|THE ROLE OF THE DUTY SOLICITOR|
An important aspect of duty solicitor work is providing advice for unrepresented defendants about whether to plead guilty to a charge, where there is sufficient time to take detailed instructions and give considered advice. Another role of the duty solicitor, where it is proper to do so, is to conduct simple guilty pleas for people who would be seriously disadvantaged without such assistance and where the penalties are not serious. For more serious matters, where detailed preparation is required, the duty solicitor may be called upon to assist a defendant to apply for their matter to be remanded or adjourned to allow time for them to seek legal advice and representation. The duty solcitior needs to be able to determine whether a matter is simple, or one requiring the defendant to obtain legal representation.
To give such advice, or to represent someone on a simple guilty plea, you must be familiar with the elements of offences, maximum penalties and general sentencing principles. This Chapter provides information about some basic sentencing principles and practical guidance for providing advice and/or representation for a simple guilty plea. This Chapter be should be read in conjunction with the Sentencing chapter and the chapters on specific offences [see Role of the Duty Solicitor chapter; Courts and Jurisdiction chapter and Sentencing chapter].
Please note that as of 30 April 2018 the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA)
The following legislative sources are relevant to the conduct of a simple guilty plea:
Sentencing Act 2017 (SA) see ss 3 and 4 for primary and secondary sentencing purposes; s 10 for general principles of sentencing, s 11 for individual sentencing factors; s 23(1) for trifling applications; s 25 for reducing or substituting penalties; s 23 for penalty without conviction; and Sentencing chapter]
Young Offenders Act 1993 (SA) [see s 23 for circumstances where imprisonment can be imposed; s 24 for fines; s 25 for community service; s 26 for bonds; s 28 for licence disqualification; and Youth Court chapter]
Familiarity with case law relating to sentencing principles and to specific offences is important. Some reference services (subscription only) which provide invaluable guidance and commentary in relation to the conduct of guilty pleas are:
Penalty summaries are a useful resource for a busy duty solicitor and provide easy reference for the maximum penalties imposed for offences. The following penalty summaries are available online:
(** Please note: Always check the currency of these tables - use them only as a starting point and check for recent amendments to penalties in the legislation)
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)].
*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:
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|
|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.
There is legislated scheme that provides for a reduction of sentence by up to 40% for early guilty pleas in both the Magistrates Court [Sentencing Act 2017 (SA) s 39] and in other courts [Sentencing Act 2017 (SA) s 40].
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 or in other circumstances, prescribed by regulations.
Subject to that 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 39(3)(b), reduce the sentence as if the defendant had in fact pleaded guilty [see section 39(3)].
Reduction of sentence for guilty pleas in other matters - indictable offences
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:
If a defendant pleads not guilty to an indictable offence, and is found guilty but has otherwise complied with all statutory and court procedures and requirements, and has otherwise conducted the case in a cooperative and expeditious manner, they may be entitled to a discount of up to 10% [see s 38].
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)
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 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)].
Where the penalty for an offence is likely to be the imposition of a fine or other pecuniary sum, the duty solicitor must take instructions in relation to the defendant’s ability to pay. The Court should consider any evidence provided by the duty solicitor in relation to the defendant’s means [see Sentencing Act 2017 (SA) ss 120(2) and 120(3)]. The definition of a pecuniary sum includes fines, compensation, sums payable under bonds, costs and the victims of crime levy [see Sentencing Act 2017 (SA) s 5 for interpretation]. For all orders requiring the payment of a pecuniary sum (except the victims of crime levy) the Court must first be satisfied that the means of the defendant are such that they are able to comply with the order and such compliance would not unduly prejudice the welfare of dependants [see ss 120(1)(a) and 120(1)(b)]. The Court could order the payment of a lesser amount where the means of the defendant are inadequate or there would be prejudice to any dependants [see s 120(1)].
in the event the court orders payment of a pecuniary sum, and that sum is not paid or otherwise dealt with, the debtor may face enforcement proceedings by the Fines Enforcement and Recovery Unit. The Chief Recovery Officer of that Unit has a number of enforcement options available to deal with a pecuniary debt - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7, Division 1.
In the course of taking instructions from the defendant, the duty solicitor should consider whether the offence would be considered by the Court so trifling it would be inappropriate to impose any penalty. In this situation the Court may 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; and Sentencing chapter for more detailed information].
In circumstances where the court is considering the imposition of a fine, community service or both, and the Court considers the defendant is unlikely to commit the offence again and good reason exists for not recording a conviction, it may impose a penalty without recording a conviction [see Sentencing Act 2017 (SA) s 24].
Whether good reason exists is assessed taking into account the character, antecedents, age or physical or mental condition of the defendant, or the fact the offence was trifling, or any other extenuating circumstances [see Sentencing Act 2017 (SA) s 24; and Sentencing chapter for more detailed information].
