This chapter highlights factors relevant to the sentencing process and matters a duty solicitor should consider while preparing a matter for sentencing. This chapter should be read in conjunction with the previous chapter on Guilty pleas.
Please note that as of 30 April 2018 the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA).
Safety of the community as the primary purpose
The Sentencing Act 2017 (SA) prescribes that the primary purpose for sentencing a defendant must be to protect the safety of the community (whether as individuals or collectively) [Sentencing Act 2017 (SA) s 3]. The primary purpose is further enshrined in section 9 of the Sentencing Act 2017 (SA) which emphasises that it must be the paramount consideration for a court when determining sentence [see s 9].
In addition to the primary sentencing purpose, the Sentencing Act 2017 (SA) outlines a number of secondary sentencing purposes. These include:
Whilst most sentencing principles and powers are found in the Sentencing Act 2017 (SA), there are many other Acts which empower the courts to impose penalties or orders upon persons found guilty of an offence. Other Acts manage issues consequential to sentencing. The following provides information about other legislative sources of powers relevant to sentencing:
In many State Acts, the penalties for offences are stated as divisional penalties and the actual maximum penalties per offence are not stated [see 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a person who pleads guilty to an offence is taken to have been found guilty of the offence, unless the plea is later withdrawn or the defendant found incompetent to have entered the plea [see s 5(4)(b)].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].
The following outlines the sections of the Sentencing Act 2017 (SA) which most often impinge on duty solicitor work in relation to the sentencing process.
See also the Law Handbook's detailed sections on The Sentencing Process.
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:
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:
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:
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:
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).
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:
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:
In relation to submissions on the basis the defendant is unlikely to commit the offence again, the duty solicitor might submit, for example:
In relation to submissions whether good reason exists, the type of submissions a duty solicitor could make is largely self evident. However, it is important to note that a youth dealt with in the Youth Court may well have no conviction recorded a number of times, unless the offence is serious.
| ADVISING THE DEFENDANT ABOUT SECTION 24 |
|---|
| The duty solicitor should give the defendant very clear advice about what a successful without conviction application means. A record of the matter is kept so that if the person appears in court again the Court knows that they are not a first offender. However, if completing a job or visa application for example, if asked: ‘Do you have a criminal conviction?’ the answer ‘no’ can be given. However if the question refers to a criminal “charge” or “record”, the answer must be ‘yes’. |
The following outlines some situations where the duty solicitor should consider making an application to the Court for a penalty without conviction.
An application in accordance with section 24 should always be made if the matter is a first offence and not too serious, such as shoplifting, damage property (where the quantum of damage is not significant), street offences and so forth.
It may be possible to argue that certain previous convictions are not relevant to the exercise of the discretion not to convict in a particular case, such as where that person has prior convictions for drink driving offences but comes before the court for shoplifting or some relatively minor offence which is out of character.
It is appropriate to argue section 24 in relation to minor drug matters, for example possess cannabis (for personal use). It can be particularly important, given that entry into some countries (or example the USA) is or may be denied if there is a conviction for a drug offence.
The sentencing court will not usually consider a without conviction application in the following circumstances:
The main thing to look for in deciding whether to ask the Magistrate to invoke section 24 is the defendant's prior criminal record. Generally speaking, adult courts will hesitate to use section 24 where a person has a prior conviction (but see above, where these convictions are not relevant and the present matter is minor).
The section applies only to cases where the court imposes either a fine or community service work. The court cannot refrain from recording a conviction if imprisonment is imposed. It can refrain from recording a conviction if a good behaviour bond is imposed, although section 97 of the Sentencing Act 2017 (SA) applies rather than section 24.
Section 16 cannot be used to reduce compulsory licence disqualifications [see Road Traffic Act 1961(SA) s 47B(3); Criminal Law Consolidation Act 1935 (SA) s 86A].
While section 25 of the Sentencing Act 2017 (SA) provides for the court being able to reduce, add or substitute penalties in certain circumstances, it cannot be used to argue for a reduction in compulsory licence disqualifications [see Road Traffic Act 1961(SA) s 47B(3); Criminal Law Consolidation Act 1935 (SA) s 86A].
In terms of recording a conviction, most traffic matters ordinarily attract a conviction. However, with minor traffic matters it is sometimes possible to obtain a conviction without penalty.
A court has the ability to sentence a defendant to a custodial sentence.
Alternative, community based orders can also serve as penalties. These involve the defendant serving their sentence (whether suspended or not) in the community, subject to certain conditions. Such penalties include:
These penalties are explored further below.
These penalties are in addition to the ability of the court (where appropriate) to:
The Commission generally instructs its duty solicitors that they should not conduct guilty pleas where there is a real likelihood that the sentence imposed will be one of imprisonment, whether immediate or suspended [see Guilty Pleas chapter]. Imprisonment is discussed below for the sake of completeness.
