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 Legislation Interpretation Act 2021 (SA) s 54 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a person who pleads guilty to an offence is taken to have been found guilty of the offence, unless the plea is later withdrawn or the defendant found incompetent to have entered the plea [see s 5(4)(b)].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].

A court is not bound by the rules of evidence and may inform itself about matters relevant to the determination of sentence as it thinks fit [see Sentencing Act 2017 (SA) ss 12(a) and 12(b)].

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 respondent 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).

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

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

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)].

Where a guilty plea is entered and the Magistrate is considering a sentence of imprisonment, the Magistrate may order a pre-sentence report for information about:

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.

On 14 November 2020, sections 52, 53 and 55 of the Sentencing Act 2017 (SA) were amended by the commencement of the Sentencing (Serious Repeat Offenders) Amendment Act 2020. The amended provisions apply in relation to a sentence imposed on or after 14 November 2020, regardless of whether the offence was committed prior to this date.

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)].

However, a sentencing court may declare that the serious repeat offender sentencing provisions above will not apply, if a defendant satisfies the court (by evidence given on oath):

Evidence given under oath could include psychological or medical reports in affidavit form (with the report writer being the deponent of the affidavit).

[s 54(2)].

A defendant is deemed to be a serious repeat offender if they have been convicted at least three serious offences on separate occasions, and have been sentenced on each occasion to a term of imprisonment (excluding wholly suspended sentences, or a community based custodial sentence only) [see s 53(1)(a)]. A serious offence includes a serious firearms offence under Division 3 of the Act, and prescribed offences (for example- breaches of intervention orders involving violence or threat of violence, commercial drug offences, serious and organised crime, arson, serious criminal trespass-residential, and offences against the person) where the maximum penalty prescribed for the office is at least 5 years imprisonment.

A defendant may also be deemed to be a serious repeat offender if they have committed, at least two serious offences sexual offences on separate occasions [see s 53(1)(b)]. Serious sexual offences includes certain offences under Division 11 of the Criminal Law Consolidation Act 1935 (SA) where the victim was aged under 14 years the time of the offence, and sexual exploitation of person with a cognitive impairment.

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)].

Applications are governed by Chapter 2 Part 5 of the Uniform Special Statutory Rules 2022 (SA).

If a court is sentencing an offender in relation to a child sexual offence, then it must have regard to the sentencing practices, principles and guidelines applicable at the time of sentencing (not at the time of the offence) [Sentencing Act 2017 (SA) s 68].

For the purposes of section 68 of the Sentencing Act 2017 (SA), a child sexual offence means a sexual offence committed in relation to a person under the age of 18 years; and a sexual offence has the same meaning as section 28 of the Sentencing Act 2017 (SA).

Where a defendant is found guilty of a number of offences for which they were charged on one or a number of Informations, section 26 of the Sentencing Act 2017 (SA) empowers the Court to impose one penalty for all or some of the offences. However this does not apply to some prescribed designated offences, which include:

[See Sentencing Act 2017 (SA) ss 26(2) and 26(3).

If any of the offences in respect of which one sentence is being imposed involved different victims or were committed on different occasions, the Court must indicate the sentence that would have been imposed in respect of each such offence had the one penalty not been applied [s 26(2a)].

One penalty cannot be applied to offences with different types of penalties, such as where some offences have fines only penalties and other offences imprisonment only penalties. Nor can the sentence exceed the total of the maximum penalties that could be imposed in respect of the offences to which the sentence relates. A court may consider imposing one penalty where the offences occurred as part of a single course of conduct. For example, a person who is arrested by the police for disorderly behaviour, who then assaults one police officer and resists arrest by another police officer, may receive one penalty when sentenced for all three charges.

Where the Court imposes separate sentences for each offence the Court can order that the sentences be served concurrently, or may increase the time the person will spend in prison by directing that the sentences be served cumulatively. For example, see:

A concurrent sentence is a sentence which is ordered to run at the same time as another sentence.

