The following chapter highlights factors relevant to the sentencing process and matters a duty solicitor should consider while preparing a matter for sentencing. This chapter should be read in conjunction with the previous chapter on Guilty pleas.
Safety of the community as the primary purpose
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 collectively) [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 for a court when determining sentence [see s 9].
In addition to the primary sentencing purpose, the Sentencing Act 2017 (SA) outlines a number of secondary sentencing purposes. These include:
Whilst most sentencing principles and powers are found in the Sentencing Act 2017 (SA), there are many other Acts which empower the courts to impose penalties or orders upon persons found guilty of an offence. Other Acts manage issues consequential to sentencing. The following provides information about other legislative sources of powers relevant to sentencing:
In many State Acts, the penalties for offences are stated as divisional penalties and the actual maximum penalties per offence are not stated [see Acts Interpretation Act 1915 (SA) s 28A for divisional penalties and expiation fees; Magistrates Court Act 1991 (SA) - Appendix for divisional penalties and expiation fees].
The Criminal Procedure Act 1921 (SA) provides the mandatory procedure for the formal entering of a plea of guilty. A guilty plea should be entered in open court and the defendant extended an opportunity to show why he or she should not receive a conviction or any other order [see s 67]. An intimation of a plea does not comply with the formal requirements of a guilty plea. In accordance with the Sentencing Act 2017 (SA), a person who pleads guilty to an offence is taken to have been found guilty of the offence, unless the plea is later withdrawn or the defendant found incompetent to have entered the plea [see s 5(4)(b)].
A conviction is the determination of the guilt of the defendant and must be recorded by the court [see Criminal Procedure Act 1921 (SA) s 70].
The Sentencing Act 2017 (SA) defines a sentence as the imposition of a penalty and any order which affects the penalty. A sentence includes bonds and any orders in relation to non-parole periods, as well as the decision to discharge a defendant without imposing a penalty or without recording a conviction [see Sentencing Act 2017 (SA) s 5].
The following outlines the sections of the Sentencing Act 2017 (SA) which most often impinge on duty solicitor work in relation to the sentencing process.
See also the Law Handbook's detailed sections on The Sentencing Process.
In determining a sentence, the court must 'act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms' [see s 12(c)].
The sentencing court should sentence the defendant based upon the facts put forward by the defendant which are most favourable, so long as those facts are a reasonable possibility.
A defendant charged with an offence on information who is represented at court by counsel (and is not subject to bail conditions) is not required to be present at court for sentencing, as the defendant is appearing through his or her counsel.
A defendant who is to be sentenced for an indictable offence must attend court for all proceedings relevant to the determination and imposition of the sentence [see Sentencing Act 2017 (SA) s 21(1)]. However, the defendant may be absent for part or all of the proceedings with the court's consent, or may appear via audio visual link or audio link if they are in custody prior to sentence, and appropriate facilities exist for dealing with the proceedings that way [s 21(2)(b)].
In addition, the defendant may be excluded by the court in the interests of safety or the orderly conduct of proceedings, in which case arrangements should be made for the defendant to see and hear the proceedings through audio visual link [see s 21(2)(c)].
The validity of a sentence is not affected by a sentence being passed in the absence of the defendant [see s 21(5)].
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 defendant 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).
The Sentencing Act 2017 (SA) provides for a reduction by up to 40% for early guilty pleas in both the Magistrates Court [see Sentencing Act 2017 (SA) s 39] and for other matters [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.
A reduction in sentence is also available where a defendant has cooperated during the court proceedings.
Where a defendant pleads not guilty to an offence and is found guilty, but has otherwise complied with all statutory and court requirements during the proceedings and has conducted the case in a cooperative and prompt manner, the court may reduce the sentence by up to 10% [see Sentencing Act 2017 (SA) s 38(1)].
In reducing the sentence the court must consider the impact on any victim of the offence, as well as the benefit to the community of the defendant's conduct in relation to the proceedings [see s 38(2)].
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)].
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.
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)]. A defendant will be deemed to be a serious repeat offender by force of section 53 of the Sentencing Act 2017 (SA). This means that an order that a person is a serious repeat offender is not discretionary.
A defendant is deemed to be a serious repeat offender if they have been convicted of a category A serious offence (which includes home invasion, serious and organised crime, or serious firearms offences) on three separate occasions [see s 53(1)]. A defendant may also be deemed to be a serious repeat offender if they have committed, on three separate occasions, serious offences (which include certain drug offences, terrorism offences, aggravated robbery, and others - see section 52(1), or sexual offences involving children under the age of 14, in which case only two offences are required [see s 53(1)(c)].
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)].
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).
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.
