The law relating to sentencing and enforcement of sentences in South Australia is contained in the Criminal Law (Sentencing) Act 1988 (SA). 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.
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)].
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.
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)]
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 a superior court, 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.
This may include any applications for compensation on behalf of the victim or provide the court with a victim impact statement, which is a statement by the victim saying how they believe the crime has affected them and can be presented in writing or orally [Criminal Law (Sentencing) Act 1988 (SA) ss7, 7A].
Other matters put by the prosecution and the victim’s role may include details of any injury, loss or damage resulting from the offence to assist the court to determine sentence [Criminal Law (Sentencing) Act 1988 (SA) s 7].
The defendant, or his or her 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).
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 she or he 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.
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 (she or he 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 her or his background and why she or he may have acted in the way she or he did.
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.
In addition to any penalty, court costs and administrative charges are payable, the amount depending on the number of charges:
Prosecution Administration Fee — $100 (for any number of charges) [see Criminal Procedure Act 1921 (SA) s 189A].
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 2003 (SA)]:
|TYPE OF OFFENCE||Levy|
|Summary offence — Adult Court
— Youth Court
|Indictable offence — Adult Court
— Youth Court
Note that for some offences, the levy is twice the amount that would otherwise be payable [see Schedule 1 Victims of Crime (Fund and Levy) Regulations 2003 (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)].
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 Magistrates Court Rules. 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.
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:
- social background;
- mental condition; or
- because of the trivial nature of the offence;
- or its extenuating circumstances,
the defendant should not be punished, or only nominally punished. Then 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 [Criminal Law (Sentencing) Act 1988 (SA) s 16] .
Section 16 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 [Criminal Law (Sentencing) Act 1988 (SA) s 18].
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 [Criminal Law (Sentencing) Act 1988 (SA) s 13, 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 [s 14A] [for those powers see Part 9 of the Criminal Law (Sentencing) Act 1988 (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 [Criminal Law (Sentencing) Act 1988 (SA) s 17]. 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.
Usually community service can be arranged through Correctional Services, unless suitable work cannot be found for the defendant because of his or her physical or mental infirmity [see Criminal Law (Sentencing) Act 1988 (SA) s 45].
Section 47 of the Criminal Law (Sentencing) Act 1988 (SA) sets out the requirements in relation to community service. An order must not exceed a total of 300 hours (including previous community service obligations still being completed) and there is a minimum period of 15 hours [s 47(1)(a)]. There must be a time specified within which the community service work is to be completed, and this can not exceed 18 months [s 47(1)(c)]. Section 47 does not apply in relation to the performance of community service by youths [see instead the Young Offenders Act 1993 (SA) s 49A].
Community service orders can be varied or revoked by the court and the time within which the order is to be completed may be extended by up to six months by either the court or the Minister for Correctional Services [see Criminal Law (Sentencing) Act 1988 (SA) s 50A].
The Minister for Correctional Services also has the power to cancel unperformed hours of community service [see s 50B].There must be substantial compliance with the original requirement, together with no apparent intention to deliberately evade the obligations under the bond or order and there is a sufficient reason for not insisting on the performance of some or all of those hours. The Minister cannot waive performance of more than ten hours under the one bond or order.
The Minister for Correctional Services also has powers where there has been a failure by a person to obey a direction by a community corrections officer in the performance of community service [ s 51]. The hours of community service may be increased by no more than 24 in aggregate despite the fact that its effect may be to increase the total number of hours to be performed above the normal limit [s 51(3)].
If someone does not comply with the terms of the order, including not complying with directions by their community corrections officer, or failing to complete the 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. If the failure to comply was trivial or there are proper grounds to do so, the court may not send the person to prison and instead give them more time to complete the work or cancel some or all of the remaining hours, or if the person has the ability to pay a fine, then the court may order that instead [see Criminal Law (Sentencing) Act 1988 (SA) s 71].
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 bond to be of good behaviour for such period as the court thinks fit, usually between six months and three years [see Criminal Law (Sentencing) Act 1988 (SA) ss 39 and 40].
