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The Sentencing Process

On 30 April 2018, the Sentencing Act 2017 (SA) replaced the previous Criminal Law (Sentencing) Act 1988 (SA) and now regulates sentencing in South Australia.

If the defendant is a youth, then the Young Offenders Act 1993 (SA) also applies. See Juvenile justice system and Sentencing by the Youth Court for more information about sentencing of youth offenders. See also recidivist young offender provision in section 55 of the Sentencing Act 2017 (SA).

Sentencing Purposes, Principles and Factors

The primary purpose in sentencing a defendant is to protect the safety of the community [Sentencing Act 2017 (SA) s 3]. Additionally, the court can take into account a number of sentencing principles and factors when determining sentence. The relevant sentencing factors are the same regardless of whether the defendant pleads guilty or is found guilty. The sentencing factors are set out in section 11 of the Sentencing Act 2017 (SA):

  • The nature, circumstances, and seriousness of the offence [s 11(1)(a)];
  • The personal circumstances and vulnerability of any victim of the offence, whether because of the victim's age, occupation, relationship to the defendant, disability or otherwise [s 11(1)(b)];
  • The extent of any injury, emotional harm, loss or damage resulting from the offence or any significant risk or danger created by the offence, including any risk to national security [s 11(1)(c)];
  • The defendant's character, general background and offending history [s 11(1)(d)];
  • The likelihood of the defendant re-offending [s 11(1)(e)];
  • The defendant's age, and physical and mental condition (including any cognitive impairment) [s 11(1)(f)];
  • The extent of the defendant's remorse for the offence, having regard in particular as to whether -
    • the defendant has provided evidence that they have accepted responsibility for their actions [s 11(1)(g)(i)]; and
    • the defendant has acknowledged any injury, loss or damage caused by their actions, or voluntarily made reparation for any such injury, loss or damage, or both [s 11(1)(g)(ii)];
  • The defendant's prospects of rehabilitation [s 11(1)(h)].

The court is also required to apply general principles of sentencing, being the common law concepts of proportionality, parity and totality [see Sentencing Act 2017 (SA) s 10].

The court cannot sentence a defendant for committing an offence that they were not convicted of [s 10(1)(d)], nor can a term of imprisonment be imposed unless the seriousness of the offence justifies the penalty, or imprisonment is required to protect the safety of the community [see s 10(2)].

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

  • the fact that a mandatory minimum non-parole period is prescribed in respect of the offence under this Act or another Act [s 11(4)(a)];
  • any consequences that may arise under the Child Sex Offenders Registration Act 2006 (SA) [s 11(4)(b)];
  • the good character of lack of previous convictions of the defendant is -
    • the offence is a class 1 or class 1 offence within the meaning of the Child Sex Offenders Registration Act 2006 (SA) [s 11(4)(c)(i)]; and
    • the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in committing the offence [s 11(4)(c)(ii)].
  • the fact that the defendant:
    • has not participated in, or had the opportunity to participate in, an intervention order program [s 11(7)(a)]; or
    • performed badly in, or failed to make progress in, such a program [s 11(7)(b)].

However, in sentencing a defendant charged with contravening an intervention order under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), the court can consider whether the defendant has participated in, or performed badly in, an intervention order program i.e. section 11(7) of the Sentencing Act 2017 (SA) does not apply [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(4)].

Matters affecting sentence

Aside from sentencing purposes, principles, and factors, there are a number of other matters set out in the Sentencing Act 2017 (SA) which may affect sentencing.

Taking further offences into account

Part 2, Subdivision 3 of the Sentencing Act 2017 (SA) creates an optional system for a court to take further offence(s) into account when dealing with a defendant for a principal offence.

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)].

Reduction of sentence for early guilty plea

A scheme providing for a reduction in sentence for early guilty pleas was introduced in the previous Criminal Law (Sentencing) Act 1988 (SA) and continues in the current Sentencing Act 2017 (SA), which came into operation on 30 April 2018.

The legislated scheme provides for a reduction of sentence by up to 40% for early guilty pleas in both the Magistrates Court [Sentencing Act 2017 (SA) s 39] and other courts [Sentencing Act 2017 (SA) s 40]. Under the scheme, the earlier the guilty plea is in the court process, the greater the potential reduction in sentence.

In determining the relevant reduction in sentence, the court can consider:

  • The proportionality of the reduction of sentence as compared to the seriousness of the offence;
  • The stage in the proceedings at which the defendant first indicated their intention to plead guilty;
  • Whether the defendant was initially charged with a different offence and whether negotiations occurred with the prosecution in relation to the additional offence(s);
  • In the case where a defendant has been charged with more than one offence, whether the defendant has pleaded guilty to the other offences;
  • Whether the defendant was made aware of any relevant matters which would have enabled them to plead guilty at an earlier stage; and
  • Whether the defendant could not have reasonably pleaded guilty at an earlier stage because of circumstances beyond their control.

See Sentencing Act 2017 (SA) ss 39 and 40.

Section 41 of the Sentencing Act 2017 (SA) outlines the process the court must follow in applying sentencing reductions.

For an outline of the specific reductions available and at what stage in the proceedings they apply, see Duty Solicitor Handbook chapter on Guilty Pleas.

Cooperation with law enforcement agency for serious and organised criminal activity

The Sentencing Act 2017 (SA) carries over the scheme previously introduced in the previous Criminal Law (Sentencing) Act 1988 (SA) regarding possible sentencing reductions for people who cooperate with law enforcement agencies. In order for a defendant assisting a law enforcement agency to receive a potential reduction in sentence, the information they provide to the agency:

  • must directly relate to combatting serious and organised criminal activity; and
  • must be provided in exceptional circumstances; and
  • must contribute significantly to the public interest

See Sentencing Act 2017 (SA) s 37(1).

