A court has the ability to sentence a defendant to a custodial sentence.
Alternative, community based orders can also serve as penalties. These involve the defendant serving their sentence (whether suspended or not) in the community, subject to certain conditions. Such penalties include:
These penalties are explored further below.
These penalties are in addition to the ability of the court (where appropriate) to:
The Commission generally instructs its duty solicitors that they should not conduct guilty pleas where there is a real likelihood that the sentence imposed will be one of imprisonment, whether immediate or suspended [see Guilty Pleas chapter]. Imprisonment is discussed below for the sake of completeness.
Section 10(2) of the Sentencing Act 2017 (SA) prohibits a penalty of imprisonment being imposed unless the court decides that:
The Act is clear that the primary sentencing purpose – to protect the safety of the community – must be the paramount consideration when a court is determining and imposing sentence [see ss 3 and 9].
In determining a sentence, a court is also required to apply the common law concepts of proportionality, parity and totality, and must follow the principle that a defendant may not be sentenced on the basis of having committed an offence for which they were not convicted of [see s 10(1)].
Imprisonment is a strong possibility in the following cases:
Since September 2016 courts in South Australia have been able to, in some circumstances, impose home detention orders [see Part 3, Division 7, Subdivision 1 of the Sentencing Act 2017 (SA)].
This is available for sentences ordered after 1 September 2016, even if the offence happened before that date. The only exception to this is where a sentence which has been already imposed, has been quashed and the defendant re-sentenced [s 7 Statutes Amendment (Home Detention) Act 2016 (SA)].
The court can order that the defendant serve a sentence on home detention if [s 71(1)]:
A home detention order cannot be made where:
Pursuant to section 70(1)(b)(ii), a home detention order cannot therefore be made where a person who is a serious firearms offender is being sentenced for a serious firearms offence [see ss 25 and 51(1)(c)].
The paramount consideration of the court when determining whether to make a home detention order is to protect the safety of the community [s 69 (2)]. The court also has to take into consideration the impact that the home detention order may have on [s 71(3)]:
There are a number of circumstances where a home detention order must not be made, including:
For definitions of serious sexual offence, prescribed serious sexual offence,serious and organised crime offence and designated offence, see Sentencing Act 2017 (SA) s 71(5); or see Suspended Sentences.
The prescribed circumstances referred to in section 71(2)(b)(ii) relate to the age of the defendant and where the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim, are such that it is appropriate that a home detention order be made [see s 71(5) – definition of prescribed circumstances]. For the purpose of determining the age difference between the defendant and victim where the victim was a fictitious person represented to be a real person, consideration must be given to the age the defendant believed the victim to be [s 71(6a)].
Special reasons for the purposes of section 71(2)(b)(ii) can only be where [s 71(4)]:
A home detention order must not be made unless the court is satisfied that the home listed in the order is suitable and available for the detention and that the defendant will be looked after there [s 71(2)(c)].
A home detention order must also not be made if the defendant would serve the home detention:
Finally, a home detention order must not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer [s 71(2)(e)].
Section 72 of the Sentencing Act 2017 (SA) sets out many conditions of home detention orders, including:
See section 72 of the Sentencing Act 2017 (SA).
Breach of Home Detention
Failing to comply with, or breaking a condition, of a home detention order is an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
See Sentencing Act 2017 (SA) s 78.
A breach of a home detention order may result in revocation of the order. The defendant may also be required to serve the balance of the sentence in custody as opposed to on home detention [see s 73].
An intensive correction order can be made in circumstances where:
See Sentencing Act 2017 (SA) s 79 (1).
Like home detention orders, intensive correction orders are issued when the court determines it is not appropriate to suspend the sentence imposed under a bond [Sentencing Act 2017 (SA) s 81 (1)(b)]. An intensive correction order is intended to provide the court with an alternative sentencing option where the court considers that there is a genuine risk the defendant will re-offend if not provided with a suitable intervention program for rehabilitation purposes [s 79(1)(b)].
In issuing an intensive correction order, the court must be satisfied that the rehabilitation of the defendant is more likely to be achieved by allowing the defendant to serve the sentence in the community while subject to strict conditions [s 79 (2)].