This can occur with or without a criminal conviction. Payment of a sum of money may be specified in the event of non-compliance and guarantors may be required to ensure compliance [see s 41].
A court may impose conditions that it thinks fit within the bond [see s 42(1)] including, but not limited to:
- being under the supervision of a community corrections officer;
- undergoing medical, psychological or psychiatric treatment;
- live at a particular address or not to live at a particular address;
- perform community service work;
- abstinence from drugs or alcohol;
- payment of compensation;
- undertake an intervention program; etc.
The Court has power to vary or discharge a bond. The application is made either by the probationer or the Minister for Correctional Services [see s 44].
The Minister may also waive the obligations of probationers to comply with any conditions requiring supervision if the Minister for Correctional Services 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 44(2)].
The Court may also discharge the bond by order [see s 44(3)].
When a person does not comply with a condition of a bond, then they can be enforcement proceedings lodged against them [see s 57]. 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:
- require payment of the monetary sum attached to the bond;
- order payment of the guarantee;
- convict and sentence the person;
- allow further time to complete community service work; or
- if the breach is trivial, or there is proper grounds for excusing it, the Court may not do anything or extend the bond period by up to one year, or vary or revoke conditions of the bond [see s 58].
Where a court thinks that the 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 Criminal Law (Sentencing) Act 1988 (SA) s 38(1)]. 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 the sentence if the person is being sentenced:
- (a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant ;(unless the sentences are less than 1 year but more than 3 months, in which case can order the person serve a minimum 1 month and suspend the remainder)[Criminal Law (Sentencing) Act 1988 (SA) s 38(2)(b)].
Also, a court may not suspend more than four-fifths of the sentence if the person is being sentenced:
- (b) as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence (manslaughter or causing serious harm).[Criminal Law (Sentencing) Act 1988 (SA) s 38(2)(b)].
Also, unless exceptional circumstances exist (in which case certain limitations apply), a court may not suspend the sentence if the person is being sentenced:
- (c) as an adult for a serious and organised crime offence or specified offence against police; or
- (d) as an adult for a designated offence and, during the five year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.[See further Criminal Law (Sentencing) Act 1988 (SA) ss 38(2)(c), 38(2)(d), 38(2)(ba), 38(2c)].
serious and organised crime offences include:
- participation in a criminal organisation;
- blackmail or abuse of public office where the offence is aggravated by committing the offence for the benefit of or in connection with a criminal organisation;
- offences concerning witnesses and jurors; and
- offences of trafficking and manufacturing of controlled drugs.
specific offences against police include :
- attempted manslaughter and attempted murder where the victim is a police officer; and
- causing serious harm to a police officer.
designated offences include:
- conspiracy to commit murder, manslaughter;
- aiding suicide;
- unlawful threats and unlawful stalking;
- dangerous driving to escape a police pursuit;
- causing harm and causing serious harm;
- shooting at police officers;
- rape, compelled sexual manipulation, unlawful sexual intercourse, gross indecency, persistent sexual exploitation of a child, indecent assault, abduction;
- serious criminal trespass; and
- assaults with intent.
If a sentences is suspended the defendant is placed on a bond (promise) to be of good behaviour [s 38(1)], prohibiting the defendat 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 42(a1)].
A defendant may also be directed to surrender any firearms, part of firearms or ammunition [s 42A] 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 58]. 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 58(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 38(3)].
As of 1 September 2016 courts in South Australia can, in some circumstances, impose home detention orders [s 33BB Criminal Law (Sentencing) Act 1988 (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 [Statutes Amendment (Home Detention) Act 2016 (SA) s 7].
Home detention orders
The court can suspend a sentence and order that the defendant serve the sentence on home detention if:
- it has imposed a sentence of imprisonment; and
- considers that the sentence should not be suspended under a bond;
- and considers that the defendant is a suitable person for home detention.
[Criminal Law (Sentencing) Act 1988 (SA) s 33BB(1)].