The following outlines considerations for the duty solicitor when approached by a defendant for advice and/or representation in relation to a guilty plea.
All legal practitioners have an ethical duty to give competent and professional advice, including those acting as duty solicitors [see Professional Ethics and Court Etiquette chapter; and Role of the Duty Solicitor chapter]. The following outlines some circumstances where it would be inappropriate for the duty solicitor to provide advice or representation on a plea and where he or she has no obligation to provide such assistance.
A duty solicitor must not provide advice about whether to plead guilty without taking proper instructions and having time to consider the matter in full. Thus, a duty solicitor has no obligation to advise people about whether to plead guilty. This is so even when the duty solicitor is placed under pressure to do so by the defendant or the court.
|COURT REQUESTS FOR DUTY SOLICITOR ASSISTANCE|
|The duty solicitor will regularly receive requests from Magistrates or defendants, while the matter is being held in the court list, to provide the defendant with advice on a plea. The duty solicitor should decline to do so if they do not have time to do it properly. If they are not in a position to give advice, they should: |
tell the defendant why they cannot assist;
advise (and assist) the defendant to apply for legal aid or seek private legal help; and
advise the defendant to return to the courtroom and ask the Magistrate for an adjournment to allow for this to take place.
REMEMBER the duty solicitor's ethical duty to give competent and professional advice is paramount.
The decision whether to provide advice and/or representation in relation to a plea is also influenced by whether there is a real likelihood of a penalty of imprisonment. Where the duty solicitor is asked to assist a defendant and there is a real likelihood of imprisonment, it is important to advise against entering a plea at that time. The defendant should arrange for a legal aid or private solicitor (usually after a grant of legal aid) to represent them and provide them with detailed, considered legal advice.
Where there is no likelihood of imprisonment, the duty solicitor may consider providing the defendant with advice about whether to plead guilty and, if they decide to do this, how to represent themselves in court, taking into account all considerations which would preclude such assistance as outlined in this chapter. The duty solicitor would only consider representing a person on such a matter where the defendant is particularly vulnerable and clearly unable to represent themselves.
|Whenever advising unrepresented defendants about pleas of guilty, or taking instructions before appearing on a plea, it is important for the duty solicitor to make accurate and complete notes of what the defendant tells them and what advice they give the defendant, and to record this on the pink duty solicitor form.|
Where the duty solicitor considers the circumstances allow them to give considered and competent advice, the following steps need to be taken:
1. Check the exact charge(s) with the prosecutor and note the allegations in writing.
2. Take detailed instructions from the defendant.
3. Determine whether, on the defendant’s instructions, the defendant is guilty of the offence(s).
4. Consider whether there is a defence on the basis of the defendant’s instructions.
5. Where there is no defence, advise the defendant of this in a clear and precise manner.
6. Revisit the allegations with the defendant to see if the defendant disagrees with any of the allegations, not in relation to guilt, but as to the seriousness of the offending he or she is admitting and to ensure the defendant agrees with the facts as alleged (a guilty plea is an acknowledgement of the full facts as alleged in the allegations). If there are minor discrepancies, the duty solicitor must attempt to resolve them on the spot with the prosecutor. If they cannot be resolved, the plea cannot be entered that day and the matter will need to be adjourned or remanded to allow for ongoing negotiation with prosecution.
7. Take signed instructions where the defendant instructs that he or she wishes to enter a plea of guilty.
8. Check with the prosecutor whether the defendant has a prior record with relevant convictions and, if so, make a comprehensive written note of it. It is important that the duty solicitor asks prosecution what record they intend to allege.
9. Take instructions from the defendant as to whether he or she admits the prior record and all the details of it.
10. Review the defendant’s instructions and take any further instructions needed to make a plea in mitigation of penalty.
|TAKING INSTRUCTIONS FOR REPRESENTATION ON A PLEA|
In taking instructions, the duty solicitor may wish to categorise their questions as follows:
The duty solicitor may wish to use the guilty plea instruction checklist at the end of this chapter, which is designed to help you compile a structured overview of the defendant’s personal circumstances and their subjective account of the offence.
The duty solicitor should always take, and record, more instructions than necessary to use directly in submissions. The details not used directly will inform and give persuasive character to those instructions on which you decide to focus your submissions. Also, if asked to address the Court in more detail on a particular matter, chances are you will already have the necessary information.
There are people who wish to make a “convenience plea” and wish to plead guilty to get the matter out of the way simply and cheaply, but at the same time they maintain a denial of the offence. Such people may, for example, try to enter a plea of guilty unrepresented to a shoplifting charge but state to the Magistrate that they “forgot to pay”, “did not realise they had the item when they left the shop”, “didn’t know what they were doing because of medication”, or that they struck a victim of an assault charge in self-defence. The Magistrate will not accept this plea, will usually order that it be struck out and recommend that the defendant seek legal advice, often from the duty solicitor, whilst the matter is held in the court list.
