The Sentencing Act 2017 (SA) regulates sentencing in South Australia.
If the defendant is a youth, then the Young Offenders Act 1993 (SA) also applies. See Juvenile justice system and Sentencing by the Youth Court for more information about sentencing of youth offenders. See also the recidivist young offender provision in section 55 of the Sentencing Act 2017 (SA).
The primary purpose in sentencing a defendant is to protect the safety of the community [Sentencing Act 2017 (SA) s 3]. Additionally, the court can take into account a number of sentencing principles and factors when determining sentence. The relevant sentencing factors are the same regardless of whether the defendant pleads guilty or is found guilty. The sentencing factors are set out in section 11 of the Sentencing Act 2017 (SA):
The court is also required to apply general principles of sentencing, being the common law concepts of proportionality, parity and totality [see Sentencing Act 2017 (SA) s 10].
If the court is sentencing an offender in relation to a child sexual offence, then the court 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].
The court cannot sentence a defendant for committing an offence that they were not convicted of [s 10(1)(d)], nor can a term of imprisonment be imposed unless the seriousness of the offence justifies the penalty, or imprisonment is required to protect the safety of the community [see s 10(2)].
In determining the sentence for an offence, the court must not have regard to the following:
However, in sentencing a defendant charged with contravening an intervention order under 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 order program as section 11(7) of the Sentencing Act 2017 (SA) does not apply [see s 31(4)].
Aside from sentencing purposes, principles, and factors, there are a number of other matters set out in the Sentencing Act 2017 (SA) which may affect sentencing.
The Sentencing Act 2017 (SA) sets out a scheme that provides for a reduction in sentence for early guilty pleas. This scheme was amended on 2 November 2020, with the maximum discounts available for an early guilty plea in the higher courts reduced. The criteria a court must have regard to when determining a percentage discount has also been expanded.
The legislated scheme provides for a reduction of sentence by up to 40% for early guilty pleas in the Magistrates Court [Sentencing Act 2017 (SA) s 39] and up to 35% (up to 25% for serious indictable offences) in the higher courts [s 40]. Under the early guilty plea discount scheme, the earlier the guilty plea is in the court process, the greater the potential reduction in sentence.
In determining the relevant reduction in sentence, the court can consider [ss 39, 40]:
Section 41 of the Sentencing Act 2017 (SA) outlines the process the court must follow in applying sentencing reductions.
For an outline of the specific reductions available and at what stage in the proceedings they apply, see the Duty Solicitor Handbook chapter on Guilty Pleas.
Section 37 of the Sentencing Act 2017 (SA) allows a sentencing court to reduce a defendant's sentence if the defendant has cooperated with a law enforcement agency.
A court may reduce a defendant's sentence on this basis if the defendant's cooperation:
The court may, if satisfied these criteria are met, reduce the defendant's sentence by a percentage it thinks appropriate [s 37(2)].
In determining the reduction to apply, the court must consider the relevant factors set out in s 37(3) which include:
A defendant may receive a sentence reduction pursuant to s 37 prior to their cooperation if they undertake to cooperate with a law enforcement agency. If they later withdraw their cooperation, the Director of Public Prosecutions may apply to the court to have the defendant resentenced [s 42].
A defendant serving a term of imprisonment who later cooperates with a law enforcement agency may apply to the sentencing court to be resentenced having regard to their cooperation [s 43].
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 sections 50 and 51 of the Sentencing Act 2017 (SA).
The court cannot substitute penalties or impose a single penalty under section 25 of the Sentencing Act 2017 (SA) in relation to the penalty otherwise imposed for serious firearm offences [see sections 49 and 51 of the Sentencing Act 2017 (SA)].
See section 49(1) for definitions 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 [Sentencing Act 2017 (SA) 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):
[see 54(2)].
A defendant is deemed to be a serious repeat offender if they have been convicted of three serious offences on separate occasions [s 53(1)(a)].
A serious offence includes:
where a sentence of imprisonment (other than a wholly suspended sentence, or a sentence that consists only of a community based custodial sentence) has been imposed [s 52]. The Court of Appeal has held that offences resulting in sentences of detention, as opposed to terms of imprisonment, while a youth do not constitute a qualifying ‘serious offence’ when determining whether a defendant is a serious repeat offender [see R v Scott-Combe[2023] SASCA 37].
A defendant may also be deemed to be a serious repeat offender if they have committed two serious sexual offences on separate occasions [Sentencing Act 2017 (SA) 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 at the time of the offence, and sexual exploitation of person with a cognitive impairment [s 52].
There are provisions in the Sentencing Act 2017 (SA) which relate to 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 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 be released on parole and can only apply for release on licence if they satisfy the Supreme Court that they are both capable of and willing to control their sexual instincts, and that they are no longer a risk to the community [see Sentencing Act 2017 (SA) ss 58(1a), s 59(1a)].
Applications are governed by Chapter 2 Part 5 of the Uniform Special Statutory Rules 2022 (SA).
Where a guilty plea is entered without the need for any trial, the sentencing court must ascertain the facts of the case before it can pass sentence.
If the defendant has pleaded guilty in the Magistrates Court, the police prosecutor outlines the facts from the police report.
In the higher courts, if the accused was committed for sentence or pleads guilty at an arraignment before the trial, the judge has the facts set out in the formal statements of the witnesses (and any evidence given at a preliminary hearing).