A cumulative sentence is a sentence which is ordered to begin at the end of another sentence.

In circumstances where the Court considers good reason exists for doing so, section 25(1) of the Sentencing Act 2017 (SA) provides that the Court may reduce the minimum penalty prescribed for an offence. In doing so, the Court must take into consideration the character, antecedents, age or physical or mental condition of the defendant, or the fact the offence was trifling, or any other extenuating circumstances. This section does not allow the Court to impose less than the mandatory minimum disqualification of licence, for example, in drink driving matters.

In circumstances where a sentencing court determines good reason exists for doing so, sections 25(2) and 25(3) of the Sentencing Act 2017 (SA) provides that the Court may impose substitute penalties to those penalties prescribed as follows:

Duty solicitors will often find themselves conducting guilty pleas on the basis of the Sentencing Act 2017 (SA) section 23 (trifling applications) and section 24 (penalty without conviction). The following provides information about these sections and provides suggestions for the making of such submissions in mitigation of penalty [see also Guilty Pleas chapter].

Sometimes a defendant pleads guilty or is found guilty of an offence which is so trifling the court considers it inappropriate to impose any penalty. The court may then consider dismissing the charge without recording a conviction for the offence or record a conviction and discharge the defendant without penalty [see Sentencing Act 2017 (SA) s 23(2); and Guilty Pleas chapter for more information]. For an offence to be considered trifling, it must be so far out of the ordinary or typical case of its type that Parliament cannot have contemplated it as falling within the statutory prohibition so as to invoke the full rigour of the law [see Coles Myer Limited v Catt (1992) 58 SASR 298; at 308-9 for an example of the reasoning]. Evidence on oath is required before a court can determine whether an offence is trifling [see Dean v Police [2008] SASC 55].

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:

The Commission generally instructs its duty solicitors that they should not conduct guilty pleas where there is a real likelihood that the sentence imposed will be one of imprisonment, whether immediate or suspended [see Guilty Pleas chapter]. Imprisonment is discussed below for the sake of completeness.

Section 10(2) of the Sentencing Act 2017 (SA) prohibits a penalty of imprisonment being imposed unless the court decides that:

The Act is clear that the primary sentencing purpose – to protect the safety of the community – must be the paramount consideration when a court is determining and imposing sentence [see ss 3 and 9].

In determining a sentence, a court is also required to apply the common law concepts of proportionality, parity and totality, and must follow the principle that a defendant may not be sentenced on the basis of having committed an offence for which they were not convicted of [see s 10(1)].

Imprisonment is a strong possibility in the following cases:

Since September 2016 courts in South Australia have been able to, in some circumstances, impose home detention orders [see Part 3, Division 7, Subdivision 1 of the Sentencing Act 2017 (SA)].

This is available for sentences ordered after 1 September 2016, even if the offence happened before that date. The only exception to this is where a sentence which has been already imposed, has been quashed and the defendant re-sentenced [s 7 Statutes Amendment (Home Detention) Act 2016 (SA)].

The court can order that the defendant serve a sentence on home detention if [s 71(1)]:

A home detention order cannot be made where:

Pursuant to section 70(1)(b)(ii), a home detention order cannot therefore be made where a person who is a serious firearms offender is being sentenced for a serious firearms offence [see ss 25 and 51(1)(c)].

The paramount consideration of the court when determining whether to make a home detention order is to protect the safety of the community [s 69 (2)]. The court also has to take into consideration the impact that the home detention order may have on [s 71(3)]:

There are a number of circumstances where a home detention order must not be made, including:

For definitions of serious sexual offence, prescribed serious sexual offence,serious and organised crime offence and designated offence, see Sentencing Act 2017 (SA) s 71(5); or see Suspended Sentences.

