of offending.
He has admitted his involvement to his family, he has a good work history, he has an otherwise exemplary family life.
On the other hand, as I said before, this is serious offending and the court must give full weight to the community’s expectation reflected in s.10(4) of the Criminal Law (Sentencing) Act that this kind of offending will be seriously deterred.
The Criminal Law (Sentencing) Act recognises that where a person has commenced participation in an intervention program, it is sometimes appropriate that the sentencing be adjourned for a period for the purposes of the court assessing the defendant’s capacity and prospects for rehabilitation, for assessing his demonstrated (or otherwise) rehabilitation, and to, per s.19B(1)(d), allow the participation in that intervention program to occur.
This does not mean the court may not impose a significant sentence ultimately, rather it is to allow that intervention program to occur so that the court can balance the very important matters submitted both by the DPP and defence counsel in light of that.
I note from the Owenia House report that Mr Wymond has willingly engaged in the program conducted there, and has already displayed some understanding of his offending and the particular issues that are very relevant in the case of accessing child pornography.
The program is anticipated to take some 18 months. I note however he has already commenced that program.
S.19B(3) provides that a court may adjourn proceedings for a period exceeding 12 months if the defendant is participating in an intervention program and by participating the defendant has demonstrated a commitment to addressing the problems out of which his offending arose and if it were not adjourned, the defendant would be prevented from completing or participating in the intervention program and his rehabilitation would be prejudiced. It is not possible to be definitive about that latter issue, however in all the circumstances the court will be most assisted by a further report at the stage of the approximate completion of that program. The Owenia House program is plainly an “intervention program” as defined in Section 3 of the Criminal Law (Sentencing) Act.
Recognising that he has been in the program for some period of time already, the court will therefore adjourn the matter for a period of 15 months.
Are counsel free on Thursday, 2 December 2013? I presume you would be.
MR KLOTZ: Yes.
MR TWIGGS: Yes.
HIS HONOUR: Mr Wymond, the matter has taken this course because of the seriousness of your offending but also because of the importance of assessing your genuineness. The ball’s in your court.
PRISONER: Thank you your Honour.
MR TWIGGS: Does your Honour want to administratively put something in place to order a report?
HIS HONOUR: I request that Owenia House prepare a report in November 2013 documenting Mr Wymond’s participation and success or otherwise in the program.
MR TWIGGS: The time on that day?
HIS HONOUR: 9.30. I thank both counsel for their assistance in this difficult matter.
ADJOURNED 11.16 A.M.
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