The primary purpose for sentencing a defendant is to protect the safety of the community [Sentencing Act 2017 (SA) s 3]. The primary purpose is further enshrined in section 9 of the Sentencing Act 2017 (SA) which emphasises that it must be the paramount consideration of the court when determining and imposing sentence [s 9].

Additionally, the sentencing court is required to apply the common law sentencing principles of proportionality, parity, and totality [see ss 10(1)(a), 10(1)(b) and 10(1)(c)].

The court cannot sentence a defendant for committing an offence that they were not convicted of, nor can a term of imprisonment be imposed unless the seriousness of the offence justifies the penalty or is required to protect the safety of the community [see s 10].

Aside from the primary and secondary sentencing purposes [see ss 3 and 4], and the general sentencing principles [see s 10], section 11 of the Sentencing Act 2017 (SA) also prescribes a number of individual sentencing factors that a court can take into account when determining and imposing sentence. These factors are the same regardless of whether the defendant pleads guilty or is found guilty. These factors include:

In determining the sentence for an offence, the court must not have regard to any of the following:

See Sentencing Act 2017 (SA) ss 11(4) and 11(7).

However, the fact that a defendant has participated in an intervention program, and any achievements in such a program, may be considered as relevant to sentence [see s 11(6)].

In sentencing a person charged with contravening an intervention order pursuant to section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), the court can consider whether the respondent has participated in, or performed badly in, an intervention program, i.e. section 11(7) of the Sentencing Act 2017 (SA) does not apply - see section 31(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

Aggravating factors are those factors particular to the offence, the victim or the defendant which may warrant a higher penalty. The Criminal Law Consolidation Act 1935 (SA) prescribes specific maximum penalties for basic and aggravated offences [see s 5 for interpretation]. A charge for an aggravated offence laid in accordance with the Criminal Law Consolidation Act 1935 (SA) must specifically state the circumstances alleged to aggravate that offence [see s 5AA(3)]. The following highlights the factors outlined in the Criminal Law Consolidation Act 1935 (SA) which aggravate an offence:

Circumstances particular to the offence:

Factors particular to the victim:

Factors particular to the offender:

Section 5AA of the Criminal Law Consolidation Act 1935 (SA) does not erode the general discretion of a court from weighing all factors relevant to the offence when determining sentence [see s 5AA(6)]. For example, a defendant may be charged with a basic offence, but the facts put to the court during sentencing submissions support an aggravated form of the charge being laid. In this situation the court would still consider the aggravating factors but would be limited to the penalty prescribed for the basic offence [see s 5AA(6) examples 1 and 2].

All sentencing courts have a duty to take into account all relevant factors during the sentencing process for all criminal offences, including aggravating factors. Aside from the aggravating factors listed above, some other factors often considered as aggravating include:

Mitigating factors are those connected to the commission of the offence, the defendant or the victim which the sentencing court consider as meriting a lesser penalty. There are numerous mitigating factors and much case authority in relation to them [see Lunn’s Criminal Law SA Online]. A few examples of mitigating factors are:

The defendant entering a guilty plea in relation to the offence is a factor to be taken into consideration at sentencing.

As of 2013, a legislated scheme providing for a reduction of sentence for early guilty pleas was introduced and provided for in the previous Criminal Law (Sentencing) Act 1988 (SA). This scheme continues to operate in the Sentencing Act 2017 (SA).

On 2 November 2020, the scheme was further reformed with the commencement of the Statutes Amendment (Sentencing) Act 2020 (SA). The amending Act reduces the percentage amounts previously available to a defendant under section 40 of the Sentencing Act 2017 (SA) and expands the general criteria for which courts must consider when determining an early guilty plea sentence reduction.

The Sentencing Act 2017 (SA) provides for a reduction by up to 40% for early guilty pleas in the Magistrates Court [see Sentencing Act 2017 (SA) s 39] and up to 35% (25% for serious indictable offences) for matters in the higher courts [see s 40]. Under these provisions, the earlier the guilty plea is in the court process, the greater the discount in sentence. For a detailed outline of early guilty pleas, see: Guilty Pleas Chapter.