If material facts are disputed, there may need to be a disputed fact hearing (see Disputed fact hearing).
Once the court has established the facts of the case, the prosecution advises the court if there are any prior offences (see Prior offending). In particular, where a defendant has been convicted of a serious offence, the prosecution will advise if there are previous serious offences which make the defendant liable to be declared a serious repeat offender. The prosecution may also put other relevant matters to the court, and the defendant must be provided with the opportunity to have further offences taken into account when dealing with the principal offence (if applicable) [Sentencing Act 2017 (SA) ss 31 - 35].
Other relevant matters may include the prosecution’s outline of any injury, loss or damage resulting from the offence, any applications for restitution or compensation on behalf of the victim and/or any victim impact statements [ss 13, 14, 123 and 124]. A victim impact statement may set out how the victim believes the crime has affected them [Sentencing Act 2017 (SA) s 14]. The statement can be read aloud in court by the victim or another person or can be considered prior to sentencing without being read aloud in court [Sentencing Act 2017 (SA) s 14(2)].
The defendant, or their lawyer, then has an opportunity to address the court about any matters relevant to sentencing. These are called submissions in mitigation of penalty (see Mitigating circumstances).
The defendant is able, with the court's consent, to appear during sentencing via audio visual link as opposed to being physically present in court [Sentencing Act 2017 (SA) s 21].
Sometimes the defendant admits their guilt of the offence but disputes some of the allegations made by the prosecution. For example in an assault case the defendant might say that they punched the victim once but the prosecution might be saying that the facts of the case are that the victim was punched five times and kicked twice. The facts on which the court is imposing a sentence must be clear.
Not all disputed facts will end up at a disputed facts hearing. Before the defendant enters their guilty plea they can negotiate with prosecution to determine if there can be an agreement as to the factual basis on which the defendant pleads guilty. This can be done either by the defendant themselves or through their lawyer. If the dispute can not be resolved through negotiations, then it will be decided at a disputed facts hearing.
Then the difference will be resolved by the magistrate or judge hearing evidence from some of the prosecution witnesses and may also hear from the defendant and any defence witnesses.
If the case requires a disputed facts hearing then the case would be adjourned to a later date when the witnesses were available to give evidence. It is conducted in the same way as a trial except that the court no longer has to decide if the defendant is guilty (having admitted this even on their own version of what happened) but simply what happened, a decision as to the facts of the case.
The court when sentencing will consider prior offences the defendant has committed. Of particular importance are the ones that are similar in nature to the offence they are being sentenced for. For example, if the offence they are being sentenced for is theft, then all offences involving dishonesty are most relevant.
The prosecutor will tell the court of any offences that have been proved against the defendant in the past. These may include matters which the person committed as a youth and also matters where no conviction was recorded but the charge was proved. Although, family conferences and informal or formal cautions as a youth are not considered to be prior offences for sentencing purposes.
The defendant should been given the details by the prosecutor of what they intend to provide to the court, and the defendant should check them for accuracy before they tendered as evidence in court.
Mitigation of penalty is the lessening, or reducing, of the penalty.
After the prosecutor has provided the appropriate details to the court, the defendant (or their lawyer) then presents any facts or other relevant information in mitigation of penalty and on what might be the most appropriate penalty.
They may also present any relevant evidence such as character evidence or expert reports such as a psychological or psychiatric report. This maybe in a writing or spoken to the court.
Prior to sentencing the court may also order a pre-sentence report. This maybe a report from an expert, such as a psychologist or psychiatrist or a probation officer from the Department of Correctional Services (DCS). This will often cover any issues that may have lead to the offending behaviour such as alcoholism, drug abuse, or mental health concerns, and it will also cover the appropriateness of any of the rehabilitation or intervention programmes. It will also cover general information about the defendants background, family life, education and work history. When a pre-sentence report has been requested, the court usually adjourns the case for four to six weeks for the report to be prepared.
Witnesses may be called to give evidence of the defendant's good character or to explain the circumstances that led to the offence. The defence may present to the court references of the defendant's character, but only with the consent of the prosecutor, unless the referee is in court giving evidence.
The defendant may give evidence in the witness box about the reasons for the offence or any mitigating circumstances. Medical, psychological or psychiatric evidence may also be presented to explain their background and why they may have acted in the way they did.
The court then imposes penalty, see Penalties. The reasons for the sentence should be stated and its legal effect explained to the defendant [Sentencing Act 2017 (SA) s 19].
The Nunga Court Division of the Magistrates Court formally commenced on 1 March 2023. It had been operating in practice from as early as 1999, in initially at Port Adelaide before beginning at other locations. Whilst typically referred to as the Nunga Court, it has also been referred to as Aboriginal Court Day or the Aboriginal Sentencing Court.
The Nunga Court provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.
Pursuant to section 9AA of the Magistrates Court Act 1991 (SA), the purpose of the Nunga Court is to:
The Nunga Court operates from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts. The Courts Administration Authority Nunga Court Bench Book provides an overview the legislation, rules and practices of the Nunga Courts at Port Adelaide and Murray Bridge.
Sentencing procedures are less formal when facilitated through a sentencing conference. The Nunga Court is required to be conducted with as little formality as possible, as quickly as reasonably practicably and in a way that is likely to be understood and followed by the defendant, the defendant's family members and any other members of Aboriginal and Torres Strait Islander communities [s 9AA(4)].
