Section 29 of the Sentencing Act 2017 (SA) allows for the deferral of sentencing for a defendant to demonstrate that rehabilitation has taken place, or for his or her participation in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(b) and 29(1)(d); Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 for common law principles]. As a general rule, a court may adjourn sentencing proceedings for up to twelve months from the date of the finding of guilt to allow a defendant to undertake rehabilitation [see s 29(2)].

An adjournment may be extended beyond twelve months where a defendant is about to commence, or is participating in an intervention program, has demonstrated a commitment to addressing the causal problems which led to the offending, and where a further extension would allow a defendant to complete or participate in an intervention program [see Sentencing Act 2017 (SA) s 29(3)]. In determining whether or not to extend an adjournment beyond twelve months, the court is not bound by the rules of evidence, and may inform itself on the basis of a written or oral report from a person in a position to provide such a report [see s 29(4)]. Any person who provides information to the court (written or oral) is liable to be cross-examined on any matters contained in their report [see s 29(5)]. Any statement, fact or opinion contained in a report must be disregarded by the court if challenged by prosecution or a defendant unless it is substantiated on oath [see s 29(6)].

The Sentencing Act 2017 (SA) provides the matters relevant to sentencing which must be considered by a sentencing court [see Guilty Pleas chapter for a detailed discussion of Sentencing Act 2017 (SA) ss 9 -11; Sentencing chapter for sentencing purposes, principles and factors]. Whilst a sentencing court must weigh and consider all sentencing factors, the defendant's prospects of rehabilitation is specified as an individual sentencing factor [see Sentencing Act 2017 (SA) s 11(1)(h)].

A sentencing court might treat a defendant’s rehabilitation through participation and achievements in an intervention program as relevant to sentence [see generally Sentencing Act 2017 (SA) ss 11(1)(h) and 11(6)]. A sentencing court may consider a non-custodial sentence due to a defendant’s demonstrated rehabilitation in an intervention program, where imprisonment prior to participation on the program was almost certain [see Germain v Police [2006] SASC 340; R v Moore (2009) 263 LSJS 183; [2009] SADC 56].

The fact that a defendant has not participated in an intervention program, or performed badly, or did not make satisfactory progress, is not relevant to sentence [see Sentencing Act 2017 (SA) s 11(7); Ashton v Police (2008) 101 SASR 102; [2008]SASC 174]. For those defendants who fail to successfully complete an intervention program, there is often room to argue that even though they have not completed the program, they have nevertheless demonstrated some progress towards rehabilitation.

The Sentencing Act 2017 (SA) provides for participation in an intervention program after sentence as a condition of bond [see s 98(1)(e)]. Before such a condition can be imposed in a bond, a court must first be satisfied that a defendant meets the eligibility criteria of the intervention program and services are available for the defendant to undertake the program [see s 98(5)]. A court may order an assessment of a defendant to determine the appropriate form of intervention, and his or her eligibility to participate in such an intervention [see s 98(6)].

Once a defendant is assessed as eligible for participation in an intervention program, the court is provided with a certificate in confirmation [see Sentencing Act 2017 (SA) s 98(7)(a)]. Upon completion of an intervention program, a certificate confirming compliance with conditions regulating participation may also be made available to the court [see s 98(7)(b)].