The Sentencing Act 2017 (SA) prescribes that the primary purpose for sentencing a defendant must be to protect the safety of the community (whether as individuals or in general) [Sentencing Act 2017 (SA) s 3].
Section 4 of the Sentencing Act 2017 (SA) prescribes the secondary sentencing purposes, being that:
In addition, the sentencing court is required to apply the common law concepts reflected in the principles of proportionality, parity and totality when sentencing a defendant [see s 10(1)]. A defendant cannot be sentenced on the basis of having committed an offence which they were not convicted of [see s 10(1)(d)].
Section 11 of the Sentencing Act 2017 (SA) lists a number of factors the court must take into account when determining sentence. These are considered in more detail below.
*Please note that the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA) on 30 April 2018. The Sentencing Act 2017 (SA) substantially reforms the previous Act and in particular the previous section 10. The Sentencing Act 2017 (SA) separately outlines sentencing purposes, principles, and factors, and makes it clear by virtue of section 9 that the primary purpose for sentencing a defendant must be the paramount consideration when determining sentence.
In summary, the general principles of sentencing relevant to a simple guilty plea are:
The paramount consideration in determining and imposing sentence must always be to protect the safety of the community (the primary sentencing purpose) [Sentencing Act 2017 (SA) ss 3 and 9].
In determining sentence a court must also consider the secondary sentencing purposes:
In determining the sentence for an offence, a court must not have regard to any of the following:
| CONSIDER THE SENTENCING PURPOSES, PRINCIPLES AND FACTORS |
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| The duty solicitor must consider both the primary and secondary sentencing purposes (as contained in sections 3 and 4 of the Sentencing Act 2017 (SA)) as well as the general sentencing principles (s 10) and individual sentencing factors (s 11) as they relate to the instructions they obtain from the defendant. They must also anticipate the factors likely to be argued by prosecution and be in a position to address those issues during submissions in mitigation of penalty should they be raised by the prosecutor.
The duty solicitor's responsibility is to present a concise, yet persuasive argument in mitigation of the penalty which may be imposed upon the defendant. |
The Sentencing Act 2017 (SA) carries over the scheme previously introduced in the previous Criminal Law (Sentencing) Act 1988 (SA) regarding possible sentencing reductions for people who cooperate with law enforcement agencies. In order for a person assisting law enforcement to receive a reduction in sentence, the information provided must directly relate to combatting serious and organised criminal activity, must be provided in exceptional circumstances and must contribute significantly to the public interest [Sentencing Act 2017 (SA) s 37(1)].
The court is able to reduce the sentence that it would otherwise have imposed by such a percentage as it thinks appropriate [s 37 (2)].
In determining what percentage reduction to apply, the court can consider:
along with various other considerations outlined in section 37(3) of the Sentencing Act 2017 (SA).
If a person who received a reduction in sentence under section 37 later withdraws their cooperation with the law enforcement agency, the DPP can apply to the court to have the person resentenced [s 42].
Similarly, a defendant who has later cooperated with a law enforcement agency can apply to the court to have the sentence squashed and a new, reduced sentence imposed [s 43].
A court, on providing reasons for sentence, is not required to state any information that relates to a persons' cooperation with police (or other law enforcement agency) [s 19(2)].
Section 37 of the Sentencing Act 2017 (SA) :
37—Reduction of sentences for cooperation etc with law enforcement agency
(1) A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—
(a) relates directly to combating serious and organised criminal activity; and
(b) is provided in exceptional circumstances; and
(c) contributes significantly to the public interest.
(2) In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.
(3) In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:
(a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;
(b) the nature and extent of the defendant's cooperation or undertaking;
(c) the timeliness of the cooperation or undertaking;
(d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant;
(e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;
(f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;
(g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;
(h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);
(i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;
(j) the nature of any steps that would be likely to be necessary to protect the defendant on his or her release from prison;
(k) the likelihood that the defendant will commit further offences,
and may have regard to any other factor or principle the court thinks relevant.
(4) In this section—serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.
The Sentencing Act 2017 (SA) provides for a reduction of sentence by up to 40% for early guilty pleas in the Magistrates Court [s 39] and up to 35% (25% for serious indictable matters) in other courts [s 40].