The Nunga Court must be assisted by one or more [s 7C]:
The Nunga Court may also be assisted by any other person the Court deems appropriate. The person or people assisting the Nunga Court do so by providing advice on Aboriginal and Torres Strait Islander society and culture, and any other matter the Court considers appropriate. Aboriginal Justice Officers can also provide the Magistrate with advice on relevant cultural and community issues.
All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.
Eligibility criteria
The Nunga Court Division is available to a defendant:
The Court should grant eligible applications to be sentenced in the Nunga Court, except where it is not appropriate to do so [Magistrates Court Act 1991 (SA) s 9AA(2) and (3)].
A person is an 'Aboriginal or Torres Strait Islander person' for the purpose of the Nunga Court if the person is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the Aboriginal or Torres Strait Islander community to be, an Aboriginal or Torres Strait Islander [s 3(1a)]. All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person.
A defendant who has other unresolved criminal offence(s) in any other court may not be considered appropriate for sentencing in the Nunga Court.
A defendant who is suffering from a mental impairment (as defined by section 30 of the Sentencing Act 2017 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender) may not be eligible for a sentencing conference [see Magistrates Court Diversion Program]. The Court has a discretion as to whether or not the defendant will be accepted for the Nunga Court, and may refuse an application to be sentenced in the Nunga Court.
Historically, Aboriginal Court Day had been available to Aboriginal defendants who had either entered guilty pleas or been found guilty of an offence(s) and who wished to be sentenced by way of a sentencing conference. The Magistrates Court Act 1991 (SA) limits the jurisdiction of the Nunga Court to persons who have pleaded guilty to offences only [s 9AA(2)].
The sentencing conference
A sentencing conference must include the defendant, the defendant's legal representative and the prosecutor, and may include the victim [see Sentencing Act 2017 (SA) s 22(3)]. Nunga Court sentencing conferences must also include an Aboriginal Elder or Respected Person or a person qualified to provide cultural advice. They may also include a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [s 22(4); see also Magistrates Court Act 1991 (SA) s 7C]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [ss 22(1) and 22(6)].
In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Sentencing Act 2017 (SA) s 29(1)].
A sentencing conference will ultimately be conducted in accordance with directions given by the presiding judicial officer [Joint Criminal Rules 2022 (SA) r 148.1(3)].
The section of an Act that creates an offence usually sets out the maximum penalty for the offence, which may be either a period of imprisonment or a fine, or both.
The maximum penalty is normally reserved for the worst type of conduct that could constitute the offence and the court can, and usually does impose lesser penalties than this maximum. The one exception is in the case of murder, where a sentence of life imprisonment is mandatory (that is, no other penalty can be imposed).
Some penalty summaries can be found in the Duty Solicitor Handbook.
Other penalties are found under the sections on specific offences in the chapter Criminal and Traffic Offences.
A court has the ability to sentence a defendant to a term of imprisonment in custody (i.e. in prison).
Alternative, community based orders can also serve as penalties. These include:
These penalties are in addition to the ability of the court (where appropriate) to:
The powers of the sentencing court are explored further in this chapter.
Sections 10(2)(a) and 10(2)(b) of the Sentencing Act 2017 (SA) prohibit a court from imposing a sentence of imprisonment on a defendant unless it is satisfied that the seriousness of the offence warrants imprisonment as the only penalty, or where imprisonment is required to protect the safety of the community.
Jurisdictional limits on sentences
Where a person is convicted in the Magistrates Court the maximum imprisonment a magistrate can give is five years for one offence and ten years for more than one offence, even if the maximum period of imprisonment for the offence/s is over those limits [see Magistrates Court Act 1991 (SA) s 9]. In the higher courts, a judge can impose a sentence up to the maximum for the offence.
Sentences backdated for time already spent
If the person to be sentenced has already been in custody for the offence, the court will usually back date the sentence to commence from that date [Sentencing Act 2017 (SA) s 44(2)(b)]. If this is not possible, then the Court will take into account that time and deduct it from the sentence [s 44(2)(a)]. Where the person has not been in custody, the sentence of imprisonment usually starts from the day on which the defendant is sentenced [s 42(3)(a)].
Single penalty for multiple offences
Where the defendant is convicted of more than one offence the court can (but is not obligated to) impose one sentence to cover all offences [see Sentencing Act 2017 (SA) s 26(1)]. Where one sentence is imposed, the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates [s 26(1)].
However, a single sentence cannot be imposed on some offences (prescribed designated offences), being manslaughter or causing serious harm [see ss 26(2) and 26(3); section 96 for definition of prescribed designated offences].
If any of the offences in respect of which a single 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 single penalty not been applied [s 26(2a)].
Where the court imposes separate sentences for each offence the court can order that the sentences be served concurrently (at the same time), or may increase the time the person will spend in prison by directing that the sentences be served cumulatively (one after the other). There are some limited offences where sentences must be served cumulatively (for example, Offences relating to human remains).
Setting of non-parole periods
When the sentence of imprisonment is for twelve months or more, the court sets a non-parole period. The sentence of imprisonment is referred to as the head sentence, which is the maximum time that the person can be required to serve in custody. The non-parole period is the minimum time that the person must actually serve in custody before being released on parole. When the sentence of imprisonment is less than twelve months, there is no non-parole period set and the person must serve the actual time imposed.