The court is able to reduce the sentence by such a percentage as it thinks appropriate [Sentencing Act 2017 (SA) s 37(2)].

In determining the percentage reduction to apply, the court can consider:

  • The circumstances of the defendant's plea;
  • The nature and extent of the defendant's cooperation;
  • The timeliness of the cooperation;
  • The truthfulness, usefulness and reliability of the information provided

along with various other considerations as outlined in section 37(3) of the Sentencing Act 2017 (SA).

If a person who made an undertaking and received a sentencing reduction pursuant to section 37 later withdraws their cooperation with the law enforcement agency, the DPP can apply to have the person resentenced [s 42]. Similarly, if a person serving a term of imprisonment later cooperates with a law enforcement agency, they can apply to have their sentence quashed and a new, reduced sentence imposed [s 43].

Reduction of sentence for cooperation during court proceedings

Where a defendant pleads not guilty to an indictable offence, but is found guilty, has otherwise complied with all statutory and court requirements during the proceedings, and has conducted the case in a cooperative and expeditious manner, the court may reduce the sentence by up to 10% [Sentencing Act 2017 (SA) s 38(1)].

In reducing the sentence the court must consider the impact of the proceedings on any victim of the offence, as well as the benefit to the community of the defendant's conduct in relation to the proceedings [Sentencing Act 2017 (SA) s 38(2)].

Serious firearms offenders

A sentence of imprisonment cannot generally be suspended in relation to a defendant deemed to be a serious firearms offender and for a serious firearms offence - see sections 50 and 51 of the Sentencing Act 2017 (SA).

The court cannot substitute penalties or impose a single penalty under section 25 of the Sentencing Act 2017 (SA) in relation to the penalty otherwise imposed for serious firearm offences [see sections 49 and 51 of the Sentencing Act 2017 (SA)].

See section 49(1) for definitions of serious firearms offence and serious firearms offender.

Serious repeat offenders

In certain circumstances, a defendant may be deemed to be a serious repeat offender [see Sentencing Act 2017 (SA) s 53]. If a defendant is deemed to be a serious repeat offender, the court is not bound to ensure that the sentence it imposes is proportional to the offence, and the non-parole period it imposes must be at least four-fifths of the sentence [Sentencing Act 2017 (SA) ss 54(1)(a) and 54(1)(b)].

A defendant is deemed to be a serious repeat offender if they have been convicted of a category A serious offence (which includes home invasion, serious and organised crime, or serious firearms offences) on three separate occasions [see s 53(1)]. A defendant may also be deemed to be a serious repeat offender if they have committed, on three separate occasions, serious offences (which includes certain drug offences, terrorism offences, aggravated robbery, and others - see section 52(1)), or sexual offences involving children under the age of 14, in which case only two offences are required [see Sentencing Act 2017 (SA) s 53(1)(c)].

Sexual predators

There are provisions in the Sentencing Act 2017 (SA) which relate to sexual predators who have been found guilty of certain offences and are deemed to be incapable of controlling, or unwilling to control, their sexual instincts. The court, if it finds that a defendant should be dealt with pursuant to these provisions, can impose an indeterminate sentence when sentencing the defendant [Sentencing Act 2017 (SA) s 57]. An offender subject to an indeterminate sentence cannot be released on parole and can only apply for release on licence if they satisfy the Supreme Court that they are both capable of and willing to control their sexual instincts, and that they are no longer a risk to the community [see Sentencing Act 2017 (SA) ss 58(1a), s 59(1a)].

Sentencing Procedure

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, and the defendant must be provided with the opportunity to have further offences taken into account when dealing with the principal offence (if applicable) [Sentencing Act 2017 (SA) ss 31 - 35].

Other relevant matters may include 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 [Sentencing Act 2017 (SA) s 14]. The statement can be read aloud in court by the victim or another person, or can be considered prior to sentencing without being read aloud in court [Sentencing Act 2017 (SA) s 14(2)].

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 [Sentencing Act 2017 (SA) s 13].

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).

The defendant is able, with the court's consent, to appear during sentencing via audio visual link as opposed to being physically present in court [Sentencing Act 2017 (SA) s 21].

Disputed fact hearing

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.

Then the difference will be resolved by the magistrate or judge hearing evidence from some of the prosecution witnesses and may also hear from the defendant and any defence witnesses.

If the case requires a disputed facts hearing then the case would be adjourned to a later date when the witnesses were available to give evidence. It is conducted in the same way as a trial except that the court no longer has to decide if the defendant is guilty (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.

Prior offending

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.

Mitigating circumstances

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 court then imposes penalty, see Penalties. The reasons for the sentence should be stated and its legal effect explained to the defendant [Sentencing Act 2017 (SA) s 19].

Penalties

The section of an Act that creates an offence usually sets out the maximum penalty for the offence, which may be either a period of imprisonment or a fine, or both.

The maximum penalty is normally reserved for the worst type of conduct that could constitute the offence and the court can, and usually does impose lesser penalties than this maximum. The one exception is in the case of murder, where a sentence of life imprisonment is mandatory (that is, no other penalty can be imposed).

Some penalty summaries can be found in the Duty Solicitor Handbook.

Other penalties are found under the sections on specific offences in the chapter Criminal and Traffic Offences.

A court has the ability to sentence a defendant to a term of imprisonment in custody (i.e. in prison).