Often a defendant will tell the duty solicitor that they want to plead guilty to “get the matter over and done with”. This should always ring warning bells. When this occurs it is important for the duty solicitor to ask the defendant about the following:
|KEEP ACCURATE AND COMPLETE NOTES|
|In either case it is important for the duty solicitor to record on the pink duty solicitor form exactly what instructions the defendant gives and what the duty solciitor has advised. The duty solciitor's only protection against future claims that they “made” the defendant plead guilty is the existence and accuracy of this record.|
The need for the duty solicitor to take accurate notes of instructions and subsequent advice cannot be overemphasised. People have been successful in appealing convictions or penalties due to a miscarriage of justice, on the grounds that they pleaded guilty:
Not only may the defendant appeal in such cases, but the solicitor involved may be the subject of adverse judicial comment when the appeal is heard, and may also be subject to disciplinary proceedings [see Stengle v Wells  SASC S4958 (Unreported, Cox J, 30 April 1985) for the full implications of the principles discussed above; Akpata v Police  SASC 305and Markl v Police SASC 141for similar circumstances].
|ADVISING A DEFENDANT WHO WANTS TO MAKE A CONVENIENCE PLEA|
The advice a duty solicitor gives to a defendant in these circumstances must be circumspect, careful, clear and recorded in detail for possible future reference [see Stengle v Wells  SASC S4958 (Unreported,Cox J, 30 April 1995)]. The duty solicitor should:
Duty solicitors must keep detailed notes of the instructions the defendant has given and their subsequent advice to the defendant.
Defendants should be advised against entering a plea to a charge(s) without legal representation where there is a real likelihood of imprisonment, and the duty solicitor should not generally accept instructions to represent a person on a guilty plea in these circumstances [see previous information in this chapter; and the Sentencing chapter for guidance on the issue of the likelihood of imprisonment]. However, there are some circumstances where the duty solicitor may decide to accept instructions to appear as duty solicitor on a guilty plea where there is a likely penalty of imprisonment.
There are some exceptional cases involving people in custody for whom the duty solicitor may present a guilty plea. As always, this should only be done where there is sufficient time to obtain proper instructions, to consider whether the defendant is in fact guilty of the offence(s), and to obtain proper instructions on the allegations, any alleged prior record and any relevant circumstances in mitigation of penalty.
Such exceptional cases include:
The duty solicitor has discretion to conduct pleas of guilty, if time permits, for a defendant who is not in custody and where:
Some examples of offences which may arise in this situation are:
The duty solicitor will almost always be able to justify conducting a plea of guilty provided there is no other consideration stopping them from doing so because there is always potential for a miscarriage of justice if a defendant appears unrepresented [see considerations as discussed in this chapter]. Some reasons why a defendant is unable to adequately represent themself are:
Youth: many young defendants are afraid to tell their parents they have been charged with an offence.
Age: elderly people often suffer extreme embarrassment at appearing before the court and cannot communicate effectively.
Language difficulties: the Court will arrange for an interpreter, however the defendant may continue to require the assistance of the duty solicitor.
Physical or mental health problems: it is crucial that particular difficulties be explained to the Court both in mitigation of penalty and to guard against an inappropriate or excessive form of penalty being ordered.
Lack of discretionary income: for example women without their own source of income who are ashamed or afraid to tell their partners that they have been charged with an offence or to ask for money to pay for legal representation.
Any other reason: where it appears likely that the defendant would not be dealt with fairly unless the duty solicitor appears for them and speaks on their behalf.
The following are incidences where there are special ethical considerations to take into account before the duty solicitor can accept instructions to conduct a guilty plea.
It is not unethical for a duty solicitor to act on a guilty plea where the defendant has changed instructions from not guilty to guilty as long as:
|NEVER MISLEAD THE COURT|
|The duty solicitor must not mislead the Court by putting a version of the facts forward which they know, from the defendant’s instructions, to be false. Defendants who change instructions from not guilty to guilty may invent a more flattering scenario than the facts allow. The duty solicitor should politely but firmly decline to put those instructions to the Court.|
As a general rule it is preferable for a solicitor to act for one party, but this is not always possible in the duty solicitor situation. The duty solicitor should only act for co-charged defendants on a guilty plea where this will not cause a conflict of interest, and therefore:
See Australian Solicitors' Conduct Rules r 11
A defendant is entitled to be sentenced on the version of the facts most favourable to him or her [see Law v Deed  SASR 374 for this principle]. Moreover, the duty solicitor has the same duty as any defending counsel to put the instructions of the defendant to the Court. However, some instructions as to circumstances may be patently fanciful and self-serving while falling just short of denial. In this situation, the duty solicitor needs to politely and firmly explain they are not prepared to advance that version to the Magistrate. The defendant may then choose to appear unrepresented, or instruct the duty solicitor to act, but not to put those particular instructions to the Court. In the latter case, the duty solicitor should record the defendant’s instruction in writing and have the defendant sign it before acting.
