Where a defendant is charged with multiple offences, they have the option of being convicted of the principal offence, and having the other offence(s) taken into account (but without having a conviction or separate penalty imposed for those offences).
The court must ask the defendant whether they want the court to take into account any further offence(s) when dealing with the defendant for the principal offence [Sentencing Act 2017 (SA) s 33(1)]. If the defendant agrees, the prosecution may file a list of additional charges, which specifies the other offence(s) with which the defendant has been charged but not convicted [Sentencing Act 2017 (SA) s 32(1)]. The list may be filed at any time after the court finds the defendant guilty of the principal offence, but before the court deals with the defendant for the principal offence [Sentencing Act 2017 (SA) s 32(2)]. The list of additional charges must be signed by both the defendant and a representative on behalf of the prosecution [s 32(4)].
The defendant is required to admit guilt to the further offence(s) in order for them to be taken into account [s 33(2)(a)(i)], but is not convicted for the further offence(s) after admitting guilt [s 35(4)]. If the court takes the further offence(s) into account, the penalty imposed must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account [s 33(3)].
The court can make other orders once taking the further offence(s) into account but cannot impose a separate penalty for the further offence(s) [s 34(1)].
Once further offence(s) are taken into account, no further proceedings can be taken or continued in relation to the further offence(s), unless the conviction for the principal offence is quashed or set aside [s 35(1)(b)]. The fact that the further offence(s) have been taken into account will be certified by the court on the list of additional charges [s 35(1)(a)].
The Act makes it clear that taking a further offence into account should not be regarded for any purposes as convicting the defendant of the further offence [s 35(4)].
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