Alternative, community based orders can also serve as penalties. These include:

  • a sentence of imprisonment suspended on entering into a bond (good behaviour bond) suspended sentence;
  • a good behaviour bond (issued as a stand alone penalty, not part of a suspended sentence);
  • a sentence to be served in the community while subject to intensive correction;
  • a sentence to be served in the community while subject to home detention;
  • a community service order.

These penalties are in addition to the ability of the court (where appropriate) to:

  • issue a fine;
  • make a forfeiture order;
  • issue an intervention order;
  • issue a licence disqualification;
  • make an order for compensation;
  • make an order for restitution of property;
  • dismiss a charge; or
  • order that no conviction be recorded (with or without a penalty).

The powers of the sentencing court are explored further in this chapter.

Imprisonment

Sections 10(2)(a) and 10(2)(b) of the Sentencing Act 2017 (SA) prohibit a court from imposing a sentence of imprisonment on a defendant unless it is satisfied that the seriousness of the offence warrants imprisonment as the only penalty, or where imprisonment is required to protect the safety of the community.

Jurisdictional limits on sentences

Where a person is convicted in the Magistrates Court the maximum imprisonment a magistrate can give is five years for one offence and ten years for more than one offence, even if the maximum period of imprisonment for the offence/s is over those limits [see Magistrates Court Act 1991 (SA) s 9]. In the 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 has already been in custody for the offence, the court will usually back date the sentence to commence from that date [Sentencing Act 2017 (SA) s 44(2)(b)]. If this is not possible, then the Court will take into account that time and deduct it from the sentence [s 44(2)(a)]. Where the person has not been in custody, the sentence of imprisonment usually starts from the day on which the defendant is sentenced [s 42(3)(a)].

Single penalty for multiple offences

Where the defendant is convicted of more than one offence the court can (but is not obligated to) impose one sentence to cover all offences [see Sentencing Act 2017 (SA) s 26(1)]. Where one sentence is imposed, the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates [s 26(1)].

However, a single sentence cannot be imposed on some offences (prescribed designated offences), being manslaughter or causing serious harm [see ss 26(2) and 26(3); section 96 for definition of prescribed designated offences].

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.

See Sentencing Act 2017 (SA) s 47.

Sentences suspended in part

If the sentence is more than three months but less than one year, then the Court can consider whether the defendant should serve some of that time (not less than one month) and release them on a suspended sentence for the remainder of that time, while subject to a good behaviour bond [see Sentencing Act 2017 (SA) s 96(4)].

Home detention orders

From the 1 September 2016 courts in South Australia have been able to, in some circumstances, impose home detention orders [see Sentencing Act 2017 (SA) s 71].

The court can order that the defendant serve a sentence on home detention if:

  • it has imposed a sentence of imprisonment; and
  • it considers that the sentence should not be suspended under a bond; and
  • it considers that the defendant is a suitable person for home detention.

See Sentencing Act 2017 (SA) s 71(1).

A home detention order cannot be made where a defendant is serving or liable to serve a sentence of indeterminate duration where a non-parole period has not been fixed [s 70(1)(b)(i)]. Similarly, a home detention order cannot be made where a defendant is being sentenced for specific offences including murder (or conspiracy to commit, or aiding, abetting and procuring the commission of murder), treason, or terrorism offences. [s 70(1)(b)(ii)]. A home detention order cannot be made when sentencing for an offence where a reduction, mitigation or substitution of penalty is not permitted [s 70(1)(b)(ii)]. This would include where a person is a serious firearms offender and is being sentenced for a serious firearms offence [see ss 51(1)(c), s 25, and 70(1)(b)(ii)(D)].

The paramount consideration of the court when determining whether to make a home detention order is to protect the safety of the community [s 69(2)]. The court also has to take into consideration the impact that the home detention order may have on:

  • 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.

See Sentencing Act 2017 (SA) s 71(3).

In addition to those mentioned above, there are a number of instances where a home detention order should not be made, including:

  • if the making of such an order would, or may, affect public confidence in the administration of justice [s 71(2)(a)]; or
  • if the defendant is being sentenced as an adult:
    • to a period of imprisonment with a non-parole period of 2 years or more for a prescribed designated offence [s 71(2)(b)(i)]; or
    • for a serious sexual offence [s 71(2)(b)(ii)]; or
    • for a serious and organised crime offence or specified offence against police [s 71(2)(b)(iii)]; or
    • for a designated offence and where, during the preceding five years, they have been sentenced to imprisonment or home detention for another designated offence [s 71(2)(b)(iv)].

For definitions of serious sexual offence,serious and organised crime offence and designated offence, see Sentencing Act 2017 (SA) s 71(5); or see Suspended Sentences.

A home detention order must not be made unless the court is satisfied that the premises listed in the order is suitable and available for the detention, and that the defendant will be properly maintained and cared for while detained at that place [s 71(2)(c)].

A home detention order must also not be made if the defendant would serve the home detention concurrently with a term of imprisonment already being served, or about to be served [s 71(2)(d)].

Resources have to be available for home detention to be ordered, and a home detention order should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer [s 71(2)(e)].

Conditions of home detention orders

Section 72 of the Sentencing Act 2017 (SA) sets out many conditions of home detention orders, 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:
    • paid employment as approved by a home detention officer; or
    • urgent medical or dental treatment; or
    • attendance at an assessment for medical treatment, for the purpose of an intervention order, or for 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
    • any other purpose approved or directed by the home detention officer;
  • a condition requiring the person to be of good behaviour;
  • a condition to be under the supervision of, and to obey the lawful directions of a home detention officer;
  • a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
  • a condition relating to the use of drugs other than for therapeutic purposes;
  • a condition to submit to tests (including testing without notice) for either gunshot residue or relating to drug use;
  • a condition that the person be monitored by the use of an electronic device; or
  • other conditions as the court may specify

See Sentencing Act 2017 (SA) s 72.