The prescribed circumstances referred to in section 71(2)(b)(ii) relate to the age of the defendant and where the circumstances of the offending, including the victim’s age and the age difference between the defendant and the victim, are such that it is appropriate that a home detention order be made [see s 71(5) – definition of prescribed circumstances]. For the purpose of determining the age difference between the defendant and victim where the victim was a fictitious person represented to be a real person, consideration must be given to the age the defendant believed the victim to be [s 71(6a)].

Special reasons for the purposes of section 71(2)(b)(ii) can only be where [s 71(4)]:

A home detention order must not be made unless the court is satisfied that the home listed in the order is suitable and available for the detention and that the defendant will be looked after there [s 71(2)(c)].

A home detention order must also not be made if the defendant would serve the home detention:

Finally, a home detention order must not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer [s 71(2)(e)].

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.

Another important sentencing option is the good behaviour bond, under which a person found guilty of an offence promises to be of good behaviour for a specified period. The bond may require supervision [Sentencing Act 2017 (SA) s 98(1)(a)], and may require the payment of a specified sum of money [s 100].

In the Youth Court, an order in these terms is referred to as an obligation [see Young Offenders Act 1993 (SA) s 26].

A good behaviour bond can be ordered:

The term of the good behaviour bond will be specified in the bond, and there is no upper limit on the term [see s 99].

In order to impose a bond (either as part of a suspended sentence or as a stand alone penalty) the court must first establish that there is good reason for doing so [see ss 96(1) and 97(1)].

Where a defendant has been discharged on the condition that they enter into a bond, the bond may require them to appear before the court for sentence, or conviction and sentence, if they have failed to comply with a condition of the bond [see ss 97(1)(c) and 97(3)(b)]. A defendant cannot be called upon for sentence for the original offence if that is not an express term of the bond [see s 97(3)(b)].

Conditions of a bond

In addition to a condition that the defendant be of good behaviour, the court may impose any other conditions in the bond that it thinks fit [see s 98 for a list of conditions that may be imposed].

Such conditions may require:

*If a bond requires the payment of compensation to a person for injury, loss or damage resulting from the offence, compensation must be paid before the bond expires. The court may not otherwise specify the time or manner in which the sum of compensation is to be paid [see Sentencing Act 2017 (SA) s 122]. The payment of compensation ordered under the Sentencing Act 2017 (SA) is managed by the Fines Enforcement and Recovery Unit and payment arrangements may be organised through that Unit.

A 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].

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].

Interstate unpaid court fines

The Service and Execution of Process Act 1992 (Cth) governs procedure in relation to the registration and enforcement of interstate fines as if they were fines incurred in the registering state, and abolishes remands in custody and penalties of imprisonment.

The 2011 amendments introduced a mechanism for the registration of unpaid interstate fines in another state when the person is believed to be a resident of that state [see Service and Execution of Process Act 1992 (Cth) ss 112 and 113; s 110 for definitions]. Registration of an interstate unpaid fine allows that fine to be enforced in the registering state ‘as if the fine had been imposed on the offender by a court of the registering State ’ and the fine can no longer be enforced in the originating state [see s 114; s 115 for payment received by originating state; s 116; s 118 for cancellation of registration; s 119 for effect of cancellation of registration]. Any challenges to the imposition of a registered fine must be made in accordance with the laws of the originating state and the offender must notify the registering state of this process [see s 120 for challenge to the imposition of a fine].

Of particular note:

A registered fine cannot be enforced by the imposition of a sentence of imprisonment on the offender despite the enforcement laws of the registering State [see Service and Execution of Process Act 1992 (Cth) s 114(4)].

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.

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) Notice 2021 (SA)- 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 [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 [ss 189(3) and 189(4)].

In accordance with the Joint Criminal Rules 2022 (SA), a successful party to an action is entitled to costs [r 159.1 - exercise of costs discretion]. 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 [r 159.1(3) ordinarily costs will be ordered in favour of a successful party against an unsuccessful party; r 159.3 Lower Courts costs scale and Schedule 1 for Lower Courts 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:

Summary Offences Act 1953 (SA)

Controlled Substances Act 1984 (SA)

Criminal Assets Confiscation Act 2005 (SA)

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].