See Sentencing Act 2017 (SA) s 47.
Sentences suspended in part
If the sentence is more than three months but less than one year, then the Court can consider whether the defendant should serve some of that time (not less than one month) and release them on a suspended sentence for the remainder of that time, while subject to a good behaviour bond [see Sentencing Act 2017 (SA) s 96(4)].
Since 1 September 2016 courts in South Australia have been able to, in some circumstances, impose home detention orders [see Sentencing Act 2017 (SA) s 71].
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 a defendant is serving or liable to serve a sentence of indeterminate duration where a non-parole period has not been fixed [s 70(1)(b)(i)]. Similarly, a home detention order cannot be made where a defendant is being sentenced for specific offences including murder (or conspiracy to commit, or aiding, abetting and procuring the commission of murder), treason, or terrorism offences [s 70(1)(b)(ii)]. A home detention order cannot be made when sentencing for an offence where a reduction, mitigation or substitution of penalty is not permitted [s 70(1)(b)(ii)]. This would include where a person is a serious firearms offender and is being sentenced for a serious firearms offence [see ss 51(1)(c), s 25, and 70(1)(b)(ii)(D)].
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 instances where a home detention order should 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 premises listed in the order is suitable and available for the detention, and that the defendant will be properly maintained and cared for while detained at that place [s 71(2)(c)].
A home detention order must also not be made if the defendant would serve the home detention:
Resources have to be available for home detention to be ordered, and a home detention order should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer [s 71(2)(e)].
Section 72 of the Sentencing Act 2017 (SA) sets out many conditions of home detention orders, including [s 72]:
Breach of a home detention order
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 where the court determines it is not appropriate to suspend the sentence 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 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, rather than in prison [Sentencing Act 2017 (SA) s 79(2)].
The paramount consideration of a court when issuing an intensive correction order must be to protect the safety of the community, in line with the primary sentencing purpose [Sentencing Act 2017 (SA) ss 3 and 79(3)]. 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 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 ss 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 can impose such other conditions as it thinks appropriate which can include conditions that:
An intensive correction order has a maximum duration of two years [81(1)(a)] but the term imposed should reflect the proposed term of imprisonment. An intensive correction order does not contain a non-parole period. Therefore, a defendant subject to an intensive correction order will serve the entirety of their sentence subject to the order [see s 47(5)(a)(ii)].
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 [Sentencing Act 2017 (SA) s 91].
If the defendant breaches a condition of an intensive correction order, the court may:
If an intensive correction order is varied or revoked, the court must notify Correctional Services [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 [see Sentencing Act 2017 (SA) ss 83 and 90].
A community service order is available as a penalty in some circumstances:
If a court imposes a sentence of community service (under section 25 of the Sentencing Act 2017 (SA), a formal community service order and acknowledgement in the prescribed form (Form 142G Community Service Order and Acknowledgement) must be issued and given to the defendant or young person [Joint Criminal Rules 2022 (SA) r 154.1].
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 (either from an outstanding expiation notice or pecuniary sum) [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15, and 20]. As this is a voluntary agreement, no court order is required.
An order for community service must not exceed a total of 300 hours, with a minimum requirement of 15 hours [Sentencing Act 2017 (SA) s 105(1)(a)]. However, where community service is ordered following an application by the Fines Enforcement and Recovery Unit for failure to pay a fine, there is no limit on the number 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 [Sentencing Act 2017 (SA) s 105(1)(c)]. Section 105 of the Sentencing Act 2017 (SA) does not apply to the performance of community service work by a young person.
Usually community service is arranged through Correctional Services, and a person subject to a community service order will have a community corrections officer assigned to them [Sentencing Act 2017 (SA) s 107(1)]. If a person fails to obey a direction given to them by a community corrections officer, the Minister for Correctional Services can increase the number of hours of service that the 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 for a breach of the community service order, although an application for a breach of the order can still be made [see ss 112 and 113].
Community service orders can be varied or revoked by the court and the time to complete the service may be extended by up to six months by either the court of the Minister for Correctional Services [s 110].
The Minister for Correctional Services can also cancel unperformed hours of community service [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 those hours. The Minister cannot waive performance of more than ten hours under one bond or order.
If a person fails to complete the ordered community service work within the time specified, an application to breach them may be made in court. Non-performance of community service work is enforceable by imprisonment, with every 7.5 hours not completed equalling one day in prison, or six months, whichever is the lesser [s 115(2)]. If the failure to comply with the order was trivial or there are proper grounds to do so, the court may instead give the person more time to complete the service or may cancel some or all of the remaining hours [s 115(7)]. If the person has the ability to pay a fine, the court may order that instead [s 115(8)].
If a court considers that there are good reasons, it may order the release of a defendant on the defendant's entering into a promise or bond to be of good behaviour for such period as the court thinks fit, usually between 6 months and 3 years [Sentencing Act 2017 (SA) ss 96 and 97].
A good behaviour bond can be ordered:
A good behaviour bond cannot be ordered where a person has committed an offence of murder, conspiracy to murder, aiding, abetting, counselling or procuring the commission of murder, treason, or a terrorist act [see s 95; see Part 5.3 of the Criminal Code Act 1995 (Cth) for definition of terrorist act].
Payment of a sum of money may be specified in the event of non-compliance and guarantors may be required to ensure compliance [see Sentencing Act 2017 (SA) s 100].