Failing to comply with, or breaking a condition of, a home detention order is an offence.

Maximum penalty: $10 000 or imprisonment for 2 years.

See Sentencing Act 2017 (SA) s 78.

Intensive Correction Order

An intensive correction order can be made in circumstances where:

  • the court has imposed a sentence of imprisonment of a term that is two years or less; and
  • the court considers that the sentence should not be suspended under a bond; and
  • there is a need to provide the defendant with a suitable, community based intervention program for rehabilitation purposes instead of ordering them to serve their sentence in prison.

See Sentencing Act 2017 (SA) s 79(1).

Like home detention orders, intensive correction orders are issued where the court determines it is not appropriate to suspend the sentence under a bond [Sentencing Act 2017 (SA) s 81(1)(b)]. An intensive correction order is intended to provide the court with an alternative sentencing option where the court considers there is a genuine risk the defendant will re-offend if not provided with a suitable intervention program for rehabilitation purposes [s 79(1)(b)].

In issuing an intensive correction order, the court must be satisfied that the rehabilitation of the defendant is more likely to be achieved by allowing the defendant to serve the sentence in the community while subject to strict conditions, rather than in prison [Sentencing Act 2017 (SA) s 79(2)].

The paramount consideration of a court when issuing an intensive correction order must be to protect the safety of the community, in line with the primary sentencing purpose [Sentencing Act 2017 (SA) ss 3 and 79(3)]. The court is also required to consider the impact the order may have on the victim of the offence, the spouse or domestic partner of the defendant, and any person residing at a residence where the defendant may be released to [s 81(4)].

Intensive correction orders cannot be made in relation to offences where a reduction, mitigation, or substitution of penalty is expressly prohibited [s 80(1)(b)]. This would include where a serious firearms offender is being sentenced for a serious firearms offence [see ss 25, s 51(1)(c), and s 80(1)(b)].

Section 82 of the Sentencing Act 2017 (SA) sets out the conditions of an intensive correction order, including:

  • that the person be of good behaviour [s 82(1)(a)];
  • that the person be under the supervision of a community corrections officer [s 82(1)(b)];
  • that the person is prohibited from possessing a firearm [s 82(1)(e)];
  • that the person undergo physical or mental assessment or treatment (or both) [s 82(1)(g)];
  • if the person is unemployed - that they perform a specific number of hours of community service [s 82(1)(j)].

Further, the court can impose such other conditions as it thinks appropriate which can include conditions that:

  • the defendant reside at a specified premises [s 82(2)(a)];
  • the defendant abstain from drugs or alcohol [s 82(2)(c)];
  • the defendant undertake an intervention program [s 82(2)(d)];
  • the defendant submit to drugs tests, including testing without notice [s 82(2)(e)];
  • the defendant be monitored by the use of an electronic monitoring device for a period not exceeding 28 days [s 82(3)(b)].

An intensive correction order has a maximum duration of two years [81(1)(a)] but the term imposed should reflect the proposed term of imprisonment. An intensive correction order does not contain a non-parole period. Therefore, a defendant subject to an intensive correction order will serve the entirety of their sentence subject to the order [see s 47(5)(a)(ii)].

It is an offence to contravene or fail to comply with a condition of an intensive correction order, punishable by a maximum penalty of a fine of up to $2 500 or imprisonment for 6 months [Sentencing Act 2017 (SA) s 91].

If the defendant breaches a condition of an intensive correction order, the court has the ability to:

  • revoke the order and order that the balance of the sentence be served in custody [s 83(1)];
  • vary the order including extending the term of the order up to an aggregate period of two years [s 83(2)(b)]; or
  • impose further conditions on the order [s 83(2)(c)].

If an intensive correction order is varied or revoked, the court must notify Correctional Services [s 84].

A person who is reasonably suspected of committing a breach of a condition of an intensive correction order may be apprehended, without warrant, by a police officer or community corrections officer and detained pending proceedings relating to the alleged breach [see Sentencing Act 2017 (SA) ss 83 and 90].

Community service orders

A community service order is available as a penalty in a number of circumstances:

  • as a primary penalty for an offence; or
  • as a condition of an intensive correction order; or
  • as a condition of a bond; or
  • as ordered by the court on application of the Fines Enforcement and Recovery Unit, where a defendant has been unable to pay a fine or other pecuniary debt.

Community service can also be undertaken in certain circumstances pursuant to a voluntary agreement between a debtor and the Fines Enforcement and Recovery Unit to offset an outstanding debt (either from an outstanding expiation notice or pecuniary sum) [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15, and 20]. As this is a voluntary agreement, no court order is required

An order for community service must not exceed a total of 300 hours, with a minimum requirement of 15 hours [Sentencing Act 2017 (SA) s 105(1)(a)]. However, where community service is ordered following an application by the Fines Enforcement and Recovery Unit for failure to pay a fine, there is no limit on the number hours that can be ordered - see Fines Enforcement and Debt Recovery Act 2017 (SA) s 46(7)]. There must be a time specified within which the community service work is to be completed, and this cannot exceed 18 months [Sentencing Act 2017 (SA) s 105(1)(c)]. Section 105 of the Sentencing Act 2017 (SA) does not apply to the performance of community service work by youths - see instead Young Offenders Act 1993 (SA) s 49A.

