Where a guilty plea is entered and the Magistrate is considering the appropriateness of a sentence of imprisonment, the Magistrate may order a pre-sentence report and remand the person either in custody or on bail while the report is being prepared [see Sentencing Act 2017 (SA) s 17]. The pre-sentence report will provide the Magistrate with information on the physical or mental condition of the defendant, the personal circumstances and history of the defendant [see Sentencing Act 2017 (SA) s 17(1))]. It usually takes about two weeks for the preparation of a pre-sentence report if the person is in custody; up to six weeks if the defendant is on bail. The Court should not order such a report when the information cannot be provided within a reasonable time or where the penalty to be imposed is a mandatory penalty [see Sentencing Act 2017 (SA) s 17(2))]. The report can be furnished orally or in writing, and where it is available in writing, a copy must be provided to the prosecutor and the defendant or their counsel [see Sentencing Act 2017 (SA) ss 17(3) and 17(4)]. The author of the report can be examined and cross-examined on any matter contained in the report [see Sentencing Act 2017 (SA) s 17(5)]. Where a statement of fact or opinion contained in the report is challenged by prosecution or the defendant, that fact or opinion must be disregarded by the court unless it is substantiated on oath [see Sentencing Act 2017 (SA) s 17(6)].
|DEALING WITH SERIOUS MATTERS|
|An inexperienced duty solicitor should immediately brief senior counsel from the Commission to assume conduct of the plea and to take instructions for submissions on the next occasion.|
ADVICE REGARDING THE PRE-SENTENCE REPORT
A pre-sentence report may disclose the defendant’s interstate prior criminal history. Consider this before ordering a report.
It is unethical to attempt to “coach” the defendant regarding material they may furnish to the probation officer who will prepare the pre-sentence report. You should however, advise the defendant that it is not in their best interests to furnish false information (for example, with regards to their prior history). It is also permissible to remind them that anything they say may potentially end up in the report. As is the case with bail assessment reports, the report, once ordered, will end up before the Court, even if the information contained within is detrimental to the defendant [see Bail chapter]. The duty solicitor should therefore think twice before requesting a pre-sentence report.
In the duty solicitor context, it is unusual to request a court order for a psychiatric report on a plea of guilty because the duty solicitor should only be engaged in the conduct of simple guilty pleas. If a psychiatric report is to be obtained and is ordered by the court, the same considerations apply as to pre-sentence reports with regards to detrimental information. Again, the duty solicitor should take very careful instructions before requesting a court to order such a report. It is perfectly permissible, if appropriate, to obtain a private psychiatric or psychological report, and then choose not to use it if it is unhelpful, where the defendant has a grant of legal aid.