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].

The Sentencing Act 2017 (SA) provides for possible sentencing reductions where a defendant has cooperated or undertaken to cooperate with a law enforcement agency [see Sentencing Act 2017 (SA) s 37].

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).

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)]. However, if in the opinion of the Chief Executive ('CE'), a prisoner is unreasonably refusing to accept the conditions to which the prisoner’s parole will be subject, or is unable to accept them due to a physical or cognitive impairment, the CE may accept the conditions on behalf of the prisoner and the prisoner will be taken to have accepted the conditions from the date of acceptance by the CE [s 68(4a)].

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 on the date of the expiry of the non-parole period. However, if, because of the commencement of a prisoner’s non-parole period has been backdated, the non-parole period expires prior to the date on which it is fixed, the Board must order that the prisoner be released from prison or home detention on parole not later than 30 days after the day on which the non-parole period is fixed [see Correctional Services Act 1982 (SA) s 66(1); s 66(1a); s 66(2) for exceptions].

Some prisoners serving sentences of less than five years still have to apply to the Parole Board for release on parole, such as those serving a part of their imprisonment in relation to:

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)]. The Board must consider imposing a condition that the prisoner perform community service upon their release on parole, if satisfied that the prisoner will not be undertaking remunerative or voluntary work or a course of education, training or instruction [s 68(1ab)].

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].

Only a breach of the condition not to commit an offence continues to result in the automatic cancellation of parole (upon imprisonment for the offence) [s 75]. See also Sentences for offences committed whilst on parole. For a prisoner released on parole who is serving a sentence of life imprisonment, this can be for a breach of any parole condition [s 74(1)(a)].

The Parole Board has the discretion, after obtaining a report from the Chief Executive, to cancel parole as a result of breaching a condition of parole that is constituted by the commission of an offence, or in the opinion of the Board a serious 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)(b)]. For a prisoner released on parole who is serving a sentence of life imprisonment, this can be for a breach of any parole condition [s 74(1)(a)].

The Board may suspend release on parole or take other action for certain breaches of parole conditions as outlined in section 74AAA. This does not apply to prisoners serving a sentence of life imprisonment, or for serious breaches of parole conditions under s 74(1)(b).

The Board may direct:

This may include a condition that the person reside at a specific premises (including premises declared under the Act to be a probation and parole hostel) and to undertake at specific places such activities and programs as determined by the Board. The Board cannot make an order under section 74AAA in relation to a person who is under the supervision of a community corrections officer unless it has obtained and considered a report from the CE.

As an alternative to exercising powers under sections 74 and 74AAA, 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].

When the Parole Board suspects a person has breached a parole condition, the Board may either:

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)].

Applications pursuant to section 76 or 76A of the Corrections Services Act 1982 (SA) are governed by Chapter 7 Part 5 of the Uniform Special Statutory Rules 2022 (SA).

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)].

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)].

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)].

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:

Commonwealth child sex offences

In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

[see Crimes Act 1914 (Cth) s 16A(2AAA)]

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:

Commonwealth child sex offences

Sections 20(1)(b)(ii)-(iii) of the Crimes Act 1914 (Cth) outline further legislative requirements that must be satisfied, where at least one of the offences is a Commonwealth child sex offence.

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 [2010] SASC 88].

An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment, that is, or has been, imposed on the person for another Commonwealth child sex offence, or a State or Territory registrable child sex offence [see Crimes Act 1914 (Cth) s 19(5)].

This will not apply however if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances [s 19(6)]. The court must state and record its reasons for imposing the sentence in such a manner [s 19(7)].

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].

In many circumstances reparation orders are sought in relation to Commonwealth offences. These operate as final judgments enforceable in the civil jurisdiction and therefore no time to pay is required [see Crimes Act 1914 (Cth) s 21B].