Usually community service is arranged through Correctional Services, and a person subject to a community service order will have a community corrections officer assigned to them [Sentencing Act 2017 (SA) s 107(1)]. If a person fails to obey a direction given to them by a community corrections officer, the Minister for Correctional Services can increase the number of hours of service that the person is required to perform, by not more than 24 aggregate hours [see ss 89(1) and 112(1)]. This can occur without commencing court proceedings for a breach of the community service order, although an application for a breach of the order can still be made [see ss 112 and 113].

Community service orders can be varied or revoked by the court and the time to complete the service may be extended by up to six months by either the court of the Minister for Correctional Services [s 110].

The Minister for Correctional Services can also cancel unperformed hours of community service [s 111]. There must be substantial compliance with the original requirement, together with no apparent intention to deliberately evade the obligations under the order and a sufficient reason for not insisting on the performance of those hours. The Minister cannot waive performance of more than ten hours under one bond or order.

If a person fails to complete the ordered community service work within the time specified, an application to breach them may be made in court. Non-performance of community service work is enforceable by imprisonment, with every 7.5 hours not completed equalling one day in prison, or six months, whichever is the lesser [s 115(2)]. If the failure to comply with the order was trivial or there are proper grounds to do so, the court may instead give the person more time to complete the service or may cancel some or all of the remaining hours [s 115(7)]. If the person has the ability to pay a fine, the court may order that instead [s 115(8)].

Good behaviour bonds

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 [Sentencing Act 2017 (SA) ss 96 and 97].

A good behaviour bond can be ordered:

  • where a court has imposed a sentence of imprisonment, which is suspended on the condition that the defendant enter into a good behaviour bond [s 96(1)]; or
  • where a court has discharged the defendant (with or without recording a conviction) without further penalty, on the condition that the defendant enter into a good behaviour bond [s 97(1)].

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 100].

A court may impose conditions that it thinks fit within the bond including, but not limited to:

  • being under the supervision of a community corrections officer;
  • undergoing medical, psychological or psychiatric treatment;
  • living at a particular address or not to live at a particular address;
  • performing community service work;
  • abstaining from drugs or alcohol;
  • paying an amount of compensation;
  • undertaking an intervention program; etc.

See Sentencing Act 2017 (SA) s 98.

If the bond contains a requirement to perform community service work, the conditions and provisions relating to that work are the same that apply for any community service order - see Community Service Orders.

The Court has power to vary or discharge a bond. The application is made either by the probationer (the person subject to the bond) or the Minister for Correctional Services [see s 103].

The Minister may also waive the obligations of probationers to comply with any conditions requiring supervision if the Minister is satisfied that it is no longer necessary for there to be supervision and it is not in the best interest of the probationer to remain under supervision [see s 103(5)].

The Court may also discharge the bond by order [see s 103(8)].

When a person does not comply with a condition of a bond, then there can be enforcement proceedings lodged against them [see s 113]. Usually this occurs when someone commits a further offence, has not completed community service work or has not complied with supervision by a community corrections officer.

When this occurs the Court can:

  • 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 Sentencing Act 2017 (SA) s 114.

Suspended sentences

Where a court thinks that an offence is serious enough to impose imprisonment but there is good reason to suspend the sentence, it may do so on the condition that the person enters into a bond [see Sentencing Act 2017 (SA) s 96]. A sentence may be suspended because of factors relating to the defendant (such as age, ill health, or previous good character) which suggest the defendant should not immediately be imprisoned.

However, a court may not suspend:

  • 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) [see ss 96(3)(a) and 96(4)]; or
  • more than four-fifths of the sentence if the person is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence (manslaughter or cause serious harm) [see ss 96(3)(b) and 96(4)].

Also, unless exceptional circumstances exist (in which case certain limitations apply), a court may not suspend the sentence if the person is being sentenced as an adult for:

  • a serious and organised crime offence or specified offence against police; or
  • 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 Sentencing Act 2017 (SA) ss 96(3)(c), 96(3)(d), 96(6).

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;
  • kidnapping;
  • rape, compelled sexual manipulation, unlawful sexual intercourse, gross indecency, persistent sexual exploitation of a child, indecent assault, abduction;
  • robbery;
  • 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 96], 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 96(2)].

A defendant may also be directed to surrender any firearms, part of firearms or ammunition [s 101(1)] or be required to meet a number of other additional conditions, see Good behaviour bonds. If the bond is not breached, the defendant does not have to serve the sentence of imprisonment. However, if the bond is breached (for example where the defendant commits a further offence during the period of the bond) the defendant may be ordered to serve the suspended sentence [see s 114]. If the Court is satisfied that the breach is trivial, or that there are proper grounds upon which it should be excused, the Court can refrain from revoking the suspension and extend the bond, extend the time to do any community service, or otherwise revoke or vary conditions of the bond [see further s 114(3)].

If a person on probation under a suspended sentence bond complies with the bond, then, once the bond term is over, then the sentence is also completed (they can not then be sent to gaol, as they have served their sentence by complying with the bond) [s 96(8)].

No conviction imposed

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:

  • character;
  • social background;
  • age;
  • health;
  • 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, the court may, without imposing a conviction, make an order to either dismiss the charge, impose a fine or discharge the defendant on a good behaviour bond [Sentencing Act 2017 (SA) s 25].

Section 25 applications are usually argued for minor first offences.

However, when the court imposes no conviction, both the police and the court still keep a record of the person's appearance in court and the offence they have committed and this record can be brought up in court should the person re-offend, or apply for a police clearance certificate, see Effects of Criminal Convictions.

