Where a defendant is found guilty of a number of offences for which they were charged on one or a number of Informations, section 26 of the Sentencing Act 2017 (SA) empowers the Court to impose one penalty for all or some of the offences. However this does not apply to some prescribed designated offences, which include:
[See Sentencing Act 2017 (SA) ss 26(2) and 26(3).
If any of the offences in respect of which one sentence is being imposed involved different victims or were committed on different occasions, the Court must indicate the sentence that would have been imposed in respect of each such offence had the one penalty not been applied [s 26(2a)].
One penalty cannot be applied to offences with different types of penalties, such as where some offences have fines only penalties and other offences imprisonment only penalties. Nor can the sentence exceed the total of the maximum penalties that could be imposed in respect of the offences to which the sentence relates. A court may consider imposing one penalty where the offences occurred as part of a single course of conduct. For example, a person who is arrested by the police for disorderly behaviour, who then assaults one police officer and resists arrest by another police officer, may receive one penalty when sentenced for all three charges.
Where the Court imposes separate sentences for each offence the Court can order that the sentences be served concurrently, or may increase the time the person will spend in prison by directing that the sentences be served cumulatively. For example, see:
A concurrent sentence is a sentence which is ordered to run at the same time as another sentence.
A cumulative sentence is a sentence which is ordered to begin at the end of another sentence.
In circumstances where the Court considers good reason exists for doing so, section 25(1) of the Sentencing Act 2017 (SA) provides that the Court may reduce the minimum penalty prescribed for an offence. In doing so, the Court must take into consideration the character, antecedents, age or physical or mental condition of the defendant, or the fact the offence was trifling, or any other extenuating circumstances. This section does not allow the Court to impose less than the mandatory minimum disqualification of licence, for example, in drink driving matters.
In circumstances where a sentencing court determines good reason exists for doing so, sections 25(2) and 25(3) of the Sentencing Act 2017 (SA) provides that the Court may impose substitute penalties to those penalties prescribed as follows:
Duty solicitors will often find themselves conducting guilty pleas on the basis of the Sentencing Act 2017 (SA) section 23 (trifling applications) and section 24 (penalty without conviction). The following provides information about these sections and provides suggestions for the making of such submissions in mitigation of penalty [see also Guilty Pleas chapter].
Sometimes a defendant pleads guilty or is found guilty of an offence which is so trifling the court considers it inappropriate to impose any penalty. The court may then consider dismissing the charge without recording a conviction for the offence or record a conviction and discharge the defendant without penalty [see Sentencing Act 2017 (SA) s 23(2); and Guilty Pleas chapter for more information]. For an offence to be considered trifling, it must be so far out of the ordinary or typical case of its type that Parliament cannot have contemplated it as falling within the statutory prohibition so as to invoke the full rigour of the law [see Coles Myer Limited v Catt (1992) 58 SASR 298; at 308-9 for an example of the reasoning]. Evidence on oath is required before a court can determine whether an offence is trifling [see Dean v Police [2008] SASC 55].
| LIMITED USE OF TRIFLING APPLICATIONS |
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On occasion, the duty solicitor may encounter a situation which warrants a trifling application during the course of submissions for a guilty plea. However, it should be noted that this section of the Act is less widely used by courts than those of section 24 which provides for a penalty without conviction (as discussed below). |
The provisions of the Sentencing Act 2017 (SA) section 24 enable the court to refrain from imposing a conviction in a much broader range of circumstances than those limited to trifling applications (see above). Section 24 allows the sentencing court to impose a penalty without recording a conviction when the court:
In relation to submissions on the basis the defendant is unlikely to commit the offence again, the duty solicitor might submit, for example:
In relation to submissions whether good reason exists, the type of submissions a duty solicitor could make is largely self evident. However, it is important to note that a youth dealt with in the Youth Court may well have no conviction recorded a number of times, unless the offence is serious.
| ADVISING THE DEFENDANT ABOUT SECTION 24 |
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| The duty solicitor should give the defendant very clear advice about what a successful without conviction application means. A record of the matter is kept so that if the person appears in court again the Court knows that they are not a first offender. However, if completing a job or visa application for example, if asked: ‘Do you have a criminal conviction?’ the answer ‘no’ can be given. However if the question refers to a criminal “charge” or “record”, the answer must be ‘yes’. |
The following outlines some situations where the duty solicitor should consider making an application to the Court for a penalty without conviction.
An application in accordance with section 24 should always be made if the matter is a first offence and not too serious, such as shoplifting, damage property (where the quantum of damage is not significant), street offences and so forth.
It may be possible to argue that certain previous convictions are not relevant to the exercise of the discretion not to convict in a particular case, such as where that person has prior convictions for drink driving offences but comes before the court for shoplifting or some relatively minor offence which is out of character.
The sentencing court will not usually consider a without conviction application in the following circumstances:
The main thing to look for in deciding whether to ask the Magistrate to invoke section 24 is the defendant's prior criminal record. Generally speaking, adult courts will hesitate to use section 24 where a person has a prior conviction (but see above, where these convictions are not relevant and the present matter is minor).
The section applies only to cases where the court imposes either a fine or community service work. The court cannot refrain from recording a conviction if imprisonment is imposed. It can refrain from recording a conviction if a good behaviour bond is imposed, although section 97 of the Sentencing Act 2017 (SA) applies rather than section 24.
Section 16 cannot be used to reduce compulsory licence disqualifications [see Road Traffic Act 1961(SA) s 47B(3); Criminal Law Consolidation Act 1935 (SA) s 86A].
While section 25 of the Sentencing Act 2017 (SA) provides for the court being able to reduce, add or substitute penalties in certain circumstances, it cannot be used to argue for a reduction in compulsory licence disqualifications [see Road Traffic Act 1961(SA) s 47B(3); Criminal Law Consolidation Act 1935 (SA) s 86A].
In terms of recording a conviction, most traffic matters ordinarily attract a conviction. However, with minor traffic matters it is sometimes possible to obtain a conviction without penalty.
See for example: Brooks v Police [2014] SASC 22
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