Section 10(2) of the Sentencing Act 2017 (SA) prohibits a penalty of imprisonment being imposed unless the court decides that:
The Act is clear that the primary sentencing purpose – to protect the safety of the community – must be the paramount consideration when a court is determining and imposing sentence [see ss 3 and 9].
In determining a sentence, a court is also required to apply the common law concepts of proportionality, parity and totality, and must follow the principle that a defendant may not be sentenced on the basis of having committed an offence for which they were not convicted of [see s 10(1)].
Imprisonment is a strong possibility in the following cases:
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)].
Section 72 of the Sentencing Act 2017 (SA) sets out many conditions of home detention orders, including:
See section 72 of the Sentencing Act 2017 (SA).
Breach of Home Detention
Failing to comply with, or breaking a condition, of a home detention order is an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
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:
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:
In addition the sentencing court may consider suspending part of the period of imprisonment after the defendant has served a specified period in prison (being not less than one month) [see Sentencing Act 2017 (SA) s 96(4)].
It is a sentencing error for this option to not be considered by the sentencing court in situations where it could be applied.
The period of imprisonment the defendant is liable to serve must be more than three months but less than one year [see s 96(4)]. This option does not apply where the sentence of imprisonment is exactly three months or exactly twelve months.
The remainder of the sentence of imprisonment is suspended providing the defendant enters a good behaviour bond which takes effect upon their release from prison [see s 96(4)(b)].
Where a defendant is being sentenced to a period of imprisonment of 2 years or more for a prescribed designated offence, the court may order that the defendant serve a period of imprisonment (which must be at least one-fifth of the non-parole period fixed) and suspend the remainder of the sentence with the defendant entering into a bond [see s 96(5)].
| EXPLAIN THE MEANING OF “SUSPENSION” TO THE DEFENDANT |
|---|
| A suspended sentence is nevertheless a sentence of imprisonment and not a “soft option” or “no penalty at all”, as some have chosen to describe it. A breach of the bond associated with a suspended sentence renders the defendant liable to serve a term of imprisonment. So, for the period of the bond, the probationer has the threat of a prison term hanging over their head. It is very important for the duty solicitor to make sure the defendant understands this. |
The reasoning when dealing with a breach of bond application is outlined in the following steps:
1. Has the probationer failed to comply with conditions of the bond?
Where the Court is satisfied the probationer has failed to comply with a condition of the suspended sentence bond, the Court may revoke the suspension and order the sentence be carried into effect [see Sentencing Act 2017 (SA) s 114(1)(c); see however exceptions contained in ss 114(1)(c)(ii) and 114(3)].
2. Are there proper grounds to excuse the failure to comply with conditions of the bond or was the failure to comply with the bond trivial?
If the Court is satisfied the failure to comply with the conditions of the bond was trivial or there are proper grounds upon which the failure should be excused, the Court can refrain from revoking the suspension [see Sentencing Act 2017 (SA) ss 114(1)(c)(ii) and 114(3); and R v Buckman (1988) 47 SASR 303 for relevant circumstances]. The Court must consider matters related to the actual breaching offence such as a difference in character between the breaching offence and the offence(s) relating to the bond, or whether there is a marked disproportion in penalty between the breaching offence and the original offence. The Court may refrain from revoking the suspension and extend the term of the bond (not exceeding one year), extend up to six months the period allowed to complete any remaining community service, cancel all or some unperformed hours of community service, revoke or vary any other condition of the bond [see 114(3)(a)]. Where the bond has expired, the Court may require the probationer to enter into a new bond for up to twelve months [see s 114(3)(c)].
3. Are there any special considerations to justify a reduction in the original penalty of imprisonment?
If the Court decides to revoke the suspension of the sentence, it may reduce the term of the sentence where there are special circumstances justifying such a reduction [see Sentencing Act 2017 (SA) s 114(5)(a)]. Special circumstances are circumstances which have arisen after the imposition of the suspended sentence which, had they existed at the time of the sentence, would have resulted in a shorter sentence [see R v Buckman (1988) 47 SASR 303 for relevant considerations]. Some examples of special circumstances are demonstrated rehabilitation, the need to care for young children or elderly, and subsequent physical or mental health issues.
In addition, the Court may consider credit for time spent in custody since initiation of the breach proceedings (but not for the offences constituting the breach) [see Sentencing Act 2017 (SA) ss 114(5)(b), and 114(5)(c); R v Cartwright [1990] SASC 2548 ; Police v Saunders (2003) 229 LSJS 97 ; [2003] SASC 268 ].
The Court may order the suspended sentence be cumulative upon any other current sentence(s) of imprisonment or imprisonment to be served [s 114(5)(e)]. Where a court other than the probative court sentences a probationer for the original offence, that court cannot impose a sentence that the probative court could not have imposed [see s 114(6)].
Another important sentencing option is the good behaviour bond, 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.