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  SASC 55].
|LIMITED USE OF TRIFLING APPLICATIONS|
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|
|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  SASC 22
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:
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:
See Sentencing Act 2017 (SA) 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:
See Sentencing Act 2017 (SA) 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].
Special reasons for the purposes of section 71(2)(b)(ii) can only be where:
See Sentencing Act 2017 (SA) 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 [Sentencing Act 2017 (SA) 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 [Sentencing Act 2017 (SA) s 71 (2)(e)].
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|
|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  SASC 2548; Police v Saunders (2003) 229 LSJS 97;  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.
This is a sentence option under which a person found guilty of an offence promises to be of good behaviour for a stipulated period. The bond may or may not be subject to supervision, and is usually sanctioned by forfeiture of a stipulated sum of money.
In the Youth Court an order in these terms is referred to as an "obligation" [see Young Offenders Act 1993 (SA) s 26].
A bond can be imposed in circumstances where a sentence of imprisonment has been imposed, and the sentence is suspended on the condition the defendant enter into the bond [see Sentencing Act 2017 (SA) s 96].
A bond can also be ordered as a stand alone penalty, where the defendant is discharged (with or without recording a conviction, and with or without imposing any other penalty) on the condition they enter into the bond [see s 97].
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 are good reasons 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, they can be required to appear before the court for sentence, or conviction and sentence, where the bond expressly requires them to and where they have failed to comply with a condition of the bond [see ss 97(1)(c) and 97(3)(b)]. Therefore, a defendant cannot be called upon for sentence of the original offence, where that is not an express term of the bond [see s 97(3)(b)].
Conditions of a bond
Aside from a condition that the defendant be of good behaviour, the court may impose any other conditions in the bond [see s 96(1)(c); see s 98 for conditions of the bond].
The conditions which may be included in a good behaviour bond are:
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|
|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|
|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].
Section 120 of the Sentencing Act 2017 (SA) outlines the considerations a court must take into account before making an order for a defendant to pay a pecuniary sum. The definition of a pecuniary sum includes fines, compensation, costs and the victims of crime levy [see s 5 for definition of pecuniary sum]. For all court orders requiring the payment of a pecuniary sum (except the victims of crime levy which cannot be reduced or waived) the court must first be satisfied that the means of the defendant are such that they are able to comply with the order and it would not unduly prejudice the welfare of dependants [see Sentencing Act 2017 (SA) ss 120(1)(a) and 120(1)(b); Fry v Bassett (1986) 44 SASR 90]. The Court may order the payment of a lesser amount where the means of the defendant are inadequate or the payment would cause prejudice to any dependants [see Sentencing Act 2017 (SA) s 120(1); and Guilty Pleas chapter].
The Court must not order the payment of a fine if satisfied that the defendant is impecunious and such an order would unduly prejudice the welfare of his or her dependants [see Sentencing Act 2017 (SA) s 120(1); and commentary above]. When a court fines a defendant, the defendant is given twenty-eight days from and including the day on which the order was made, in which to pay the fine in full, or to make arrangements through the Fines Enforcement and Recovery Unit for payment by instalments [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 11].
|FINES ENFORCEMENT AND RECOVERY UNIT|
It is important for the duty solicitor to advise the defendant to contact the Fines Enforcement and Recovery Unit to make payment of a court fine, or to enter into a payment arrangement, as soon as possible after their court appearance. Remind the defendant that significant monetary penalties are imposed for late payments. The Fines Enforcement and Recovery Unit has the ability to make automatic direct debits from bank accounts, accept payment by credit card or EFTPOS, and can arrange for the deduction of instalment payments from Centrelink benefits. Since 2014, the Fines Enforcement and Recovery Unit has operated separately from the courts and is no longer co-located in the Magistrates Court.
A court should give priority to compensation over fines. A court may make an order requiring the defendant pay compensation for injury, loss or damage resulting from an offence or any other offence taken into account when determining sentence [see Sentencing Act 2017 (SA) s 124(1)]. An order for compensation may be made on application by the prosecution or on the court’s own initiative and can be made instead of, or in addition to, any other penalty [see s 124(2)]. The court must not order compensation if satisfied the defendant is impecunious and such an order would unduly prejudice the welfare of his or her dependants [see s 120 and commentary above].
Where property damage is caused as a result of an offence the court may make an order that the victim of the offence be compensated for their loss. Any damage to any property during the time the owner was dispossessed from it is treated as having resulted from the offence [see s 124(5)].If a court does not make an order for compensation where the circumstances suggest that such an order would be appropriate, it must give reasons for not doing so [see s 124(3)].