Section 79 (3) of the Sentencing Act 2017 (SA) mandates that the paramount consideration of the court when making an intensive correction order must be to protect the safety of the community. The court is also required to consider the impact the order may have on the victim of the offence, the spouse or domestic partner of the defendant, and any person residing at a residence where the defendant may be released to [s 81(4)].
Intensive correction orders cannot be made in relation to any offences where a reduction, mitigation or substitution of penalty is expressly prohibited [s 80 (1)(b)]. This would include where a serious firearms offender is being sentenced for a serious firearms offence - see sections 25, s 51(1)(c) and s 80(1)(b).
An intensive correction order cannot be made where the offence involves a terrorist act [s 80(1)(ab); see part 5.3 of the Criminal Code Act 1995 (Cth) for definition of terrorist act].
An intensive correction order must not be made if the defendant is being sentenced:
See Sentencing Act 2017 (SA) s 81(3); for definition of designated offence, serious and organised crime offence, and serious sexual offence see s 81(5).
Section 82 of the Sentencing Act 2017 (SA) sets out the conditions of an intensive correction order, including (amongst others):
Further, the court has the ability to impose ‘such other conditions as it thinks appropriate’ which can include conditions that:
An intensive correction order has a maximum duration of two years [s 81(1)(a)] but the term imposed should reflect the proposed term of imprisonment. When an intensive correction order is made, no non-parole period is fixed. Therefore, the defendant will serve the entirety of the sentence subject to the intensive correction order [see s 47(5)(a)(ii)].
If a defendant subsequently breaches a condition of an intensive correction order, the court has the ability to:
If an intensive correction order is varied, or revoked, the court must notify Correctional Services [Sentencing Act 2017 (SA) s 84].
A person who is reasonably suspected of committing a breach of a condition of an intensive correction order may be apprehended, without warrant, by a police officer or community corrections officer and detained pending proceedings relating to the alleged breach [s 90, see also s 83].
It is an offence to contravene or fail to comply with a condition of an intensive correction order, punishable by a maximum penalty of a fine of up to $2 500 or imprisonment for 6 months [s 91].
A suspended sentence is considered to be a significant penalty. Before suspending a sentence of imprisonment a court must be satisfied firstly that a sentence of imprisonment is justified having regard to the sentencing purposes, principles and factors [see Sentencing Act 2017 (SA) ss 3, 4, 10, and 11].
Once a sentence of imprisonment is imposed, the court may suspend the sentence where it thinks good reason exists for doing so and on condition that the defendant enter into a bond to be of good behaviour and comply with all other conditions of the bond [see s 96].
Every suspended sentence bond under section 96 is subject to a condition prohibiting the defendant from possessing a firearm, any part of a firearm or ammunition and the further condition that the defendant submit to gunshot residue testing as reasonably required [see s 96(2)].
The bond, which the defendant must enter into before the sentence is suspended, may also contain a direction that the defendant surrender any firearm, part of a firearm or ammunition owned or possessed by the defendant (without any criminal liability attaching to compliance), as well as any of the other conditions set out in section 98 of the Act [see Good Behaviour Bonds above].
The term of the suspended sentence bond is specified in the bond itself, and there is no prescribed legislative upper limit on the term [see s 99].
The sentence of imprisonment is extinguished upon expiration of the bond [see s 96(8)].
A sentence of imprisonment cannot generally be suspended in relation to a defendant deemed to be a serious firearms offender [see s 51(1)], unless the Court is satisfied by the defendant's evidence given on oath that:
See further the Law Handbook on Suspended Sentences.
In addition the sentencing court may consider suspending part of the period of imprisonment after the defendant has served a specified period in prison (being not less than one month) [see Sentencing Act 2017 (SA) s 96(4)].
It is a sentencing error for this option to not be considered by the sentencing court in situations where it could be applied.
The period of imprisonment the defendant is liable to serve must be more than three months but less than one year [see s 96(4)]. This option does not apply where the sentence of imprisonment is exactly three months or exactly twelve months.
The remainder of the sentence of imprisonment is suspended providing the defendant enters a good behaviour bond which takes effect upon their release from prison [see s 96(4)(b)].