Instructions to conduct a defendant’s plea of guilty should not be accepted where:
|NEGOTIATING WITH PROSECUTION|
Since R v Nemer (2003) 87 SASR 168;  SASC 375, prosecution are generally not amenable to negotiation at the bar table. However, time permitting, it is important for the duty solicitor to explore with prosecution whether there is room for negotiation in relation to the facts in the allegations, where the defendant does not agree with these facts. In doing so, it is important for you to take care not to disclose the defendant’s instructions, in case the matter does not resolve that day.
For example: there is an allegation of assault, which states that the defendant punched the victim five times. The defendant instructs he agrees he assaulted the victim, but that he punched the victim three times, not five times as alleged.
Do not say to the prosecutor: ‘He admits three punches but not all five’.
Often the only relevant fact is that more than one punch was delivered. Do say to the prosecutor: ‘If you allege that the victim was punched (or multiple punches, or several punches, then the matter will resolve today)'.
In this way, you are not tying the defendant to any admissions, but you may still successfully resolve the matter. In addition, you have not indicated that the defendant admits any assault at all. You have put a hypothetical proposition to the prosecutor. You should attempt to resolve such matters in this way whether the defendant is in custody or at liberty.
REMEMBER the starting place in criminal injuries compensation claims by victims is the apprehension report, so notes need to be taken of the agreed basis of the plea.
Before accepting instructions to act on a plea of guilty, the duty solicitor must ensure that:
|AIM TO ACHIEVE THE OPTIMUM RESULT|
Having accepted the defendant’s instructions, the aim for the duty solicitor is to achieve the optimum result by way of penalty for the defendant, such as without conviction, a minimal fine, the shortest reasonable period of licence disqualification, probation conditions that do not set the defendant up to fail, and to make sure the defendant is dealt with fairly and without humiliation.
To achieve this, the duty solicitor should try to:
There are three segments to your plea, usually presented in this order but not necessarily so:
REMEMBER the defendant’s plea of guilty is itself a sign of contrition warranting leniency in sentence.
The aim is to achieve the best outcome for the defendant and in the course of submissions the duty solicitor must not make the situation any worse for the defendant.
Signed instructions are an important safeguard for our professional legal reputation. Wherever possible, the duty solicitor must get signed instructions from the defendant when they appear as solicitor on a guilty plea to the effect that:
A list of the questions the duty solicitor might ask a defendant before acting on a guilty plea is set out in the Guitly Plea Instruction Checklist at the end of this chapter.
Once the duty solicitor has taken instructions to conduct a guilty plea, there are some further negotiations and advice to be taken before making submissions, to clarify with prosecution and with the defendant what is to happen:
The direct Police Prosecution numbers for the main metropolitan areas are:
Mount Gambier Police Prosecution can be contacted on – ph: (08) 8735 1040.
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.
|GUILTY PLEA INSTRUCTION CHECK LIST|
The duty solicitor should not work mechanically through this check list when taking instructions; it is a guide only. The focus should be on seeking out information that is relevant to the particular defendant’s case.
QUESTIONS ABOUT THE OFFENCE ITSELF
The instructions you take about the offence will be guided by the allegations. If you have not seen the allegations the instructions you take about what happened will need to be more detailed.
If you have to take initial instructions before having access to the allegations (such as when the defendant is one of the first custodies you see, and the prosecutor is not yet available at court), you must check the allegations before appearing, and if necessary return to the defendant to check inconsistencies in order to ensure that it really is appropriate, and that they continue to instruct that they want to plead guilty.
QUESTIONS ABOUT THE DEFENDANT’S CIRCUMSTANCES
You may find it helpful to work with these broad headings about the defendant’s circumstances:
You may find it useful to use the following detailed checklist:
NOTE: Use your judgement when indicating significant addiction or mental health problems in a guilty plea for a relatively minor offence which warrants no more than a small fine in itself. Alarmist details may persuade a Magistrate to impose a good behaviour bond which may unnecessarily fetter the defendant for months to come.
QUESTIONS RELEVANT TO PENALTY
The questions relevant to penalty are about :
NOTE: Be careful as to how you word submissions about the defendant being influenced by a stronger personality. The Court will not be impressed if it thinks the defendant is trying to lay all the blame for their offending on somebody else.