GUILTY PLEAS

The paramount consideration in determining and imposing sentence must always be to protect the safety of the community (the primary sentencing purpose) [Sentencing Act 2017 (SA) ss 3 and 9].

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:

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.

The Sentencing Act 2017 (SA) provides for a reduction of sentence by up to 40% for early guilty pleas in the Magistrates Court [s 39] and up to 35% (25% for serious indictable matters) in other courts [s 40].

A early discount guilty plea scheme was previously provided for in ss 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA), which was replaced by the Sentencing Act 2017 (SA) on 30 April 2018.

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

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 (including minor indictable matters tried and sentenced as summary offences) or in other circumstances (as prescribed by regulations).

Subject to that section, if a defendant has pleaded guilty to an offence:

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)].

Further, if the court is satisfied that the defendant was unable to obtain legal advice within the designated period [4 weeks after first court appearance, as outlined in s 39(2)(a)] due to:

the defendant pleads guilty within 14 days after the designated period, then the court may reduce the sentence as if the guilty plea was entered within the designated period [see s 39(3a)].

Reduction of sentence for guilty pleas in other matters - Higher courts

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:

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)].

A serious indictable offence is defined in s 40(8) of the Sentencing Act 2017(SA) as:

*A serious offence of violence, a serious sexual offence and serious harm are further defined in s 40(8).*

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 2018 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)].

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.

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.

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.

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:

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 [1985] SASC S4958 (Unreported, Cox J, 30 April 1985) for the full implications of the principles discussed above; Akpata v Police [2003] SASC 305and Markl v Police [2005]SASC 141for similar circumstances].

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.

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:

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 South Australian Legal Practitioners Conduct Rules r 11.

A defendant is entitled to be sentenced on the version of the facts most favourable to them [see Law v Deed [1970] SASC 527 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:

Before accepting instructions to act on a plea of guilty, the duty solicitor must ensure that:

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)].

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.