Where a defendant is being sentenced to a period of imprisonment of 2 years or more for a prescribed designated offence, the court may order that the defendant serve a period of imprisonment (which must be at least one-fifth of the non-parole period fixed) and suspend the remainder of the sentence with the defendant entering into a bond [see s 96(5)].
| EXPLAIN THE MEANING OF “SUSPENSION” TO THE DEFENDANT |
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| A suspended sentence is nevertheless a sentence of imprisonment and not a “soft option” or “no penalty at all”, as some have chosen to describe it. A breach of the bond associated with a suspended sentence renders the defendant liable to serve a term of imprisonment. So, for the period of the bond, the probationer has the threat of a prison term hanging over their head. It is very important for the duty solicitor to make sure the defendant understands this. |
The reasoning when dealing with a breach of bond application is outlined in the following steps:
1. Has the probationer failed to comply with conditions of the bond?
Where the Court is satisfied the probationer has failed to comply with a condition of the suspended sentence bond, the Court may revoke the suspension and order the sentence be carried into effect [see Sentencing Act 2017 (SA) s 114(1)(c); see however exceptions contained in ss 114(1)(c)(ii) and 114(3)].
2. Are there proper grounds to excuse the failure to comply with conditions of the bond or was the failure to comply with the bond trivial?
If the Court is satisfied the failure to comply with the conditions of the bond was trivial or there are proper grounds upon which the failure should be excused, the Court can refrain from revoking the suspension [see Sentencing Act 2017 (SA) ss 114(1)(c)(ii) and 114(3); and R v Buckman (1988) 47 SASR 303 for relevant circumstances]. The Court must consider matters related to the actual breaching offence such as a difference in character between the breaching offence and the offence(s) relating to the bond, or whether there is a marked disproportion in penalty between the breaching offence and the original offence. The Court may refrain from revoking the suspension and extend the term of the bond (not exceeding one year), extend up to six months the period allowed to complete any remaining community service, cancel all or some unperformed hours of community service, revoke or vary any other condition of the bond [see 114(3)(a)]. Where the bond has expired, the Court may require the probationer to enter into a new bond for up to twelve months [see s 114(3)(c)].
3. Are there any special considerations to justify a reduction in the original penalty of imprisonment?
If the Court decides to revoke the suspension of the sentence, it may reduce the term of the sentence where there are special circumstances justifying such a reduction [see Sentencing Act 2017 (SA) s 114(5)(a)]. Special circumstances are circumstances which have arisen after the imposition of the suspended sentence which, had they existed at the time of the sentence, would have resulted in a shorter sentence [see R v Buckman (1988) 47 SASR 303 for relevant considerations]. Some examples of special circumstances are demonstrated rehabilitation, the need to care for young children or elderly, and subsequent physical or mental health issues.
In addition, the Court may consider credit for time spent in custody since initiation of the breach proceedings (but not for the offences constituting the breach) [see Sentencing Act 2017 (SA) ss 114(5)(b), and 114(5)(c); R v Cartwright [1990] SASC 2548; Police v Saunders (2003) 229 LSJS 97; [2003] SASC 268].
The Court may order the suspended sentence be cumulative upon any other current sentence(s) of imprisonment or imprisonment to be served [s 114(5)(e)]. Where a court other than the probative court sentences a probationer for the original offence, that court cannot impose a sentence that the probative court could not have imposed [see s 114(6)].
Another important sentencing option is the good behaviour bond, under which a person found guilty of an offence promises to be of good behaviour for a specified period. The bond may require supervision [Sentencing Act 2017 (SA) s 98(1)(a)], and may require the payment of a specified sum of money [s 100].
In the Youth Court, an order in these terms is referred to as an obligation [see Young Offenders Act 1993 (SA) s 26].
A good behaviour bond can be ordered:
The term of the good behaviour bond will be specified in the bond, and there is no upper limit on the term [see s 99].
In order to impose a bond (either as part of a suspended sentence or as a stand alone penalty) the court must first establish that there is good reason for doing so [see ss 96(1) and 97(1)].
Where a defendant has been discharged on the condition that they enter into a bond, the bond may require them to appear before the court for sentence, or conviction and sentence, if they have failed to comply with a condition of the bond [see ss 97(1)(c) and 97(3)(b)]. A defendant cannot be called upon for sentence for the original offence if that is not an express term of the bond [see s 97(3)(b)].