Fines

The Act creating the offence usually sets out whether a fine can be imposed and the maximum fine payable. If it does not a fine may still be imposed, as long as there is good reason to do so [Sentencing Act 2017 (SA) s 25].

The court is obliged to consider the defendant's means and ability to pay in fixing the amount of the fine, and should not order a fine which would cause hardship to any dependants [Sentencing Act 2017 (SA) s 120; and Fry v Bassett (1986) 44 SASR 90].

The court is not to fix the time or the manner for payment of a pecuniary sum [Sentencing Act 2017 (SA) s 122; for those powers see Part 3 Division 2 of the Fines Enforcement and Debt Recovery Act 2017 (SA)].

The court also has the power to reduce a penalty below the minimum stated by the relevant Act where good reason exists to do so [Sentencing Act 2017 (SA) s 25]. Note however that this section does not allow the court to impose less than the mandatory minimum disqualification of licence, for example, in drink driving matters. See Alcohol, Drugs and Driving for more information.

Court costs

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 2018 (SA)]:

TYPE OF OFFENCE Levy
Expiated offence $60
Summary offence — Adult Court

— Youth Court
$160

$100
Indictable offence — Adult Court

— Youth Court
$260

$180

Note that for some offences (such as robbery or serious criminal trespass) the levy is twice the amount that would otherwise be payable [see Schedule 1 Victims of Crime (Fund and Levy) Regulations 2018 (SA)].

The court may, at the time of convicting or sentencing a person under the age of 18, exonerate them from liability to pay the levy [Victims of Crime Act 2001 (SA) s 32(3a)]. However, in the case of adult offenders, the court may not reduce the levy or exonerate the defendant from liability to pay it [s 32(7)].

Other costs

A defendant who pleads or is found guilty of an offence may be ordered to pay other costs in some cases. For example a person pleading guilty to a charge of making a false report to the police may be ordered to pay the costs of any investigations carried out in response to the false complaint. Alternatively, if there has been some damage that occurred due to the offence or during the course of an offence, for example a door broken to gain entry into a house, then the cost of repairing this damage may also be awarded. This does not cover all potential costs or claims involved, see Victims of Crime Compensation for more information.

Additional costs after trial

If however, the defendant has been found guilty after trial then additional court fees, prosecution fees plus witness fees may be payable. After a trial in the Magistrates Court, the magistrate usually awards costs against the party who lost the trial, either against a defendant or the police. This does not always happen and is at the discretion of the court. There is a schedule of costs published in the 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.

Compensation and restitution of property

Compensation

The court must not make an order requiring a defendant to pay compensation if satisfied that the defendant does not have the means to pay it or such an order would unduly prejudice the welfare of his/her dependants (except for the Victims of Crime Levy) [Sentencing Act 2017 (SA) s 120(1)].

The court should give priority to compensation over fines where both are ordered, or both can be ordered [s 121].

Compensation ordered to be paid should be paid to the court that ordered the payment, which will then forward it to the person to be compensated.

As an mount of compensation is considered a pecuniary debt, in the event that compensation is ordered and not paid by the defendant, the Fines Enforcement and Recovery Unit may commence enforcement proceedings against the defendant in relation to the debt - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7 regarding enforcement action.

Restitution of Property

If a defendant is found guilty of an offence that involves the misappropriation of property, the court can order the defendant (or any person in possession of the property) to restore it to its rightful owner [Sentencing Act 2017 (SA) s 123]. In the event such an order is not complied with, the person affected can request that a sheriff either seize the property (possibly with the assistance of the Police) or value the property and order the defendant pay that amount [s 126(2)].

Victims of Crime Compensation

A victim of crime may also be able to make a claim for personal injury through the Criminal Injuries Compensation Fund, see Victims of Crime Compensation.

The Victims of Crime Act 2001 (SA) deals with the treatment of victims of crime in the criminal justice system and provides limited rights to statutory compensation for injury suffered as a result of the commission of criminal offences. Under this act the courts have certain powers to order compensation for loss suffered. A court may order a defendant to pay compensation to a person for injury or loss sustained by that person through the crime. Any such award of payment under this Act is independent of the sentencing process.

Forfeiture orders

Where persons are convicted of certain criminal offences courts have certain powers in relation to the forfeiture of goods used in connection with the offence or which the defendant may use to profit by the offence [See for example forfeiture of weapons etc under the Summary Offences Act 1953 (SA) s 21M, and in relation to instruments for gaming s 16(2)]

Illegal drugs and equipment or devices that are the subject of the offence may be forfeited pursuant to section 52E of the Controlled Substance Act 1984 (SA).

The Criminal Assets Confiscation Act 2005 (SA) allows the Director of Public Prosecutions to take proceedings to recover the profits of crime with the proceeds going to the Victims of Crime Fund.

The Criminal Assets Confiscation Act 2005 (SA) also allows for all the property, except for excluded or protected property, of a prescribed drug offender to be automatically forfeited to the Crown upon conviction [see s 56A]. The property that can be forfeited in these circumstances does not necessarily have to have been acquired through the commission of an offence. See: Confiscation of Assets or Profits. Any proceeds garnished from the forfeited property of a prescribed drug offender are paid into the Justice Rehabilitation Fund, which operates separately from the Victims of Crime Fund and was established to fund rehabilitation and crime prevention programs.

Intervention orders

A court may, on finding a person guilty or sentencing them, issue an intervention order as if a complaint or application had been made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [Sentencing Act 2017 (SA) s 28]. Although the order is issued at the sentencing stage it is not a sentence for the purposes of the Act [s 28(4)(b)].