In addition to the provisions in the Sentencing Act 2017 (SA), other Acts empower a sentencing court to make compensation orders in particular circumstances [see for example Summary Offences Act 1953 (SA) s 6(3) for just compensation to a police officer against whom an offence of assault or hinder police was committed; Summary Offences Act 1953 (SA) s 45 for loss caused through illegal use of vehicles (not motor vehicles), horses and beasts; Summary Offences Act 1953 (SA) s 46 for loss caused through illegal use of a boat; Summary Offences Act 1953 (SA) s 47(2 ) for loss of pigeons].
Where pecuniary sums (including compensation, fines and other court costs) have been ordered by the court but are not paid or otherwise dealt with by the defendant, the Fines Enforcement and Recovery Unit has the ability to enforce the debt through various means - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7, Division 1.
|NEGOTIATE WITH PROSECUTION|
|It is sometimes possible to negotiate that a charge be dropped, for example if the charge is damage property and the defendant is pleading not guilty on the basis that the damage done was accidental, provided that compensation is paid. The duty solicitor should bear this in mind before pleading somebody guilty to such a charge, as it may be better to advise them to remand/adjourn the matter to attempt to negotiate such an outcome.|
All persons who are convicted of an offence must pay a victims of crime levy [see Victims of Crime Act 2001 (SA) s 32(2)(a)]; see also Victims of Crime (Fund and Levy) Regulations 2018 (SA)]. For completeness, all persons who receive an expiation notice also pay a victims of crime levy which is included on the expiation notice. The offence remains unexpiated and there is no immunity from prosecution until the levy is paid [see Victims of Crime Act 2001 (SA) ss 32(2)(b); 32(3) and 32(6)(a); Victims of Crime Act (SA) s 32(6)(b)]. A court cannot reduce or exonerate the defendant from liability to pay the levy [see s 32(7)(b)].
The Court may order the payment of fees in accordance with the regulations [see Criminal Procedure Act 1921(SA) s 191; Magistrates Court Act 1991 (SA) s 50]. The Magistrates Court has a structure of fees payable to the court in relation to criminal proceedings which is usually imposed on the defendant upon finalisation of the matter [see Magistrates Court (Fees) Regulations 2004 r 4(2) and sch 2 -Fees in Criminal Division]. The Court may remit a fee in whole or in part when good reason exists to do so [see Criminal Procedure Act 1921 (SA) s 191(2); Magistrates Court Act 1991 (SA) s 50(2)].
If a court fee is not paid, it becomes a pecuniary debt which is recoverable by the Fines Enforcement and Recovery Unit.
A court may award costs for or against a party to proceedings [see Criminal Procedure Act 1921 (SA) s 189(1)]. A cost order is a pecuniary sum, but not a sentence. The Court may consider a costs order where proceedings are delayed due to the neglect or incompetence of a legal practitioner or a prosecutor [see Criminal Procedure Act 1921(SA) ss 189(3) and 189(4)].
In accordance with the Magistrate Court Rules 1992 , a successful party to an action is entitled to costs [see r 51.01]. Where a matter is admitted by way of a plea of guilty, the prosecution is the successful party, and where a matter is subsequently withdrawn or dismissed, the defendant is the successful party [see Magistrate Court Rules 1992 r 51.02 and sch 1 for Magistrates Court Criminal Scale of Costs]. However, this does not mean that costs always follow the event.
Where persons are convicted of certain criminal offences, courts have the power to make forfeiture orders. These are orders for the forfeiture of goods used in connection with the offence or which the defendant may use to profit by the offence. A forfeiture order can also be made forfeiting the property of a prescribed drug offender. The following outlines some of these powers and the related legislation:
|If an application is made in accordance with section 168 of the Road Traffic Act 1961(SA) (and it does not happen often), the duty solicitor should ask for the matter to be held whilst they take instructions from the defendant as to the effects of a loss of licence.|
Where an offence for which the defendant was found guilty involves the misappropriation of property, the Court may order that property be restored to the person entitled to possession of the property [see Sentencing Act 2017 (SA) section 123(1); section 126 for enforcement of restitution orders].
Section 28 of the Sentencing Act 2017 (SA) empowers a court to make an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) or restraining order under the Criminal Procedure Act 1921 (SA) after finding a person guilty of an offence or upon sentencing [see Sentencing Act 2017 (SA) s 28(1)]. The section allows for the orders to be made against a defendant as if an application was made under these Acts against the defendant [see Intervention Orders (Prevention of Abuse) Act 2009 ss 6, 7, 12 and Criminal Procedure Act 1921(SA) s 99AA and 99AAC]. An order made under section 28 of the Sentencing Act 2017 (SA) has effect as an intervention or restraining order [see s 28(4)(b)]. An order under section 28 is not a sentence [see s 28(4)(b)].