The court may include any conditions it thinks appropriate under s 98. This may include conditions that require the defendant to:
If a bond contains a requirement to perform community service work, the conditions and provisions relating to that work are the same that apply for any community service order - see Community Service Orders.
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.
The Court has power to vary or discharge a bond. The application is made either by the probationer (the person subject to the bond) or the Minister for Correctional Services [see s 103].
The Minister may also waive the obligations of probationers to comply with any conditions requiring supervision if the Minister is satisfied that it is no longer necessary for there to be supervision and it is not in the best interest of the probationer to remain under supervision [see s 103(5)].
The Court may also discharge the bond by order [see s 103(8)].
When a person does not comply with a condition of a bond, then there can be enforcement proceedings lodged against them [see s 113]. Usually this occurs when someone commits a further offence, has not completed community service work or has not complied with supervision by a community corrections officer.
When this occurs the Court can, under s 114:
Where a court thinks that an offence is serious enough to impose imprisonment but there is good reason to suspend the sentence, it may do so on the condition that the person enters into a bond [see Sentencing Act 2017 (SA) s 96]. A sentence may be suspended because of factors relating to the defendant (such as age, ill health, or previous good character) which suggest the defendant should not immediately be imprisoned.
However, a court may not suspend:
Also, unless exceptional circumstances exist (in which case certain limitations apply), a court may not suspend the sentence if the person is being sentenced as an adult for:
See further Sentencing Act 2017 (SA) ss 96(3)(c), 96(3)(d), 96(6).
Section 96(9) of the Sentencing Act 2017 (SA) prescribes the type of offences that fall into the above categories.
serious and organised crime offences include:
specific offences against police include :
designated offences include:
Serious sexual offences include:
If a sentences is suspended the defendant is placed on a bond (promise) to be of good behaviour [s 96], prohibiting the defendant from possessing a firearm, any part of a firearm or ammunition and requiring the defendant submit to gunshot residue testing as may be reasonably required [see s 96(2)].
A defendant may also be directed to surrender any firearms, part of firearms or ammunition [s 101(1)] or be required to meet a number of other additional conditions, see Good behaviour bonds. If the bond is not breached, the defendant does not have to serve the sentence of imprisonment. However, if the bond is breached (for example where the defendant commits a further offence during the period of the bond) the defendant may be ordered to serve the suspended sentence [see s 114]. If the court is satisfied that the breach is trivial, or that there are proper grounds upon which it should be excused, the court can refrain from revoking the suspension and extend the bond, extend the time to do any community service, or otherwise revoke or vary conditions of the bond [see further s 114(3)].
If a person on probation under a suspended sentence bond complies with the bond, then, once the bond term is over, then the sentence is also completed (they can not then be sent to gaol, as they have served their sentence by complying with the bond) [s 96(8)].
Where the court decides a charge is proved but considers that the defendant is unlikely to commit such an offence again, and because of the defendant's:
the defendant should not be punished, or only nominally punished, the court may, without imposing a conviction, make an order to either dismiss the charge, impose a fine or discharge the defendant on a good behaviour bond [Sentencing Act 2017 (SA) s 25].
Section 25 applications are usually argued for minor first offences.
However, when the court imposes no conviction, both the police and the court still keep a record of the person's appearance in court and the offence they have committed and this record can be brought up in court should the person re-offend, or apply for a police clearance certificate, see Effects of Criminal Convictions.
The Act creating the offence usually sets out whether a fine can be imposed and the maximum fine payable. If it does not a fine may still be imposed, as long as there is good reason to do so [Sentencing Act 2017 (SA) s 25].
The court is obliged to consider the defendant's means and ability to pay in fixing the amount of the fine, and should not order a fine which would cause hardship to any dependants [Sentencing Act 2017 (SA) s 120; and Fry v Bassett (1986) 44 SASR 90].
The court is not to fix the time or the manner for payment of a pecuniary sum [Sentencing Act 2017 (SA) s 122; for those powers see Part 3 Division 2 of the Fines Enforcement and Debt Recovery Act 2017 (SA)].
The court also has the power to reduce a penalty below the minimum stated by the relevant Act where good reason exists to do so [Sentencing Act 2017 (SA) s 25]. Note however that this section does not allow the court to impose less than the mandatory minimum disqualification of licence, for example, in drink driving matters. See Alcohol, Drugs and Driving for more information.
In addition to any penalty, court costs and administrative charges are payable, the amount depending on the number of charges:
Prosecution Administration Fee — $150 (for any number of charges) [see Criminal Procedure Act 1921 (SA) s 189A; Criminal Procedure (General) Regulations 2017 (SA) reg 10].
The Victims of Crime Levy* is in addition to any penalty and is levied for every charge under the Victims of Crime Act 2001 (SA) [s 32, see also levy amounts set out in Schedule 1 Victims of Crime (Fund and Levy) Regulations 2018 (SA)]:
| TYPE OF OFFENCE | Levy |
|
Expiated offence - Adult — Youth |
$92 $20-$40 |
| Summary offence — Adult Court
— Youth Court |
$250
$40-$100 |
| Indictable offence — Adult Court
— Youth Court |
$405
$60-$100 |
*Levy amounts as at 31 January 2023
Note that for some offences (such as robbery or serious criminal trespass) the levy is twice the amount that would otherwise be payable [see Schedule 1 Victims of Crime (Fund and Levy) Regulations 2018 (SA)].