In determining the relevant reduction in sentence, the court can give regard to factors including:

See Sentencing Act 2017 (SA) ss 39 and 40.

Section 41 of the Sentencing Act 2017 (SA) outlines the process the court must follow to apply the sentencing discounts.

For a more detailed outline of these processes see Guilty Pleas Chapter.

The Sentencing Act 2017 (SA) provides for a scheme offering potential sentencing reductions for people who cooperate with law enforcement agencies. In order for a person assisting with a law enforcement agency to receive a reduction in sentence, they must meet the following criteria:

see Sentencing Act 2017 (SA) s 37(1).

Under these provisions, the court is able to reduce the sentence it would have otherwise imposed by such a percentage as the court thinks appropriate [see s 37(2)].

In determining what percentage discount to apply to the sentence, the court can consider:

along with various other factors outlined in section 37(3) of the Sentencing Act 2017 (SA).

If a person who received a reduction in sentence under section 37 later withdraw their cooperation with the law enforcement agency, the DPP can apply to the court to have the person resentenced [see s 42].

Similarly, a defendant who is serving a custodial sentence and who later cooperates with a law enforcement agency can apply to the court to have their sentence quashed and a new, reduced sentence imposed instead [see s 43].

For more information on this scheme, see the Duty Solicitor Handbook Guilty Pleas chapter.

The character and antecedents of the defendant are factors to be taken into account at sentencing [see Sentencing Act 2017 (SA) s 11(1)(d)]. The terms “character” and “antecedents” usually refer to the defendant’s previous offender history and convictions which provide the sentencing court with an insight into the character of the defendant. Previous convictions of a similar nature to the offence(s) for which the defendant is to be sentenced can affect the weight given to factors such as deterrence, community safety and retribution.

The prosecutor must provide the sentencing court with the particulars of an offence in relation to any injury, loss and damage arising from the offence (and any other offence to be taken into account) where this information is readily accessible and has not been provided to the court through evidence or a pre-sentence report [see Sentencing Act 2017 (SA) s 13(1); s 5 for definition of injury]. The prosecutor must provide the sentencing court with particulars of any injury, loss or damage arising from a course of criminal conduct involving acts of the same or similar character of which the offence for which sentence is to be imposed forms part [see s 13(1)(b)(ii)]. Where a person expresses a wish to the prosecutor that they do not wish any particulars about their injury, loss or damage to be conveyed to the court, the prosecutor may refrain from providing those particulars to the court [see s 13(2)]. The validity of a sentence is not affected by non or insufficient compliance with these provisions [see s 13(4)].

Due to the seriousness of the offending required before a victim impact statement may be tendered to the court, it is unlikely a duty solicitor would encounter such a statement in the course of their duties. This information has been included for completeness. Any victim of an indictable or a prescribed summary offence who has suffered injury, loss or damage arising from that offence may provide the sentencing court with a written victim impact statement [see Sentencing Act 2017 (SA) s 14]. A prescribed summary offence is a summary offence that resulted in death, total incapacity or serious harm [see s 14(7) for extended definition of prescribed summary offence, serious harm and total incapacity].

A person who has written a victim impact statement can request that they (or someone else) be afforded the opportunity to read it aloud to the court, or that it be considered in sentencing without being read aloud in court [see ss 14(2)(a), 14(2)(b) and 14(2)(c)]. If the court considers that there is good reason to do so, it may allow a person who wishes to read a victim impact statement to the court to do so via an audio visual link or audio recording [see s 14(3)].

In determining sentence for an offence, the prosecutor or Commissioner for Victims Rights may also provide the court with a neighbourhood impact statement, or a social impact statement - see section 15 of the Sentencing Act 2017 (SA).

A copy of a victim impact statement must be made available to the defendant or their counsel for inspection and the defendant may make submissions to the court in relation to the statement [see Sentencing Act 2017 (SA) s 16(3)].

