Matters affecting sentence

Whether the defendant pleads guilty or is found guilty after a trial, the factors to which the court should have regard in deciding the penalty are still the same. Most of these considerations are set out in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), these are:

  • The circumstances of the offence, whether any other offences are to be taken into account, and whether the offence is part of a course of conduct consisting of a series of criminal acts of the same or similar character [ss 10(1)(a), 10(1)(b) and 10(1)(c)];
  • The personal circumstances of any victim of the offence and any injury, loss or damage resulting from the offence [s 10(1)(d) and 10(1)(e)];
  • If the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child (other than the victim (if any) of the offence or another offence [s 10(1)(f)];
  • Whether the defendant has shown contrition for the offence through reparation or in any other manner [s 10(1)(g)];
  • Any cooperation by the defendant with the investigation of the offence [s 10(1)(h)];
  • If a forfeiture of property (other than forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence - the nature and extent of that forfeiture [s10(1)(k)];
  • The character, antecedents,  age, means and physical or mental condition of the defendant [s 10(1)(l)];
  • The probable effect of any sentence under consideration on dependants of the defendant[s 10(1)(n)];
  • The deterrent effect of a sentence on the defendant or other persons [s 10(1)(i)];
  • The need for adequate punishment for the offence [s 10(1)(j)];
  • The rehabilitation of the defendant [s 10(1)(m); and
  • Any other relevant matter [s 10(1)(o)].

Other considerations include:

Reduction of Sentence on a Guilty Plea

In March 2013 a legislated scheme was established that provides for a reduction of sentence by up to 40% for early guilty pleas in both the Magistrates Court [Criminal Law (Sentencing Act) 1988 (SA) s 10B] and in other courts [Criminal Law (Sentencing) Act 1988 (SA) s 10C]. Under these provisions the earlier the guilty plea is in the process, the greater the discount in sentence.

Sections 10B and 10C commenced on 11 March 2013 and apply to any proceedings commencing after that date, regardless of when the offence or offences occurred [see Schedule 1,1 Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA)].

See also information about the Major Indictable Early Resolution Process here: http://www.lawsocietysa.asn.au/pdf/Inbrief/Major_Indictable.pdf

Cooperation with law enforcement

In order for the person assisting law enforcement to receive a reduction in sentence, the information provided must be provided in exceptional circumstances, directly relate to combating serious and organised criminal activity, and contribute significantly to the public interest [Criminal Law (Sentencing) Act 1988 (SA) s 10A].  

Other elements that are considered before a reduction in sentence can be granted under this section include the truthfulness, usefulness and reliability of the information along with various other considerations outlined in s 10A(3) of the Criminal Law (Sentencing) Act 1988 (SA).  

If a person receives a reduction of sentence under s 10A and then withdraws their cooperation with the law enforcement agency the DPP can apply for the person to be resentenced [Criminal Law (Sentencing) Act 1988 (SA) s 29DA].

A court, on providing reasons for sentence, is not required to state any information that relates to a persons' cooperation with police (or other law enforcement agency) [ see Criminal Law (Sentencing) Act 1988 (SA) s 9(1)-(1a)].

These amendments apply to proceedings relating to an offence instituted after the commencement of the Amendment Act (11 March 2013), regardless of when the offence occurred [Schedule 1, 1 Criminal Law (Sentencing) (Supergrass) Amendment Act 2012 (SA)].

Serious Firearms Offenders

A sentence of imprisonment cannot generally be suspended [see Criminal Law (Sentencing) Act 1988 (SA) s 20AAC] in relation to a defendant deemed to be a serious firearms offender [see s 20AAB - see Firearms]. Similarly the Court cannot substitute penalties under s 18 or impose a single penalty under s 18A in relation to the penalty otherwise imposed for serious firearms offence/s [see ss 20AA and 20AAC].

Serious Repeat Offenders

In certain circumstances, a defendant may be deemed [see Criminal Law (Sentencing) Act 1988 (SA) s 20B(a1)] or declared by the Court [see s 20B(1)] to be a serious repeat offender. If a defendant is deemed or declared 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 must be at least four-fifths the length of the sentence [see s 20BA].

A defendant is deemed to be a serious repeat offender if they have committed "Category A serious offences" (which includes home invasion, serious and organised crime or serious firearms offences) on three separate occasions and been convicted of those offences [see s 20B(a1)]. A defendant may also be declared by the Court to be a serious repeat offender if they have committed on three separate occasions serious offences unless the offences are "Category A serious offences" or sexual offences involving children under the age of 14, in which case only two offences are required [see s 20AB(1)].

Sexual Predators

There are also provisions in the Criminal Law (Sentencing) Act 1988 (SA) for sexual predators who have been found guilty of certain offences and are incapable of controlling or unwilling to control their sexual instincts. The Court, if it finds that this is the case, can impose an indeterminate sentence [s 23], see Indeterminate detention.

Sentencing Guidelines

A sentencing court must take into account any relevant sentencing guidelines set by the Full Court under s 29A of the Criminal Law (Sentencing) Act 1988 (SA), although it is not bound to follow a guideline if, in the circumstances of the case, there are good reasons for not doing so.

In determining sentence a court must also give proper effect to the following:

  • the need to protect the safety of the community;
  • the need to protect the security of the lawful occupants of their home from intruders;
  • in the case of an offence involving the sexual exploitation of a child—the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence;
  • in the case of an offence involving arson or causing a bushfire— (i) the need to protect the community from offending of such extreme gravity by ensuring that paramount consideration is given to the need for general and personal deterrence; and (ii) the fact that the offender should, to the maximum extent possible, make reparation for the harm done to the community by his or her offending; and
  • in the case of an offence involving a firearm, the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.

[Criminal Law (Sentencing) Act 1988 (SA) s 10(2) sub-s (a)-(e)]

In determining the sentence for an offence, a court must not have regard to any of the following:

(a) the fact that a mandatory minimum non-parole period is prescribed in respect of the sentence for the offence under this Act or another Act;

(b) any consequences that may arise under the Child Sex Offenders Registration Act 2006 (SA);

(ba) the good character or lack of previous convictions of the defendant if - (i) the offence is a class 1 or class 2 offence withing the meaning of the Child Sex Offenders Registration Act 2006 (SA) ;and (ii) the court is satisfied that the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in the commission of the offence; and

(c) the fact that the defendant—(i) has not participated in, or has not had the opportunity to participate in, an intervention program; or (ii) has performed badly in, or has failed to make satisfactory progress in, such a program.

[Criminal Law (Sentencing) Act 1988 (SA) s 10(3) sub-s (a)-(c)] 

Matters affecting sentence  :  Last Revised: Tue Jan 12th 2016
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