The court may, at the time of convicting or sentencing a person under the age of 18, exonerate them from liability to pay the levy [Victims of Crime Act 2001 (SA) s 32(3a)]. However, in the case of adult offenders, the court may not reduce the levy or exonerate the defendant from liability to pay it [s 32(7)].
Other costs
A defendant who pleads or is found guilty of an offence may be ordered to pay other costs in some cases. For example a person pleading guilty to a charge of making a false report to the police may be ordered to pay the costs of any investigations carried out in response to the false complaint. Alternatively, if there has been some damage that occurred due to the offence or during the course of an offence, for example a door broken to gain entry into a house, then the cost of repairing this damage may also be awarded. This does not cover all potential costs or claims involved, see Victims of Crime Compensation for more information.
Additional costs after trial
If however, the defendant has been found guilty after trial then additional court fees, prosecution fees plus witness fees may be payable. After a trial in the Magistrates Court, the magistrate usually awards costs against the party who lost the trial, either against a defendant or the police. This does not always happen and is at the discretion of the court. There is a schedule of costs published in the Joint Criminal Rules 2022 (SA). Those costs may comprise of the cost of the defendant's lawyer or the police prosecutor and witness fees. If a matter is delayed through the neglect or incompetence of a solicitor, the court can reduce all or part of the solicitor's account, order the solicitor to pay the costs of the prosecution or pay compensation to the court. Similarly a witness who does not attend court can also be ordered to pay compensation for wasted time [see Criminal Procedure Act 1921 (SA) s 189 which gives power to the Court, with some minor exceptions, to award costs as it sees fit].
Prosecutions brought by other bodies (e.g. councils)
In prosecutions brought by other bodies, for example, local councils in parking matters, the defendant, who is found guilty after a trial is usually ordered to pay the cost of the attendance of a prosecution lawyer to conduct the case. Costs are not usually awarded against the losing party in District and Supreme Court trials.
Compensation
The court must not make an order requiring a defendant to pay compensation if satisfied that the defendant does not have the means to pay it or such an order would unduly prejudice the welfare of his/her dependants (except for the Victims of Crime Levy) [Sentencing Act 2017 (SA) s 120(1)].
The court should give priority to compensation over fines where both are ordered, or both can be ordered [s 121].
Compensation ordered to be paid should be paid to the court that ordered the payment, which will then forward it to the person to be compensated.
As an amount of compensation is considered a pecuniary debt, in the event that compensation is ordered and not paid by the defendant, the Fines Enforcement and Recovery Unit may commence enforcement proceedings against the defendant in relation to the debt - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7 regarding enforcement action.
Restitution of Property
If a defendant is found guilty of an offence that involves the misappropriation of property, the court can order the defendant (or any person in possession of the property) to restore it to its rightful owner [Sentencing Act 2017 (SA) s 123]. In the event such an order is not complied with, the person affected can request that a sheriff either seize the property (possibly with the assistance of the Police) or value the property and order the defendant pay that amount [s 126(2)].
Victims of Crime Compensation
A victim of crime may also be able to make a claim for personal injury through the Criminal Injuries Compensation Fund, see Victims of Crime Compensation.
The Victims of Crime Act 2001 (SA) deals with the treatment of victims of crime in the criminal justice system and provides limited rights to statutory compensation for injury suffered as a result of the commission of criminal offences. Under this act the courts have certain powers to order compensation for loss suffered. A court may order a defendant to pay compensation to a person for injury or loss sustained by that person through the crime. Any such award of payment under this Act is independent of the sentencing process.
Where persons are convicted of certain criminal offences courts have certain powers in relation to the forfeiture of goods used in connection with the offence or which the defendant may use to profit by the offence [See for example forfeiture of weapons etc under the Summary Offences Act 1953 (SA) s 21M, and in relation to instruments for gaming s 16(2)]
Illegal drugs and equipment or devices that are the subject of the offence may be forfeited pursuant to section 52E of the Controlled Substance Act 1984 (SA).
The Criminal Assets Confiscation Act 2005 (SA) allows the Director of Public Prosecutions to take proceedings to recover the profits of crime with the proceeds going to the Victims of Crime Fund.
The Criminal Assets Confiscation Act 2005 (SA) also allows for all the property, except for excluded or protected property, of a prescribed drug offender to be automatically forfeited to the Crown upon conviction [see s 56A]. The property that can be forfeited in these circumstances does not necessarily have to have been acquired through the commission of an offence. See: Confiscation of Assets or Profits. Any proceeds garnished from the forfeited property of a prescribed drug offender are paid into the Justice Rehabilitation Fund, which operates separately from the Victims of Crime Fund and was established to fund rehabilitation and crime prevention programs.
A court may, on finding a person guilty or sentencing them, issue an intervention order as if a complaint or application had been made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [Sentencing Act 2017 (SA) s 28]. Although the order is issued at the sentencing stage it is not a sentence for the purposes of the Act [s 28(4)(b)].
Before issuing any such order the court must consider whether it would be counterproductive [s 28(2)]. For example, if issuing the order would reveal the whereabouts of the person it is intended to benefit to the defendant when they otherwise would not have had this information.