A early discount guilty plea scheme was previously provided for in ss 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA), which was replaced by the Sentencing Act 2017 (SA) on 30 April 2018.
On 2 November 2020, the scheme was further reformed with the commencement of the Statutes Amendment (Sentencing) Act 2020 (SA). The amending Act reduced the percentage previously available to a defendant under section 40 of the Sentencing Act 2017 (SA) and expanded the general criteria that courts must consider when determining an early guilty plea sentence reduction.
Reduction of sentence for guilty pleas in the Magistrates Court - summary offences
Section 39 of the Sentencing Act 2017 (SA) enables a person to receive a reduction in sentence for an early guilty plea in the Magistrates Court on summary offence matters (including minor indictable matters tried and sentenced as summary offences) or in other circumstances (as prescribed by regulations).
Subject to that section, if a defendant has pleaded guilty to an offence:
In circumstances where none of the above reductions are available, the court may, where it is satisfied that the defendant did not plead guilty during the relevant period for any of the specific reasons listed in section 39(3)(b), reduce the sentence as if the defendant had in fact pleaded guilty [see section 39(3)].
Further, if the court is satisfied that the defendant was unable to obtain legal advice within the designated period [4 weeks after first court appearance, as outlined in s 39(2)(a)] due to:
the defendant pleads guilty within 14 days after the designated period, then the court may reduce the sentence as if the guilty plea was entered within the designated period [see s 39(3a)].
Reduction of sentence for guilty pleas in other matters - Higher courts
Section 40 of the Sentencing Act 2017 (SA) enables a reduction in sentence in other matters than those to which section 39 applies.
Subject to this section, if a defendant has pleaded guilty to an offence:
Further, in circumstances where none of the above reductions are available, the court may, where it is satisfied that the defendant did not plead guilty during the relevant period for any of the specific reasons listed in section 40(3), reduce the sentence as if the defendant had in fact pleaded guilty [see section 40(4)].
A serious indictable offence is defined in s 40(8) of the Sentencing Act 2017(SA) as:
*A serious offence of violence, a serious sexual offence and serious harm are further defined in s 40(8).*
Determining the reduction of sentences for guilty pleas
If a defendant enters an early guilty plea in either the Magistrates Court (as per section 39) or in other matters not covered by section 39 (but covered by section 40), the court should consider the following in determining the percentage by which a sentence for an offence is to be reduced:
Application of sentencing reductions
Please note section 36 of the Sentencing Act 2017 (SA) which sets out the purpose and application of this Division of the Act. Section 36 provides:
See also information and related documents about the 2018 Major Indictable Reform from the DPP website: Major Indictable Reform
Part 2, Division 2, Subdivision 3 of the Sentencing Act 2017 (SA) creates an optional system for the court to take into account other offences when sentencing a defendant for a principal offence.
Where a defendant is charged with multiple offences, they have the option of being convicted of the principal offence, and having the further offences taken into account when sentencing (but having no conviction or separate penalty imposed for those offences).
The court must ask whether the defendant wants to have any further offences taken into account [s 33(1)]. If the defendant agrees, the prosecutor may file a document which specifics other offences with which the defendant has been charged but not convicted of [s 32(1)]. This list may be filed at any time after the court finds the defendant guilty of the principal offence [s 32(2)(a)] but before the defendant is sentenced for the principal offence [s 32(2)(b)].
The defendant is required to admit guilt to the further offence(s) for them to be taken into account [s 33(2)(a)(i)], but is not convicted of the further offence(s) [s 35(4)]. If the court takes the further offence(s) into account, the penalty imposed on the defendant cannot exceed the maximum penalty that applies for the principal offence [s 33(3)].
The court can make other orders once taking the further offence(s) into account, but cannot impose a separate penalty for the further offence(s) [s 34(1)].
Once a further offence is taken into account, no further proceedings can be taken or continued in respect of the further offence, unless the conviction for the principal offence is quashed or set aside [s 35(1)(b)]. The fact that the further offences have been taken into account will be certified by the court on the list of additional offences [s 35 (1)(a)].
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