Where a guilty plea is entered and the Magistrate is considering a sentence of imprisonment, the Magistrate may order a pre-sentence report for information about:

See Sentencing Act 2017 (SA) s 17.

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 [see Guilty Pleas chapter for detailed information].

A sentence of imprisonment cannot generally be suspended in relation to a defendant deemed to be a serious firearms offender and for a serious firearms offence - see section 50 and 51 of the Sentencing Act 2017 (SA).

The court cannot substitute penalties or impose a single penalty under section 25 in relation to the penalty that would otherwise be imposed for a serious firearms offence [see Sentencing Act 2017 (SA) ss 25, 49 and 51]. This means that a home detention order or intensive correction order cannot be made where a serious firearms offender is being sentenced for a serious firearms offence [see ss 25, 51(1)(c), 70(1)(b)(ii)(D) and 80(1)(b)].

See section 49(1) for definition of serious firearms offence and serious firearms offender.

On 14 November 2020, sections 52, 53 and 55 of the Sentencing Act 2017 (SA) were amended by the commencement of the Sentencing (Serious Repeat Offenders) Amendment Act 2020. The amended provisions apply in relation to a sentence imposed on or after 14 November 2020, regardless of whether the offence was committed prior to this date.

In certain circumstances, a defendant may be deemed to be a serious repeat offender [see Sentencing Act 2017 (SA) s 53]. If a defendant is deemed to be a serious repeat offender, the court is not bound to ensure that the sentence it imposes is proportional to the offence, and the non-parole period it imposes must be at least four-fifths of the sentence [see ss 54(1)(a) and 54(1)(b)].

However, a sentencing court may declare that the serious repeat offender sentencing provisions above will not apply, if a defendant satisfies the court (by evidence given on oath):

Evidence given under oath could include psychological or medical reports in affidavit form (with the report writer being the deponent of the affidavit).

[s 54(2)].

A defendant is deemed to be a serious repeat offender if they have been convicted at least three serious offences on separate occasions, and have been sentenced on each occasion to a term of imprisonment (excluding wholly suspended sentences, or a community based custodial sentence only) [see s 53(1)(a)]. A serious offence includes a serious firearms offence under Division 3 of the Act, and prescribed offences (for example- breaches of intervention orders involving violence or threat of violence, commercial drug offences, serious and organised crime, arson, serious criminal trespass-residential, and offences against the person) where the maximum penalty prescribed for the office is at least 5 years imprisonment.

A defendant may also be deemed to be a serious repeat offender if they have committed, at least two serious offences sexual offences on separate occasions [see s 53(1)(b)]. Serious sexual offences includes certain offences under Division 11 of the Criminal Law Consolidation Act 1935 (SA) where the victim was aged under 14 years the time of the offence, and sexual exploitation of person with a cognitive impairment.

Part 3 Division 5 of the Sentencing Act 2017 (SA) regulates sexual predators who have been found guilty of certain offences and are deemed to be incapable of controlling, or unwilling to control, their sexual instincts. The Supreme Court, if it finds that a defendant should be dealt with pursuant to these provisions, can impose an indeterminate sentence when sentencing the defendant [Sentencing Act 2017 (SA) s 57]. An offender subject to an indeterminate sentence cannot apply for parole, but can apply for release on licence [see s 59]. In order to be released on licence the offender must satisfy the Supreme Court that they are both capable of and willing to control their sexual instincts, and that they no longer pose a risk to the community [see s 59(1a)].

Applications are governed by Chapter 2 Part 5 of the Uniform Special Statutory Rules 2022 (SA).

If a court is sentencing an offender in relation to a child sexual offence, then it must have regard to the sentencing practices, principles and guidelines applicable at the time of sentencing (not at the time of the offence) [Sentencing Act 2017 (SA) s 68].

For the purposes of section 68 of the Sentencing Act 2017 (SA), a child sexual offence means a sexual offence committed in relation to a person under the age of 18 years; and a sexual offence has the same meaning as section 28 of the Sentencing Act 2017 (SA).