Sentencing Act 2017 (SA)

South Australia

Sentencing Act 2017

An Act to make provision in relation to the sentencing of offenders in the criminal justice system; to repeal the Criminal Law (Sentencing) Act 1988; and for other purposes.

The Parliament of South Australia enacts as follows:

Part 1PreliminaryDivision 1Preliminary1Short title

This Act may be cited as the Sentencing Act 2017.

Division 2Sentencing purposes3Primary sentencing purpose

The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).

4Secondary sentencing purposes

(1)
The secondary purposes for sentencing a defendant for an offence are as follows:
(a)
to ensure that the defendant—
(i)
is punished for the offending behaviour; and
(ii)
is held accountable to the community for the offending behaviour;
(b)
to publicly denounce the offending behaviour;
(c)
to publicly recognise the harm done to the community and to any victim of the offending behaviour;
(d)
to deter the defendant and others in the community from committing offences;
(da)
to deter the defendant and others in the community from harming or assaulting prescribed emergency workers (within the meaning of section 20AA of the Criminal Law Consolidation Act 1935) acting in the course of official duties;
(e)
to promote the rehabilitation of the defendant.
(2)
Nothing about the order in which the secondary purposes are listed in subsection (1) implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.

Division 3Interpretation and application of Act5Interpretation

(1)
In this Act, unless the contrary intention appears—
bond means an agreement (not being a bail agreement) entered into pursuant to the sentence of a court under which the defendant undertakes to the Crown to comply with the conditions of the agreement (see Part 4 Division 2);
CE means the chief executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982;
close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis, but does not include—
(a)
the relationship between a legally married couple; or
(b)
a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
cognitive impairment includes—
(a)
a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); and
(b)
an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); and
(c)
a mental illness;
community based custodial sentence—see Part 3 Division 7;
community corrections officer means an officer or employee of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982 whose duties include the supervision of offenders in the community;
conditional release means conditional release from a training centre;
consumption of a drug includes—
(a)
injection of the drug (either by the person to whom the drug is administered or someone else); and
(b)
inhalation of the drug; and
(c)
any other means of introducing the drug into the body;
court—
(a)
means a court of criminal jurisdiction; and
(b)
in relation to the exercise of powers under this Act with respect to the variation, revocation or enforcement of an order of a court or other related matters, means the court that made the order or a court of coordinate jurisdiction;
domestic partner—a person is the domestic partner of another if the person lives with the other in a close personal relationship;
DPP means the Director of Public Prosecutions;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
home detention officer means a home detention officer appointed by the Minister for Correctional Services under Part 4 Division 6A of the Correctional Services Act 1982;
home detention condition—see section 72;
home detention order—see section 71;
injury, in relation to an offence, includes pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence;
intensive correction condition—see section 82;
intensive correction order—see section 81;
intervention program means a program that provides—
(a)
supervised treatment; or
(b)
supervised rehabilitation; or
(c)
supervised behaviour management; or
(d)
supervised access to support services; or
(e)
a combination of any 1 or more of the above,
designed to address behavioural problems (including problem gambling), substance abuse or cognitive impairment;
intervention program manager means—
(a)
for the purposes of sections 29 and 30—a person employed by the South Australian Courts Administration Authority (including a delegate of such a person) to have general oversight of intervention programs referred to in those sections and to coordinate the implementation of relevant court orders under those sections; or
(b)
for the purposes of this Act (other than sections 29 and 30)—a person employed in the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982 (including a delegate of such a person) to have general oversight of intervention programs and coordinate the implementation of relevant court orders;
Minister for Correctional Services means the Minister responsible for the administration of the Correctional Services Act 1982;
Minister for Youth Justice means the Minister responsible for the administration of the Youth Justice Administration Act 2016;
Parole Board means the Parole Board of South Australia established under the Correctional Services Act 1982;
pecuniary sum means—
(a)
a fine; or
(b)
compensation; or
(c)
costs; or
(d)
a sum payable under a bond or to a guarantee ancillary to a bond; or
(e)
any other amount payable under an order or direction of a court,
and includes a VIC levy;
primary purpose—the primary purpose for sentencing a defendant for an offence is as set out in section 3;
prisoner—a reference to a prisoner includes, where the context so requires, a reference to a person serving a sentence—
(a)
on home detention subject to a home detention order; or
(b)
in the community subject to an intensive correction order;
probationer means a defendant who has entered into a bond under Part 4;
probative court means—
(a)
in the case of a bond entered into pursuant to an order of an appellate court on an appeal against sentence—the court that imposed that sentence; or
(b)
in any other case—the court that made the order pursuant to which the defendant entered into the bond;
recreational use of a drug—consumption of a drug is to be regarded as recreational use of the drug unless—
(a)
the drug is administered against the will, or without the knowledge, of the person who consumes it; or
(b)
the consumption occurs accidentally; or
(c)
the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or
(d)
the consumption is therapeutic;
residence includes, if the defendant is an Aboriginal or Torres Strait Islander person, any place specified by the court as the person's residence;
secondary purposes—the secondary purposes for sentencing a defendant for an offence are as set out in section 4;
self-induced—see subsections (2) and (3);
sentence means—
(a)
the imposition of a penalty; or
(b)
the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)
the fixing, extending or negating of a non‑parole period; or
(d)
the making of any other order or direction affecting penalty, including the decision of a court to discharge a defendant—
(i)
without imposing a penalty; or
(ii)
without recording a conviction;
sentence of indeterminate duration means detention in custody until further order (and see Part 3 Division 5);
spouse—a person is the spouse of another if they are legally married;
therapeutic—the consumption of a drug is to be regarded as therapeutic if—
(a)
the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or
(b)
the drug—
(i)
is a drug of a kind available, without prescription, from registered pharmacists; and
(ii)
is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;
VIC levy means a levy imposed under the Victims of Crime Act 2001 or a corresponding previous law;
working day means any day other than a Saturday, Sunday or public holiday;
youth has the same meaning as in the Young Offenders Act 1993;
Youth Court means the Youth Court of South Australia.
(2)
Intoxication resulting from the recreational use of a drug is to be regarded as self‑induced.
(3)
If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self‑induced even though in part attributable to therapeutic consumption.
(4)
For the purposes of this Act—
(a)
a VIC levy imposed on a person will be taken to have been imposed by order of the court that found the person guilty of the offence that gave rise to the levy; and
(b)
a person who pleads guilty to a charge of an offence will be taken to have been found guilty of the offence unless—
(i)
the plea is subsequently withdrawn; or
(ii)
the person is adjudged incompetent to have made the plea.