The chief consideration of the court when determining whether to make a home detention order is the safety of the community [s 33BB(3)]. The court also has to take into consideration the impact that the home detention order is likely to have on:
- any victim of the offence; and
- any spouse or domestic partner of the defendant; and
- any person residing at the residence at which the prisoner would, if released, be required to reside;
- any relevant report/s ordered by the court; and
- any other matter the court thinks relevant.[s 33BB(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 33BB(2)(a)(i) Criminal Law (Sentencing) Act 1988 (SA)].
A home detention order also can not be made if the defendant is being sentenced to imprisonment that is to be served cumulatively on another term of imprisonment, or alongside with another term of imprisonment then being served, or about to be served, by the defendant [s 33BB(2)(a)(ii)].
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 33BB(2)(b)].
Home detention orders have many conditions including:
- a condition requiring the person to remain at the home throughout the period of the order and not to leave at any time except for:(i) paid employment;(ii) urgent medical or dental treatment;(iii) attending education, training or instruction or any other activity as required by the court or as approved or directed by the person’s home detention officer; or(iv) any other purpose approved or directed by the home detention officer;
- a condition of good behaviour during the period of the order;
- a condition to obey the lawful directions of the person’s home detention officer;
- a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
- a condition to submit to tests (including testing without notice) for gunshot residue;
- other conditions as the court may specify (this could include monitoring by an electronic device).
[s 33BC(1) Criminal Law (Sentencing) Act 1988 (SA)].
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.
Imprisonment is the last resort. Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) prohibits imprisonment unless the defendant:
- has shown violent tendencies toward others:
- is likely to commit a serious offence if not imprisoned:
- has previously been convicted of an offence punishable by a sentence of imprisonment; or
- no other sentence would be appropriate given the gravity or circumstances of the offence.
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 s 19(3)(a)]. In the superior 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 already has been in custody for the offence the Court is told the date when the defendant was first taken into custody for the offence and usually the sentence will be back dated to commence from that date. If this is not possible, then the Court will take into account that time and deduct it from the sentence. Where the person has not been in custody, the sentence of imprisonment usually starts from the day on which the defendant was sentenced.
Single penalty for multiple offences
Where the defendant is convicted of more than one offence there can be one sentence imposed to cover all offences [see s 18A] or separate sentences can be imposed for each offence. However this does not apply to some offences (prescribed designated offences , which include:
- conspiracy to commit murder, manslaughter;
- aiding suicide;
- unlawful threats and unlawful stalking;
- dangerous driving to escape a police pursuit;
- causing harm and causing serious harm;
- shooting at police officers;
- rape, compelled sexual manipulation, unlawful sexual intercourse, gross indecency, persistent sexual exploitation of a child, indecent assault, abduction;
- serious criminal trespass; and
- assaults with intent.) [See ss 18A (2)-(3) Criminal Law (Sentencing) Act 1988 (SA)]
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).
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.
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 [see s 38(2a)].
The court must not order 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) [Criminal Law Sentencing Act 1988 (SA) s 13(1)].
The court should give priority to compensation over fines [see Criminal Law Sentencing Act 1988 (SA) s 14].
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.
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.
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) [Criminal Law (Sentencing) Act 1988 (SA) s 19A]. Although the order is issued at the sentencing stage it is not a sentence for the purposes of the Act [s 19A(2)(b)].
Before issuing any such order the court must consider whether it would be counterproductive. 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. 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.
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.
In order to avoid additional costs associated with late payment of fines you must either:
- Pay in full by the due date; or
- Negotiate payment by instalments with the Fines Enforcement and Recovery Unit prior to the due date on the notice.
If you are unable to meet the suggested instalment plan then you 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 [Criminal Law (Sentencing) Act 1988 (SA) s 70(1)].