Before issuing any such order the court must consider whether it would be counterproductive. For example, if issuing the order would reveal the whereabouts of the person it is intended to benefit to the defendant when they otherwise would not have had this information.

Where a person is found guilty of a sexual offence such as rape, sexual exploitation of a person with a cognitive impairment, indecent assault, or any offence involving sexual exploitation or abuse of a child, the court must consider whether an intervention order should be issued [s 28(5)]. If a decision is made not to issue an order reasons must be given. The decision not to issue an order is subject to appeal in the same way that any order made by the court on sentence would be.

Licence disqualification

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.

Fine Enforcement

A person who owes court fines is treated in a similar way to an ordinary debtor. The Fines Enforcement and Recovery Unit manages the collection of fines and court costs. The Chief Recovery Officer of that Unit has various enforcement powers in relation to these types of debts. The Unit can recover and take enforcement action against debtors in relation to pecuniary debts (court issued fines, compensation, victim of crime levies, etc) and expiation notices (fines).

In order to avoid additional costs associated with late payment of fines and court debts you must either:

  • Pay in full by the due date; or
  • Negotiate payment by instalments (or reach another payment agreement) 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 ($19.10 *) [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15].

If you fail to pay a court fine within 28 days of the date it was imposed by the court, a fee of $99 * will be added to the amount owing.

If you fail to pay the court fine within a further 30 days of it becoming due, an additional fee of $180 * will be added to the amount owing (in addition to the $99 that would have already been added).

A reminder notice will be issued after 28 days has passed of the court fine becoming due. A fee of $53.20 * applies for the issuing of the reminder notice, and this amount is added onto the total amount owing.

See Fines Enforcement and Debt Recovery Regulations 2018 (SA) regulation 6 and Schedule 2 (3).

*Fees current as of 30 April 2018.

In addition to an extension of time or payment by instalments there are other arrangements available under the Fines Enforcement and Debt Recovery Act 2017 (SA) section 15(5) 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 Chief 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) the performance of community service;
  • (g) attendance at a treatment program;
  • (h) any other form of arrangement agreed by the Chief Recovery Officer and the debtor

A fee is payable to enter into one of these arrangements and is usually required to be paid before entering into the arrangement. However, the fee can also be added to the debt owed, or can in some circumstances be waived [see ss 15(2) and 15(3)].

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 Chief Recovery Officer may refuse to make arrangements to pay by instalments or other alternative methods of repayment [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(8)]. When you cannot make an arrangement with the Chief Recovery Officer, or in cases of non compliance with an existing arrangement, the Chief Recovery Officer has wide ranging powers to enforce the debt, including:

  • seizure and sale of assets [s 36];
  • garnishing of wages or bank accounts [s 37];
  • suspension of driver’s licence [s 38];
  • 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 39];
  • clamping or impounding of motor vehicle [s 41];
  • dispose of vehicle seized under s 41 if uncollected [s 42];
  • seizure of number plates of motor vehicle [s 43];
  • publication of names of debtors subject to enforcement action [s 44].

The Chief Recovery Officer also has the ability to seek orders requiring you to undertake community service [s 46(1)(a)] or requiring the participation in a treatment program [s 46(1)(b)], where the above enforcement options are unsuccessful or inappropriate.

Where the Chief Recovery Officer has seized the number plates of a motor vehicle as part of an enforcement process, the number plates are forwarded to the Registrar of Motor Vehicles who can subsequently cancel the vehicle registration [see s 61A of the Motor Vehicles Act 1959 (SA)].

Community Service Orders

A debtor can either undertake community service through an agreed arrangement with the Fines Enforcement and Recovery Unit in relation to offsetting a debt, or pursuant to a court order issued as part of enforcement proceedings for a debt.

Community Service as an agreement with the Fines Enforcement and Recovery Unit

Community service agreements will only be made at the pre-enforcement stage (i.e. by agreement with the Chief Recovery Officer) where the Chief Recovery Officer is satisfied that the debtor does not have, and it not likely to have within a reasonable amount of time, the means of paying the debt without them or their dependants suffering hardship [Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(6)].

The number of hours of community service to be completed by the debtor equates to 7.5 hours for every $200 owing [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(12); Fines Enforcement and Debt Recovery Regulations 2018 (SA) reg 8(1)(a)].

If, at any time, the Chief Recovery Officer is satisfied that a debtor subject to a community service agreement has the means to pay the fine without them or their dependants suffering hardship, they may terminate the agreement by notice in writing to the debtor [see Fines Enforcement and Debt Recovery Act 2017 (SA) s 15(10)].

At the pre-enforcement stage, the Chief Recovery Officer has ability to enter into, vary and revoke a community service agreement without any need to apply to the court.

If a debtor enters into an agreement with the Chief Recovery Officer to undertake community service, and then fails to complete that period of community service, the Chief Recovery Officer has wide powers to enforce the debt [see Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. See also: Fine Enforcement.

An agreement between a debtor and the Chief Recovery Officer should not be confused with an order to complete a period of community service as ordered by the Magistrates Court [see section 46 of the Fines Enforcement and Debt Recovery Act 2017 (SA)]. A failure to complete a court-ordered period of community service may result in a period of imprisonment being imposed - see Community Service as an Enforcement Action below.

Community Service as an Enforcement Action

In certain circumstances the Chief Recovery Officer may apply to the Magistrates Court for an order for community service. The Chief Recovery Officer can make such an application where:

  • enforcement action in relation to a debt has failed; or
  • other enforcement options are unavailable or inappropriate; or
  • the debtor does not have the means to satisfy a monetary amount owed without them or their dependants suffering hardship [see s 46].