The sentencing court must state to a defendant who is present in court for sentencing, the reasons for imposing the sentence and explain the legal effect and obligations of the sentence, and the consequences of non-compliance [see Sentencing Act 2017 (SA) s 19]. The reasons must be sufficient to enable an appeal court to review the matter. The validity of the sentence is not affected by non-compliance with the requirements of this section [see s 19(3)].
Generally, until a sentencing record is signed, the court is able to rectify any errors in the recording of the sentence. After this time the court that imposed the sentence may of its own initiative or on application by the DPP or the defendant rectify an error of a technical nature made by the sentencing court in imposing the sentence, or supply a deficiency or remove an ambiguity in the sentencing order [see Sentencing Act 2017 (SA) s 20].Both the defendant and the DPP are parties to proceedings in accordance with the section [see s 20(2)]. In addition, a court may correct an error in a conviction or order, and may set aside a conviction or order where the conviction or order was made in error [see Criminal Procedure Act 1921 s 76B; s 76A for other reasons to set aside a conviction or order].
|CERTIFICATE OF RECORD|
|After sentence, the duty solicitor can check the accuracy of the recording of the sentence by obtaining the Certificate of Record from Listings. Where you believe the recorded sentence may not be accurate, you can arrange to have the matter listed before the sentencing court to apply for the error to be rectified.|
In order for the person assisting law enforcement to receive a reduction in sentence the information provided must be provided in exceptional circumstances, directly relate to combating serious and organised criminal activity, and contribute significantly to the public interest [see s 37(1)].
Other elements that are considered before a reduction in sentence can be granted include the truthfulness, usefulness and reliability of the information along with various other considerations outlined in section 37(3) of the Sentencing Act 2017 (SA).
If a person receives a reduction of sentence under section 37 and then withdraws their cooperation with the law enforcement the DPP can apply for the person to be resentenced under section 42 of the Sentencing Act 2017 (SA) - set out below:
42—Re-sentencing for failure to cooperate in accordance with undertaking under section 37
(1) This section applies if—
(a) a person is currently serving a sentence of imprisonment for an offence or offences that was reduced by the sentencing court under section 37 (the relevant sentence); and
(b) the person has failed to cooperate with a law enforcement agency in accordance with the terms of an undertaking given by the person under that section.
(2) The DPP may, with the permission of the court that imposed the relevant sentence on the person, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's failure to cooperate with the law enforcement agency in accordance with the terms of an undertaking given by the person under section 37.
(3) The DPP, the chief officer of the law enforcement agency and the person are parties to the proceedings on the application.
(4) Nothing in this section authorises a court to impose a new sentence that would exceed the sentence that would, but for the reduction given under section 37, have been imposed by the sentencing court under that section.
A person can also apply to be re-sentenced where they:
See section 43 of the Sentencing Act 2017 (SA).
A person to whom this section applies can, with permission of the court that imposed the relevant sentence, apply to have the sentence quashed and a new, reduced sentence imposed, taking into account their cooperation with the law enforcement agency [see s 43]. In determining a new sentence on such an application, the court must consider the relevant factors as contained in section 43(5) of the Sentencing Act 2017 (SA).
Normally a duty solicitor would not deal with matters so serious that imprisonment and subsequent issues relating to parole would arise, however, this information is included for the sake of completeness.
The non-parole period is the minimum period which the prisoner must serve in prison or on home detention (for these purposes home detention is regarded as imprisonment; albeit at home). Once the non-parole period has expired, the prisoner may be released on parole, subject to their agreeing to be bound by conditions set by the Parole Board [see Correctional Services Act 1982 (SA) s 68(4)].
When the Court sentences a defendant to imprisonment for twelve months or more, known as the head sentence or the period on the top of a sentence it must consider fixing a non-parole period [see Sentencing Act 2017 (SA) ss 47(1)(a) and 47(5)(a)(i)]. The Court must specify the date the non-parole period is to commence (or be taken to have commenced) [see s 44(4)]. Where a court determines a sentence is to be backdated to the date the defendant was taken into custody, the non-parole period will be taken to have commenced on the same day [see s 44(5)]. The Court may decline to fix a non-parole period where it considers it would be inappropriate to do so due to the gravity of the offence, the criminal record of the defendant, behaviour during previous release on parole or conditional release, or for any other circumstance [see s 47(5)(e)].
The court may also decline to fix a non-parole period where the person is liable to serve a sentence in the community while subject to an intensive correction order [see s 47(5)(a)(ii)].