In addition to an extension of time or payment by instalments there are other arrangements available under section 70(3) which include:
- (a) payment by instalments (including instalments paid over a period exceeding 12 months);
- (b) an extension of time to pay;
- (c) the taking of a charge over land;
- (d) the surrender of property to the Fines Enforcement and Recovery Officer;
- (e) payment of any amount, including by direct credit, by or through some other person or agency (eg deductions from an ADI account or wages);
- (f) any other form of arrangement agreed by the Fines Enforcement and Recovery Officer and the debtor
Non-payment of fines
If you have previously been subject to an enforcement action (if you previously have not paid fines within the time period) or are an undischarged bankrupt, the Fines Enforcement and Recovery Officer may refuse to make arrangements to pay by instalments or other alternative methods of repayment. In these cases, and in cases of non-compliance with a payment arrangement, the Fines Enforcement and Recovery Officer has wide ranging powers to enforce the debt, including:
- seizure and sale of assets (s 70K);
- garnishing of wages or bank accounts (s 70L);
- suspension of driver’s licence (s 70M);
- restriction on transacting business with the Registrar of Motor Vehicles ( no applications made by a debtor for renewal of licence or payment of registration will be processed until the fine is paid) (s 70N);
- clamping or impounding of motor vehicle (s 70O);
- dispose of vehicle seized under s 70O if uncollected (s 70P);
- publication of names of debtors subject to enforcement action (s 70Q).
Community services orders as an alternative to payment are restricted to cases of hardship, see Community service orders.
Community service orders will only be made where the Court (on an application made by the Fines Enforcement and Recovery Officer) is satisfied that the debtor does not have, and is not likely to have within a reasonable time, the means of satisfying the amount owed without them or their dependants suffering hardship [Criminal Law (Sentencing) Act 1988 (SA) s 70U].
The Fines Enforcement and Recovery Officer may, at any time, investigate a debtor’s financial circumstances to determine whether he/she can pay the debt [ Criminal Law (Sentencing) Act 1988 (SA) s 70B]. Failure to comply with any request for information is an offence.
Maximum penalty: $10 000.
If, at any time, the Fines Enforcement and Recovery Officer is satisifed that a debtor subject to a community service order has the means to pay a fine without they or their dependants suffering hardship, the Court may revoke the community service order [s 70U(10)].
Court imposed Fine of $200
Fine $200 plus court costs @ $177.00 + Prosecution costs @ $16 + Victims of Crime levy @ $60*
[*Victims of Crime (Fund and Levy) Regulations 2003, Schedule 1].
= to $453.00]
After 28 days, a Reminder Notice is sent ($52.50 fee)*
[*Criminal Law (Sentencing) Regulations 2014, Schedule 2].
Amount now due is $505.50
After 14 days, Fine Enforcement proceedings commence
Drivers licence will be suspended for 60 days and Registrar of Motor Vehicles will cease business (eg cannot register vehicle)
Fee $46 + previous costs
Amount due is now $551.50
There is then 81 days before a summons to attend
Debtor must attend Fines Enforcement and Recovery Unit to show cause why fines have not been paid.
[*Sheriff’s Regulations 2005, Schedule 1 [items 2 + 4]].
Amount due is now $646.50
A Debtor can be arrested and/or property can be seized and sold. Additional sanctions include the making of an order to garnishee the debtor’s monies and to encumber land. The names of absconding debtors may also be published.
At any stage the debtor can pay the amount then outstanding in full by due date or make a payment arrangement with the Fines Enforcement and Recovery Unit.
The same procedure applies for an unpaid Police Expiation Notice or notice issued by a local government council. 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 installments or to extend the time to pay. However, if enforcement proceedings have already commenced, the only option is to apply to the court for a review of the enforcement order.
As of 3rd February 2014 provisions under the Criminal Law (Sentencing) Act 1988 (SA) allowing for review of an enforcement order have been removed.
Where a fine imposed in another State has not been fully paid, leading to a warrant for commitment being issued, a warrant of apprehension may be issued by the registrar of the interstate court and forwarded to South Australia for execution [ see further Service and Execution of Process Act 1992 (Cth)]. If the person pays the fine in full after the warrant has been issued but before it has been executed, the warrant may be withdrawn.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.