Conditions of a bond
In addition to a condition that the defendant be of good behaviour, the court may impose any other conditions in the bond that it thinks fit [see s 98 for a list of conditions that may be imposed].
Such conditions may require:
*If a bond requires the payment of compensation to a person for injury, loss or damage resulting from the offence, compensation must be paid before the bond expires. The court may not otherwise specify the time or manner in which the sum of compensation is to be paid [see Sentencing Act 2017 (SA) s 122]. The payment of compensation ordered under the Sentencing Act 2017 (SA) is managed by the Fines Enforcement and Recovery Unit and payment arrangements may be organised through that Unit.
A court can make orders to vary or revoke any condition of a bond, or for the discharge of bond [see Sentencing Act 2017 (SA) s 103].
Where a court is satisfied that a probationer has committed a breach of bond it has a number of powers, including to:
If a probationer who has committed a breach of bond is subject to a suspended sentence of imprisonment, and the court is satisfied that the breach was trivial or there are proper grounds to excuse it, the court may refrain from revoking the suspension and instead:
Where a court other than the probative court sentences a probationer for the original offence, that court cannot impose a sentence that the probative court could not have imposed [see Sentencing Act 2017 (SA) s 114(6)]. This would apply to a bond with a condition that the probationer return to court for sentence should a condition of the bond be breached. The probative court is the court that made the original bond order [see s 5 for definition of probative court].
The previous Criminal Law (Sentencing) Act 1988 (SA) was amended in 1993 to give courts the power to send offenders to such education programs as approved by the Attorney-General for the offence for which the defendant was found guilty, as a condition of a bond [see the previous Criminal Law (Sentencing) Act 1988 (SA) ss 42(1)(ga) and 42(5)]. To date the only such program aimed to address a particular category of offending was one which attempted to “re-educate” those appearing for shoplifting. This program is no longer available. The Sentencing Act 2017 (SA), which came into operation on 30 April 2018, also provides for an ability of the court to send offenders to education programs as a condition of a bond [see Sentencing Act 2017 (SA) s 98(j)]. It is not clear whether further education programs of this kind will be developed.
The Department for Correctional Services currently offers a number of education programs which are available for those people subject to supervised bonds and which are designed to address the criminogenic needs of offenders. The programs available are:
A person can be required to undertake community service in a number of circumstances:
Community service can also be undertaken in certain circumstances pursuant to a voluntary agreement between a debtor and the Fines Enforcement and Recovery Unit to offset an outstanding debt (such as a pecuniary debt or expiation notice) [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15 and 20]. As this is a voluntary agreement, it is not court ordered. If an agreement is reached between the Fines Enforcement and Recovery Unit and a debtor for the debtor to complete a period of community service, and the debtor then defaults on that agreement, the Chief Recovery Officer has a wide range of enforcement powers as contained in Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA).
A copy of an intensive correction order that requires the performance of community service will be provided to Correctional Services and a community corrections officer will be assigned to the person [Sentencing Act 2017 (SA) s 85 (1)].
An order must not exceed a total of 300 hours, with a minimum requirement of 15 hours [s 86 (1)(a)]. However, where community service is ordered following an application by the Fines Enforcement and Recovery Unit for failure to pay a fine or pecuniary debt, there is no limit on the number of hours that can be ordered - see Fines Enforcement and Debt Recovery Act 2017 (SA) s 46(7). There must be a time specified within which the community service work is to be completed, and this cannot exceed 18 months [s 86 (1)(b)]. Section 86 of the Sentencing Act 2017 (SA) does not apply in relation to the performance of community service by youths (see instead the Young Offenders Act 1993 (SA) s 49A].
Community service can be arranged for most people and it is arranged through Correctional Services. A person subject to a community service order will have a community corrections officer assigned to them [see Sentencing Act 2017 (SA) s 107(1)]. A person must not be required to perform community service at a time which would interfere with renumerated employment or any training to assist in obtaining employment, or which would interfere with an ability to care for dependants [see Sentencing Act 2017 (SA) s 105(1)(h); Young Offenders Act 1993 (SA) s 49A for restrictions relating to youth]. Performance of community service may not be required at such times as to interfere with a person’s religious practice or beliefs [see Sentencing Act 2017 (SA) s 105(1)(i)]. Sometimes suitable community service work cannot be found for a person due to physical or mental infirmity [see s 104(1)]. When this occurs, the Court may discharge the order or revoke the condition imposing community service [see s 104(2)].