Where a sentence of imprisonment is imposed for an offence which occurred during the defendant’s release on parole, or while serving a period of imprisonment in accordance with an order of the Parole Board (for breach of parole conditions), the sentence imposed for the offence will be cumulative upon the sentence for which the defendant was on parole [see Sentencing Act 2017 (SA) s 45].Where a defendant is already subject to an existing non-parole period, the Court may review and extend the existing non-parole period [see s 47(1)(b)]. Where a person is currently serving a period of imprisonment, the Court must take into account time already served, in fixing or extending a non-parole period [see s 47(9)(a), s 47(9)(b) for applications by DPP, Parole Board or Training Centre Review Board].
The Presiding Member of the Parole Board, or a prisoner who is serving a sentence of imprisonment which does not have a fixed non-parole period, may apply to the court to fix a non-parole period [see Sentencing Act 2017 (SA) s 47(3)]. Having a previous like application declined does not preclude the prisoner from making any further applications to fix a non-parole period [see s 47(4)].
If the prisoner has a head sentence of less than five years, they have an automatic right to have conditions set for their release on parole within 30 days of the expiry of the non-parole period [see Correctional Services Act 1982 (SA) s 66(1); s 66(2) for exceptions]. If the head sentence is five years or longer, the prisoner must apply to the Parole Board for release on parole [see s 67; s 67(3a) for safety of the community as a paramount consideration; s 67(4) for matters to be taken into consideration when determining the application]. The Parole Board may insist the prisoner complete further courses, training or counselling before consideration of their release.
Parole conditions may be similar to conditions imposed on good behaviour bonds but they may also range more widely. For example, it is common to require offenders who have committed sex offences on young persons not to associate with persons under a certain age [see Correctional Services Act 1982 (SA) s 68(1a)].
All prisoners are released on parole on condition that they do not commit any offence or possess any firearm, part of any firearm or ammunition or any offensive weapon, and they must be under the supervision of a community corrections officer and obey all reasonable directions of that officer until the expiration of the period of parole, including that they submit to gunshot residue testing as reasonably required [ss 68(1)(a) and 68(1)(aa)]. They may also be required to meet further conditions that they reside at a specific premises and undertake specific activities or programs for up to one year following release, and that they be electronically monitored [s 68(1)(b)].
When fixing or recommending other conditions of parole, the Parole Board must take into account the safety of the community and all other relevant materials [see Correctional Services Act 1982 (SA) s 68(2) for matters to be taken into consideration].
Previously the Parole Board designated condition(s), which if breached, resulted in automatic cancellation of parole and an immediate return to prison. Since the commencement of the relevant sections of the Correctional Services (Miscellaneous) Amendment Act 2012 (SA), the Parole Board no longer designates conditions.
Only a breach of the condition not to possess a firearm, part of any firearm or ammunition or to submit to gunshot residue testing as reasonably required ( designated by s 68(2a) of the Correctional Services Act 1982 (SA)) or the condition not to commit an offence continues to result in the automatic cancellation of parole (in the latter case, upon imprisonment for the offence) [s 75]. See also Sentences for offences committed whilst on parole.
The Parole Board has the discretion, after obtaining a report from the Chief Executive, to cancel parole as a result of the breach of any other parole condition and direct that the person serve the unexpired balance of parole as at the date of their breach [s 74(1)]. The liability to serve the balance of the term of imprisonment applies even if when finding the breach proved, the parole has already expired or been discharged [see s 74(1a)].
Alternatively, the Parole Board may order the person serve a specified number of hours of community service, being not less than 40 or more than 200 hours [see ss 74AA(1) and 74AA(4)].
If a person becomes a terror suspect (as defined in section 4(4) of the Correctional Services Act 1982 (SA)) while on parole, a warrant for their arrest must be issued and a determination must be made by the Parole Board as to whether the person will continue on parole, or whether their parole will be cancelled and they will be liable to serve the balance of their sentence in prison [Correctional Services Act 1982 (SA) s 74B]. The decision of the Board must take into consideration any relevant submissions from a terrorism intelligence authority [s 77AA].
If the Chief Executive of the Department or a police officer reasonably believe that a parolee has breached a condition of parole, they may apply to the Parole Board or a magistrate for the issue of a warrant for the apprehension and detention of the parolee [s 76A(1)]. The Chief Executive or police officer must then provide a written report to the Parole Board within two days [s 76A(4)].
If a police officer reasonably believes that a parolee has breached a condition of parole, they may arrest the parolee without a warrant (with the approval of a police officer above the rank of Inspector) if satisfied that the breach is not trivial and is continuing [s 76B(1)]. The police officer must then notify the Parole Board of the arrest within 12 hours of the arrest [s 76B(2)].