Where a person is found guilty of a sexual offence such as rape, sexual exploitation of a person with a cognitive impairment, indecent assault, or any offence involving sexual exploitation or abuse of a child, the court must consider whether an intervention order should be issued [s 28(5)]. If a decision is made not to issue an order, reasons must be given. The decision not to issue an order is subject to appeal in the same way that any order made by the court on sentence would be.
An application to vary or revoke an intervention order made under section 28 of the Sentencing Act 2017 (SA) must be made using the prescribed forms (Form 172C Interlocutory Application to Vary or Revoke Order- Intervention Order, and Form 7- Affidavit) and by seeking the necessary leave of the court (see rules 167.1- 167.7 of the Joint Criminal Rules 2022 (SA)).
Section 168 of the Road Traffic Act 1961 (SA) empowers the court to disqualify from driving (or alter the licence conditions of) a person convicted of an offence under the Act relating to motor vehicles; or an offence under any Act in which a motor vehicle was used to facilitate the commission of the offence. For example, where a person drives a vehicle to the scene of a bank robbery.
A person who owes court fines is treated in a similar way to an ordinary debtor. The Fines Enforcement and Recovery Unit manages the collection of fines and court costs. The Chief Recovery Officer of that Unit has various enforcement powers in relation to these types of debts. The Unit can recover and take enforcement action against debtors in relation to pecuniary debts (court issued fines, compensation, victim of crime levies, etc) and expiation notices (fines).
To avoid additional costs associated with late payment of fines and court debts, a debtor must either:
If a debtor is unable to meet the suggested instalment plan, they can seek an extension of time to pay or vary the period for payments by instalment (over up to 12 months) after payment of a prescribed fee ($22.70*) [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15].
If they fail to pay a court fine within 28 days of the date it was imposed by the court, a fee of $117* will be added to the amount owing. If they fail to pay the court fine within a further 30 days of it becoming due, an additional fee of $215* will be added to the amount owing (in addition to the $117 that would have already been added).
A reminder notice will be issued after 28 days has passed of the court fine becoming due. A fee of $63* applies for the issuing of the reminder notice, and this amount is added onto the total amount owing.
See Fines Enforcement and Debt Recovery Regulations 2018 (SA) regulation 6.
*Fees current as at 1 July 2023.
In addition to an extension of time or payment by instalments, there are other arrangements available under section 15(5) of the Fines Enforcement and Debt Recovery Act 2017 (SA) including:
A fee may be payable to enter into one of these arrangements. Such a fee may be added to the debt owed, or may in some circumstances be waived [see s 15(2) and (3)].
Non-payment of fines
If a debtor has previously been subject to an enforcement action (if they previously have not paid fines within the time period) or if they are an undischarged bankrupt, the Chief Recovery Officer may refuse to make arrangements to pay by instalments or other alternative methods of repayment [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(8)]. When the debtor cannot make an arrangement with the Chief Recovery Officer, or in cases of non compliance with an existing arrangement, the Chief Recovery Officer has wide ranging powers to enforce the debt, including:
The Chief Recovery Officer also has the ability to seek orders requiring the debtor to undertake community service [s 46(1)(a)] or requiring the participation in a treatment program [s 46(1)(b)], where the above enforcement options are unsuccessful or inappropriate.
Where the Chief Recovery Officer has seized the number plates of a motor vehicle as part of an enforcement process, the number plates are forwarded to the Registrar of Motor Vehicles who can subsequently cancel the vehicle registration [see s 61A of the Motor Vehicles Act 1959 (SA)].
A debtor can either undertake community service through an agreed arrangement with the Fines Enforcement and Recovery Unit in relation to offsetting a debt, or pursuant to a court order issued as part of enforcement proceedings for a debt.
Community Service as an agreement with the Fines Enforcement and Recovery Unit
Community service agreements will only be made by agreement with the Chief Recovery Officer where the Chief Recovery Officer is satisfied that the debtor does not have, and is not likely within a reasonable time to have, the means to pay the debt without them or their dependants suffering hardship [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(6)].
The number of hours of community service to be completed by the debtor equates to 7.5 hours for every $200 owing [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(12); Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 8(1)(a)].
If, at any time, the Chief Recovery Officer is satisfied that a debtor subject to a community service agreement has the means to pay the fine without them or their dependants suffering hardship, they may terminate the agreement by notice in writing to the debtor [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(10)].
If a debtor enters into an agreement with the Chief Recovery Officer to undertake community service, and then fails to complete that period of community service, the Chief Recovery Officer has wide powers to recover the debt in other ways [see Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. See also: Fine Enforcement.
An agreement between a debtor and the Chief Recovery Officer should not be confused with an order to complete a period of community service as ordered by the Magistrates Court [see section 46 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. A failure to complete a court-ordered period of community service may result in a period of imprisonment being imposed - see Community Service as an Enforcement Action below.
Community Service as an Enforcement Action
In certain circumstances the Chief Recovery Officer may apply to the Magistrates Court for an order for community service. The Chief Recovery Officer can make such an application where:
The court can order that community service be performed where it is satisfied that the debtor does not have, and is not likely to have in a reasonable amount of time, the means to satisfy the amount owing without them or their dependants suffering hardship [s 46(1)].The amount of community service the court can order should equate to 7.5 hours for each prescribed unit of monetary amount owing [s 46(3)]. If a court ordered community service order is made, the debtor cannot leave the State without the permission of the court [s 46(3)(b)].
