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)].
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