Community service orders can be varied or revoked by the court and the time to complete the order may be extended by up to six months by either the court or the Minister for Correctional Services [Sentencing Act 2017 (SA) s 110].
If a person fails to obey a direction given to them by a community corrections officer in relation to the community service ordered, the Minister for Correctional Services can increase the number of hours of service that a person is required to perform, by not more than 24 aggregate hours [see ss 89(1) and 112(1)]. This can occur without commencing court proceedings, although an application for a breach of the order may still be made [see ss 112 and 113].
The Minister for Correctional Services also has the power to cancel unperformed hours of community service [see s 111].There must be substantial compliance with the original requirement, together with no apparent intention to deliberately evade the obligations under the order and a sufficient reason for not insisting on the performance of some or all of those hours. The Minister cannot waive performance of more than ten hours under the one bond or order.
| ISSUES RELATED TO COMMUNITY SERVICE ORDERS |
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| If the defendant has a physical or mental disability, he or she may not be suitable for community service. If so, the duty solicitor should make this clear to the Court during the course of submissions in mitigation of penalty. |
Where a defendant fails to complete a court-ordered community service order, that penalty can be enforced through imprisonment [see Sentencing Act 2017 (SA) s 115]. Note that a period of imprisonment can be imposed on court-ordered community service orders only. If a debtor has agreed with the Fines Enforcement and Recovery Unit to complete a period of community service in lieu of paying a fine, the period of community service is not court ordered but rather a voluntary agreement entered into between the parties. In these instances, if the debtor then defaults on that agreement, the Chief Recovery Officer can enforce the fine through a wide range of enforcement powers contained in Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA) (but the enforcement powers do not include a period of imprisonment).
The term of imprisonment to be served by default on a court ordered community service order is one day for each seven and a half hours of community service remaining, or six months imprisonment (whichever is the lesser period) [see ss 115(2)(a) and 115(2)(b)]. Where the court is satisfied that the failure to comply with the community service order was trivial or there are proper grounds on which the failure should be excused the court may refrain from issuing the warrant of commitment (for imprisonment) and may extend the term of the order up to six months, impose a further order for community service for up to six months (where the original order has expired) or cancel all or part of the unperformed hours of community service [see s 115(7); s 110 for extending bonds in conjunction with extending community service orders; s 110(3) for extending periods of community service limited to six months in relation to bond applications].
Where failure to comply with a community service order is found to be excusable due to the defendant gaining renumerated employment since the making of the order (and the person now has the means to pay the fine without incurring hardship on dependants) the court may revoke the order and impose a fine [see Sentencing Act 2017 (SA) ss 115(8) and 115(9)].
| WARN ABOUT IMPRISONMENT |
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| Where the defendant may receive a penalty of community service it is important that the duty solicitor advise them of the potential for imprisonment should they fail to meet this obligation. |
Performing community service in lieu of paying a fine or pecuniary sum may occur in agreement with the Chief Recovery Officer of the Fines Enforcement and Recovery Unit, where the Chief Recovery Officer is satisfied that the debtor does not have, and are not likely within a reasonable time to have, the means to satisfy a court fine or order for costs or levies without that person or his or her dependants suffering hardship [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15 and 20]. In that case the Chief Recovery Officer may agree for the debtor to undertake a period of community service and the amount owing for the debt will be reduced accordingly. Should a debtor who has agreed with the Fines Enforcement and Recovery Unit to complete a period of community service then default on completing the service, the Chief Recovery Officer may exercise a wide range of enforcement powers as contained in Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA) to enforce the debt. The enforcement powers do not include imposing a term of imprisonment.
A period of community service can also be ordered by the court upon application by the Chief Recovery Officer, where other enforcement processes have failed or are inappropriate [see s 46]. In these instances, where the court has ordered a period of community service to be undertaken pursuant to section 46, any default on such a court order can result in a period of imprisonment being imposed on the debtor [see s 47].
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