If a debtor does not comply with a court-ordered community service order, then a term of imprisonment can be imposed in default of compliance. Such a term will be calculated on the basis of 1 day of imprisonment for every 7.5 hours of community service remaining to be performed, or 12 months, whichever is less [s 47(2)].
Where a person has incurred a pecuniary debt (by virtue of a court ordered fine, compensation, victim of crime levy, etc), they may be able to participate in a treatment program in lieu of paying the debt, through either an agreement with the Fines Enforcement and Recovery Unit, or pursuant to a court order as part of an enforcement action.
Treatment program by agreement with Fines Enforcement and Recovery Unit
The Chief Recovery Officer can enter into an agreement requiring a debtor to complete an approved treatment program if they are satisfied that the debtor cannot pay the debt without them or their dependants suffering hardship [Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15(5)(g) and 15(7)]. The Chief Recovery Officer must also be satisfied that the debtor is suitable to participate in a program that is also available at an appropriate time and place [s 15(7)].
If a debtor completes or substantially completes an approved treatment program in accordance with an agreement, the Chief Recovery Officer must waive payment of whole or part of the debt [s 15(13)].
If, at any time, the Chief Recovery Officer is satisfied that the debtor subject to a treatment program agreement has the means to pay the debt without them or their dependants suffering hardship, they may terminate the agreement by notice in writing to the debtor [s 15(10)].
The Chief Recovery Officer has the power to enter into, vary and revoke an agreement to participate in a treatment program without the need to apply to the court.
Treatment program as an enforcement action
Where the debtor has not complied with an agreement in relation to the debt, and other enforcement action has failed or is inappropriate, an application may be made to the court for a treatment program order [s 46]. The court has the ability to make appropriate orders for the assessment of the debtor's eligibility and suitability in a treatment program [s 46(14)].
Where the debtor has complied with an order relating to a treatment program, the monetary amount owed must be reduced accordingly by the method prescribed by regulations [s 46(13)].
If a debtor does not comply with a court-ordered treatment program, then a term of imprisonment can be imposed in default of compliance [s 47]. The term of imprisonment is determined in accordance with method set out in the regulations [s 47(3)].
Applications under sections 46 and 47 are governed by Chapter 7 Part 2 of the Uniform Special Statutory Rules 2022 (SA).
The Chief Recovery Officer has specific powers in relation to debtors who have incurred fines and expiation notices for driving while unlicensed [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 16 and 21].
Where a debtor:
then the Chief Recovery Officer may, upon application of the debtor, waive all or part of the debt owing, or agree to enter into other arrangements with the debtor as contained in sections 15 and 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA).
See Fines Enforcement and Debt Recovery Act 2017 (SA) ss 16 and 21.
The Chief Recovery Officer cannot make a determination for a waiver of all or part of a debt if a similar determination has previously been made with the debtor [ss 16(2) and 21(2)].
This provision operates as an incentive for a driver, who has persistently driven unlicensed, to obtain a driver's licence which can then offset the debt they may owe for a driving unlicensed offence.
*The process may be different and amounts owing will change when dealing with an expiation notice as opposed to a court issued fine.
Court imposed Fine of $200
Fine $200 plus Prosecution costs of $150 + Victims of Crime levy @ $262 [Victims of Crime (Fund and Levy) Regulations 2018 (SA) Schedule 1]
= $612.
After 28 days, a Reminder Notice is sent, adding an additional fee of $63.
A further amount is added to the amount owed ($117) for failing to pay the fine.
Amount now due is$792.
After 14 days, Fine Enforcement may commence if the fine is still unpaid.
The Chief Recovery Officer may suspend the debtor's driver's licence and stop the debtor doing any business with the Registrar of Motor Vehicles (such as registering a vehicle). Each action, if applied, will add $22.70 to the amount owing.
Amount now due is $837.40
After a further 30 days have passed since the fine originally became due (being 28 days after it was issued), an additional fee of $215 is added to the amount owing.
Amount now due is $1,052.40
The Chief Recovery Officer has wide enforcement powers. They can place a charge on a debtor's land, seize and sell property, garnish a debtor's wages and publish a debtor's name online.
At any stage a debtor can pay the amount then outstanding in full or make a payment arrangement with the Fines Enforcement and Recovery Unit.
* amounts as at 1 July 2023.
Expiation Notices
The same procedure applies for an unpaid Police Expiation Notice or notice issued by a local government council, however, the late fees that apply may be different [see Fines Enforcement and Debt Recovery Regulations 2018]. If the notice is disputed, a person may elect to be prosecuted or may request that the notice be withdrawn because it is trifling. If payment will cause financial hardship, an application should be made to the Fines Enforcement and Recovery Unit to pay by instalments or to extend the time to pay.
If both an expiation notice and reminder notice are ignored, enforcement action may be taken by the Fines Enforcement and Recovery Unit - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7 and Expiation Notices.
The Service and Execution of Process Act 1992 (Cth) governs procedure in relation to interstate fine enforcement, where a court fine has not been fully discharged and the offender is believed to be a resident of another State.
The procedure involves the registration and enforcement of interstate court fines as if they were fines incurred in the registering state [see Service and Execution of Process Act 1992 (Cth) ss 112 and 113; s 110 for definitions].
Once registered, 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)].
The power to issue warrants of commitment for unpaid fines has not existed in South Australia for many years.
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