When a parolee is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended or its suspension is revoked, the parolee is also liable to serve in prison the balance of the sentence of imprisonment for which they were on parole [see Correctional Services Act 1982 (SA) s 75(1) and s 75(1aa)]. The unexpired balance of parole to be served is the balance on the day on which the offence was committed [s 75(1); see also s 75 (1aa)]. This liability to serve the balance of the term of imprisonment applies even when at the time of finding the breach proved, the parole has expired or been discharged [see s 75(1a); see also s 75(1aa)]. The sentence for the offence which was committed whilst on parole must be cumulative upon the sentence for which the defendant was on parole. This means it cannot be backdated and the unexpired balance of parole takes effect before the sentence for further offending [see Sentencing Act 2017 (SA) s 45(2); R v Bartels (1986) 44 SASR 260; see also the setting of non-parole periods (above)].
|OBTAINING INFORMATION ABOUT PAROLE|
|Information about the unexpired balance of parole at the time of a particular offence can be obtained from the Parole Board.|
OBTAINING INFORMATION ABOUT TIME IN CUSTODY
Information about time spent in custody and on home detention can be obtained from the Department for Correctional Services.
The Chief Executive of the Department for Correctional Services has an absolute discretion to release prisoners from prison to serve a period of home detention [see Correctional Services Act 1982 (SA) s 37A(1)]. Prisoners generally are eligible for release on home detention after serving one half of their non-parole period [see s 37A(2)(a); s 37A(2) for limitations on the discretion]. Release on home detention cannot occur earlier that one year before the end of the non-parole period [see s 37A(c)(i)]. Prisoners sentenced in respect of certain offences, such as those involving violence, are not eligible for release on home detention [see s 37A(2)(d)].
All prisoners released from prison on home detention are subject to a number of conditions including to be of good behaviour, that they stay at their place of residence at all times except for specific purposes approved by their assigned authorised officer, that they are prohibited from possessing a firearm, any part of a firearm or ammunition and that they must obey the lawful directions of the assigned authorised officer, including that they submit to gunshot residue testing [see Correctional Services Act 1982 s 37A(3) for home detention conditions]. A breach of a home detention condition due to the person unlawfully leaving the residence means they are unlawfully at large [see s 37C(6)]. Any breach of these conditions may result in the home detention being revoked and subsequent arrest by the police [see s 37C]. A breach of a condition or further offending during the period of home detention may result in the prisoner being liable to serve the balance of the non-parole period or the term of imprisonment as at the date of the breach or offence [see s 37C(4)].
|ADVISING ON BREACHES OF REGULATIONS|
|It is important the duty solicitor is able to advise prisoners about the penalties and procedures for breaches of prison regulations and the crucial time limits involved (see below).|
Where the Chief Executive of the prison is satisfied a prisoner has committed a minor breach of a prison regulation, the Chief Executive may give the prisoner notice in writing [see Correctional Services Regulations 2001 (SA) regs 19 and 20 for minor breaches]. This provides the prisoner with an opportunity to elect to be charged with and receive a formal hearing for the breach, and outlines the punishment they will receive should the prisoner not elect to be charged with the offence [see Correctional Services Act 1982 (SA) s 42A(1)].
Unless the prisoner elects in writing to be charged and have a hearing within 24 hours of receiving the notice from the Chief Executive, the prisoner will be penalised without a hearing [s 42A(2)]. The penalties may include loss of amenities or privileges, or exclusion from work for a period not exceeding ten days [ss 42A(2)(d) and (e)].
Inquiry by the Chief Executive
Those prisoners who do elect to have a hearing, and who have been charged within 8 weeks of the date of the alleged breach, are subject to an inquiry conducted by the Chief Executive [s 43(1); reg 23]. Where it is determined beyond reasonable doubt that the allegation is proved, the Chief Executive may then impose penalties such as forfeiture of a sum of money, loss of amenities or privileges (not exceeding 35 days) or exclusion from work (not exceeding 21 days) [s 43(2)]. Where it is determined the allegation has not been proved the Chief Executive must dismiss the charge [s 43(3)].
Hearing before Visiting Tribunal
The Chief Executive may refer the matter to a Visiting Tribunal for hearing and determination [s 44(1); reg 24]. Where it is determined beyond reasonable doubt that the allegation is proved, the Visiting Tribunal may impose penalties such as forfeiture of a sum of money, loss of amenities or privileges (not exceeding two months), or exclusion from work (not exceeding 28 days) [s 44(2)]. Where it is determined the allegation has not been proved, the Visiting Tribunal must dismiss the charge [s 44(5)].
