The Bail Act 1985 (SA) and the Sentencing Act 2017 (SA) specifically provide for bail to allow a defendant to undertake assessment for, and participation in, an intervention program. The relevant provisions are outlined below [see also Bail chapter].
A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt or, in the case of the Mental Health Diversion Court, where there is an admission that the factual elements of the charge are not contested, and grant bail to allow a defendant to undertake an assessment of his or her capacity and prospects for rehabilitation, and eligibility for participation in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(a) and 29(1)(c); and Sentencing considerations (below)].
A court may order an assessment of a defendant to determine an appropriate intervention program, and whether or not that person meets the eligibility criteria of the program [see Bail Act 1985 (SA) s 21B(3)]. A court may release a defendant on bail with a condition that he or she attends an appointment to undertake assessment for an intervention program [see Bail Act 1985 (SA) s 21B(3)].
When a defendant fails to comply with a condition of bail to attend an assessment, the court must determine whether the failure to comply with the order to undertake an assessment constitutes a breach of the bail agreement [see Bail Act 1985 (SA) s 21B(6)]. Failure to attend an assessment, in itself may be considered by the court as indicating an unwillingness to participate in the assessment and program [see s 21B(6)]. The court has the discretion to allow a defendant a further opportunity to attend an assessment where there has been a previous failure to attend. The court may at any time make an order to revoke or vary the bail condition [see s 21B(5)].
| DEFENDANTS WHO MAY BENEFIT FROM AN INTERVENTION PROGRAM |
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The question of whether a defendant in custody may be eligible for participation in an intervention program may arise from the Form 2 (which is a written record of the reasons for a refusal of police bail [see Bail Regulations 2015 (SA) sch 1 Form 2), or from the contents of a Bail Enquiry Report, or during the taking of instructions for a bail application. For example, the Form 2 or a Bail Enquiry Report may highlight a history of drug addiction or mental impairment. The instructions of the defendant or his or her demeanour (such as appearing to be under the influence of drugs, or clearly suffering from a mental impairment) may suggest a potential benefit from participation in an intervention program. When this occurs, you should provide the defendant with some basic advice about the benefits of an intervention program, and take instructions as to whether or not the defendant agrees to be assessed for one. Similarly, defendants who are not in custody frequently attend at the Duty Solicitor's office for minor assistance, sometimes accompanied by a mental health or other support worker, and through their demeanour or history may reveal a potential eligibility for participation in an intervention program. In these situations a defendant should be given basic advice about the availability of the appropriate program, and the benefits of participation, and further advice about applying for legal aid or private representation if ineligible. |
A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt, or following an admission of the factual elements where mental health is an issue, and grant bail to allow a defendant an opportunity to demonstrate that rehabilitation has taken place and to allow him or her to participate in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(b) and 29(1)(d); and Sentencing considerations (below)]. A court may not release a defendant on bail to undertake an intervention program unless satisfied that the person meets the eligibility criteria of the program, and services are available for the defendant to undertake the program [see Bail Act 1985 (SA) s 21B(2)(b)].
Following an assessment for participation in an intervention program, the court is provided with a certificate indicating whether the applicant is considered to be eligible to participate in the program, the availability of services, and whether the defendant has cooperated with the assessment process [see Bail Act 1985 (SA) s 21B(7)]. Once it is determined that the defendant is a suitable candidate for participation in a program, he or she may be released with a condition of bail that he or she is to undertake the intervention program [see s 21B(1)].
Where a person is considered to have failed to comply with a condition of an intervention program, the matter is referred back to court for consideration. The court must determine whether or not the failure to comply constitutes a breach of a condition of bail [see Bail Act 1985 ss 21B(6) and 21B(7)]. Failure to comply with a condition of an intervention program may in itself be considered by the court as an indication that the person is unwilling to continue participation in the program [see s 21B(6)]. However, the fact that a defendant has performed badly or failed to make satisfactory progress in an intervention program is not relevant to the eventual sentencing process [see Sentencing Act 2017 (SA) s 11(7)]. The court may at any time make an order to revoke or vary the bail condition [see Bail Act 1985 (SA) s 21B(5)].
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