The court can order that community service be performed where it is satisfied that the debtor does not have, and is not likely to have in a reasonable amount of time, the means to satisfy the amount owing without them or their dependants suffering hardship [s 46(1)].The amount of community service the court can order should equate to 7.5 hours for each prescribed unit of monetary amount owing [s 46(3)]. If a court ordered community service order is made, the debtor cannot leave the State without the permission of the court [see s 46(3)(b)].

If a debtor does not comply with a court-ordered community service order, then a term of imprisonment can be imposed in default of compliance. Such a term will be calculated on the basis of 1 days imprisonment for each 7.5 hours of community service remaining to be performed, or 12 months, whichever is less [s 47(2)].

Treatment programs

Where a person has incurred a pecuniary debt (by virtue of a court ordered fine, compensation, victim of crime levy, etc), they can participate in a treatment program in lieu of paying the debt, through either an agreement with the Fines Enforcement and Recovery Unit, or pursuant to a court order as part of an enforcement action.

Treatment program by agreement with Fines Enforcement and Recovery Unit

The Chief Recovery Officer can refer debtors to treatment programs to offset the debt they owe, where they are satisfied that the debtor cannot pay the debt without them or their dependants suffering hardship [Fines Enforcement and Debt Recovery Act 2017 (SA) ss 15(5)(g) and 15(7)]. The Chief Recovery Officer must also be satisfied that the debtor is suitable to participate in a program that is also available at an appropriate time and place [s 15(7)].

If a debtor completes or substantially completes an approved treatment program, the Chief Recovery Officer must waive payment of whole or part of the debt [s 15(13)].

If, at any time, the Chief Recovery Officer is satisfied that the debtor subject to a treatment program agreement has the means to pay the debt without them or their dependants suffering hardship, they may terminate the agreement by notice in writing to the debtor [s 15(10)].

The Chief Recovery Officer has the power to enter into, vary and revoke an agreement to participate in a treatment program without the need to apply to the court.

Treatment program as an enforcement action

Where the debtor has not complied with an agreement in relation to the debt, and other enforcement action has failed or is inappropriate, an application may be made to the court for a treatment program order [s 46].The court has the ability to make appropriate orders for the assessment of the debtor's eligibility and suitability in a treatment program [s 46(14)].

Where the debtor has complied with an order relating to a treatment program, the monetary amount owed must be reduced accordingly by the method prescribed by regulations [s 46(13)].

If a debtor does not comply with a court-ordered treatment program, then a term of imprisonment can be imposed in default of compliance [s 47]. The term of imprisonment is determined in accordance with method set out in the regulations [s 47(3)].

Persistently driving unlicensed

The Chief Recovery Officer has specific powers in relation to debtors who have incurred fines and expiation notices for driving while unlicensed [see Fines Enforcement and Debt Recovery Act 2017 (SA) ss 16 and 21].

Where a debtor:

  • has been found guilty of, or expiated on at least two occasions, an offence relating to driving unlicensed [see Motor Vehicles Act 1959 (SA) s 74]; and
  • the debt payable relates, at least in part, to an offence of driving while unlicensed; and
  • since committing the offence to which the debt relates:
    • the debtor has not committed any further offences of driving while unlicensed; and
    • has obtained a driver's licence

then the Chief Recovery Officer may, upon application of the debtor, waive all or part of the debt owing, or agree to enter into other arrangements with the debtor as contained in sections 15 and 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA).

See Fines Enforcement and Debt Recovery Act 2017 (SA) ss 16 and 21.

The Chief Recovery Officer cannot make a determination for a waiver of all or part of a debt if a similar determination has previously been made with the debtor [ss 16(2) and 21(2)].

This provision operates as an incentive for a driver, who has persistently driven unlicensed, to obtain a driver's licence which can then offset the debt they may owe for a driving unlicensed offence.

Example of an unpaid court fine

*Please note that the process may be different and amounts owing will change when dealing with an expiation notice as opposed to a court issued fine.

Court imposed Fine of $200

Fine $200 plus Prosecution costs @ $100 + Victims of Crime levy @ $160*

= to $460.00]

After 28 days, a Reminder Notice is sent ($53.50 fee)

A further amount is added to the amount you owe ($99.00) for failing to pay the fine.

Amount now due is $612.50

After 14 days, Fine Enforcement proceedings commence if fine is still unpaid.

Drivers licence will be suspended and Registrar of Motor Vehicles will cease business (eg cannot register vehicle).

Fee of $19.10 is added to the amount owing.

Amount now due is $631.60

After a further 30 days has passed since the fine originally became due, an additional fee of $180 is added to the amount owing.

Amount now due is $811.60

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.

After the summons to attend there is 28 days before a warrant for arrest and Order for Seizure and Sale of Property, fee is $133.50*

[*Sheriff’s Regulations 2005, Schedule 1 [items 2 + 4]].

Amount due is now $945.10

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.

Expiation Notices

The same procedure applies for an unpaid Police Expiation Notice or notice issued by a local government council, however, the late fees that apply may be different [see Fines Enforcement and Debt Recovery Regulations 2018 (SA)]. 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.

If both an expiation notice and reminder notice are ignored, enforcement action may be taken by the Fines Enforcement and Recovery Unit - see Fines Enforcement and Debt Recovery Act 2017 (SA) Part 7; see Expiation Notices.

Interstate warrants for unpaid fines

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 Sentencing Process  :  Last Revised: Thu Apr 19th 2018
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