From Chief Executive
The prisoner may appeal to a Visiting Tribunal against any penalty imposed by the Chief Executive [see Correctional Services Act 1982 (SA) s 46]. To do so, the prisoner must serve on the Chief Executive a notice in writing stating their intention to appeal and the grounds of the appeal within 7 daysof receiving a copy of the record of the penalty imposed and the reasons for the penalty [see Correctional Services Regulations 2001 (SA) reg 26(2)]. The Chief Executive must then arrange for a Visiting Tribunal to hear the appeal and notify the prisoner of the date fixed for the hearing at least 7 days beforehand [regs 26(3) and (4)].
From Visiting Tribunal
Decisions made by a Visiting Tribunal may be appealed only on the ground the proceedings were not conducted in accordance with the Act [s 47(1); s 45 for procedure for inquiries made by Chief Executive or Visiting Tribunal]. The appeal is made to the District Court if the Visiting Tribunal was constituted of a Magistrate and to the Magistrates Court in any other case [s 47(1a)]. The prisoner must serve on the Chief Executive a notice in writing that indicates the proceedings that are the subject of the appeal and the reasons why the prisoner considers the proceedings were not conducted in accordance with the Act within 14 daysof receiving a copy of the record of the penalty imposed and the reasons for the penalty [reg 27(2)]. The Chief Executive must then lodge the notice at the relevant court within 14 days of receiving it [reg 27(3)].
There is no remission of sentence for good behaviour. While previously prisoners could earn good behaviour remission of up to one-third of their sentence, this is possible no longer as all remission was abolished by the Statutes Amendment (Truth in Sentencing) Act 1994 (SA).
The Commonwealth Director of Public Prosecutions prosecutes a wide range of offences on behalf of the Commonwealth. Commonwealth sentencing is different from State sentencing and can be complex, especially when combined with State sentences. It is unlikely that a duty solicitor will appear on a Commonwealth matter, other than to conduct a bail application. However, for completeness, a basic discussion of some Commonwealth offences in relation to sentencing procedures follows [see also Courts and Jurisdiction chapter].
|CONTACT THE PROSECUTOR|
|Commonwealth matters can be problematic, and sometimes cannot be dealt with quickly due to their complex nature. Contacting the Commonwealth prosecutor is a good starting place. However, it is better for duty solicitors to avoid Commonwealth pleas unless the offence is minor or is a clear case for a fine or community service.|
The Commonwealth deals with many social security offences and if such offending is encountered it is extremely important to note that:
Some examples of social security offences with maximum penalties of twelve months imprisonment or more are:
The following factors have been considered to be relevant to social security fraud:
The relevant considerations a court must take into account when sentencing in relation to Commonwealth matters depend to a large extent on the nature of the offence, and are not unlike sentencing considerations for State matters. The factors relevant to sentencing in such matters include:
|RESEARCH THE ISSUES|
|As already indicated, Commonwealth sentencing can be complex, and a perusal of the Crimes Act 1914 (Cth) is a good starting point, as it deals with general sentencing law. Reference should then be made to the particular Act under which the charge has been laid.|
The four sentencing options available under the Crimes Act 1914 (Cth) are set out below.
Where a court finds a charge is proved, and considers it not appropriate to inflict a punishment (or it is only appropriate to inflict a nominal punishment) the court may dismiss the charge or discharge the person without conviction on condition they enter into a good behaviour bond and pay restitution, reparation, compensation or prosecution costs [see Crimes Act 1914 (Cth) s 19B(1)]. The power to make an order in accordance with s 19B can only be used where certain criteria are met. The court must have regard to the character, antecedents, age, health or mental condition of the person, and the extent the offence is of a trivial nature or committed under extenuating circumstances [see s 19B(1)(b)]. A fine cannot be imposed when a s 19B order is made, nor can a community service order be made in relation to a s 19B order. To summarise, s 19B empowers a court to:
A sentencing court may convict a person of an offence, and without imposing a further penalty allow that person to enter into a recognisance release order (good behaviour bond) for a period not exceeding five years [see Crimes Act 1914 (Cth) s 20(1)(a)(i)]. This may include an order for compensation, reparation, restitution or prosecution costs [see s 20(1)(a)(ii)]. This may also include an order for a pecuniary penalty (a fine) or an order for supervision for a maximum of two years [see ss 20(1)(a)(iii) and 20(1)(a)(iv)].
The sentencing court may order community service as a penalty after imposing a conviction [see Crimes Act 1914 (Cth) s 20AB]. There must be a conviction recorded before a CSO can be made. Under this provision a straight CSO can be imposed independent of any other penalty such as a s 20(1)(a) (see above) or s 20(1)(b) bond (see below).
The sentencing court may sentence the person to a period of imprisonment but direct the person be released forthwith after entering into a good behaviour bond and agreeing to comply with any orders such as payment of compensation, reparation, restitution or prosecution costs (this is the equivalent of suspending a sentence under state law) [see Crimes Act 1914 (Cth) s 20(1)(b)].
Alternatively, the court may sentence the person to a period of imprisonment and order that person be released after serving a specified period of the sentence in prison [see Crimes Act 1914 (Cth) ss 20(1)(b) and 19AF(1)]. The court must specify the pre-release period of the sentence (the equivalent of a State non-parole period), which must be actually served by the prisoner before the prisoner enters into a recognisance (the equivalent of a good behaviour bond) [see s 19AF(1)]. To summarise, section 20(1)(b) empowers a court to:
The consequences of breaches of Commonwealth recognisance release orders (bonds) can be serious depending on the original sentence imposed [see Crimes Act 1914 (Cth) s 20A]. Court powers in relation to breaches of Commonwealth recognisance release orders range from taking no action, to revoking the order, re-sentencing for the offence and may include the imposition of pecuniary penalties [see s 20A].
Where the defendant is already serving or is subject to another sentence (whether through State or Commonwealth related offences), the subsequent Commonwealth sentence can be cumulative, concurrent or partly both [see Crimes Act 1914 (Cth) s 19(1)(a)]. Where a non-parole period applies with respect to the current sentence, the Commonwealth sentence commences immediately after the end of the current non-parole period [see s 19(1)(b)]. State non-parole periods must be kept entirely separate from Commonwealth pre-release periods [see s 19AJ].
Where the defendant is to be sentenced to imprisonment for Commonwealth and State offences, the Commonwealth sentence can be cumulative, concurrent or partly both [see Crimes Act 1914 (Cth) s 19(3)(c)].
Where a defendant is to be sentenced to imprisonment for both State and Commonwealth offences, a single non parole period cannot be set encompassing both offences. Where a non-parole period applies with respect to the State offence, the Commonwealth sentence commences immediately after the end of that non-parole period, however some concurrency is allowable [see Crimes Act 1914 (Cth) s 19(3)(d); R v Richardson  SASC 88].
The court can impose one global penalty for two or more offences against the same provision of a law of the Commonwealth [see Crimes Act 1914 (Cth) s 4K].
The duty solicitor may encounter an unrepresented defendant who has been convicted, imprisoned and who needs assistance to appeal the sentence. This topic is covered in detail in the Bail chapter. Whilst it is unlikely a duty solicitor will become involved in an appeal process beyond assisting an unrepresented defendant, the following information has been included for completeness.
Appeals from the Criminal Division of the Magistrates Court lie:
A Notice of Appeal must be filed in the Supreme Court Registry within twenty-one days of the date of the conviction and/or sentence [see Chapter 12A (r 104G) and Chapter 13 (r 107) of the Supreme Court Criminal Rules 2014]. The Notice of Appeal must identify the judgment against which the appeal is made and set out the grounds of the appeal [see r 104H and r 108 of Supreme Court Criminal Rules 2014].
The Notice of Appeal must be in an approved form [see rr 104H(1) and 108(3) of Supreme Court Criminal Rules 2014]
For a single Judge appellate proceeding, the appellant must join as a respondent in the appeal any other party to the first instance proceeding unless that party has no interest in the appeal. The appellant must serve the notice of appeal on the other parties to the appeal as soon as practicable. The appellant must further serve a copy of the notice of appeal on the Registrar or other proper officer of the court of first instance as soon as practicable. The South Australian Police, whether as appellant or respondent, is to be referred to as “Police” and not as “South Australian Police” or “SA Police.”
For a Full Court appellate proceeding, within 5 business days after filing a notice of appeal, the appellant is to serve notification of the appeal in an approved form, attaching a copy of the notice of appeal and any document filed with the notice of appeal on:
When the appeal is instituted by the defendant, the Registrar will serve the documents [r 110(2)]
On hearing the appeal, the appellate court may:
|The duty solicitor must brief an experienced practitioner should they become aware of a matter that may require an appeal. It is important for the duty solicitor to remember that the Notice of Appeal must be filed within twenty-one days. However, leave to appeal out of time may be considered by the Supreme Court. Before an appeal is commenced for a client with legal aid, the sentencing remarks are usually reviewed by a senior legal practitioner who will advise on the merits and grounds of appeal. The sentencing remarks are requested from the Magistrates Court Registry along with a fee remission certificate (**They may also be available from the Commission's Library, so duty solicitors should check there first).|
Where the duty solicitor was involved in making the sentencing submissions, they will be required to draft an affidavit as to the submissions they made to the Court. It is important that the duty solicitor write comprehensive notes as soon as possible while submissions remain fresh in their mind.