6Application of Act to youths

(1)
Subject to a provision of this Act to the contrary, this Act applies in relation to the sentencing of a youth and the enforcement of a sentence against a youth.
(2)
However, in the event of conflict between a provision of this Act and a provision of the Young Offenders Act 1993 or the Youth Court Act 1993, the latter provision prevails to the extent of that conflict.
(3)
In applying a provision of this Act to a youth who is being or has been dealt with as a youth (and not as an adult)—
(a)
a reference to imprisonment is to be read as a reference to detention; and
(b)
a reference to a warrant of commitment is to be read as an order for detention; and
(c)
a reference to a prison is to be read as a reference to a training centre; and
(d)
a reference to the CE is to be read as a reference to the chief executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Youth Justice Administration Act 2016; and
(e)
a reference to a community corrections officer is to be read as a reference to a community youth justice officer under the Youth Justice Administration Act 2016; and
(f)
a reference to a bond, or to entering into a bond, is to be read as a reference to an order under section 26 of the Young Offenders Act 1993, or to becoming subject to such an order; and
(g)
a reference to a probationer is to be read as a reference to a youth the subject of such an order; and
(h)
a reference to the Minister for Correctional Services is to be read as a reference to the Minister for Youth Justice.

7Powers conferred by this Act are additional

(1)
Subject to this Act, the powers conferred on a court by this Act are in addition to, and do not derogate from, the powers conferred by another Act or law to impose a penalty on, or make an order or give a direction in relation to, a person found guilty of an offence.
(2)
Nothing in this Act affects the powers of a court to punish a person for contempt of that court.

8Court may not impose bond except under this Act

Despite any other Act or law to the contrary, a defendant may not enter into a bond except under this Act.

Part 2Sentencing purposes, principles and factorsDivision 1Purposes, principles and factors9Primary purpose to be considered

For the avoidance of doubt, the primary purpose for sentencing a defendant for an offence must be the paramount consideration when a court is determining and imposing the sentence.

10General principles of sentencing

(1)
Subject to this Act or any other Act, in determining a sentence for an offence, a court must apply (although not to the exclusion of any other relevant principle) the common law concepts reflected in the following principles:
(a)
proportionality;
(b)
parity;
(c)
totality;
(d)
the rule that a defendant may not be sentenced on the basis of having committed an offence in respect of which the defendant was not convicted.
(2)
Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a)
the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b)
it is required for the purpose of protecting the safety of the community (whether as individuals or in general).

11Individual sentencing factors

(1)
In determining a sentence for an offence, a court must take into account such of the factors as are known to the court that relate to the following matters as may be relevant:
(a)
the nature, circumstances and seriousness of the offence;
(b)
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;
(c)
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;
(ca)
whether the offence was wholly or partly motivated by hatred for, or prejudice against, a group of people to which the defendant believed the victim belonged (including, without limiting this paragraph, people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or a particular disability);
(d)
the defendant's character, general background and offending history;
(e)
the likelihood of the defendant re‑offending;
(f)
the defendant's age, and physical and mental condition (including any cognitive impairment);
(g)
the extent of the defendant's remorse for the offence, having regard in particular as to whether—
(i)
the defendant has provided evidence that the defendant has accepted responsibility for the defendant's actions; and
(ii)
the defendant has acknowledged any injury, loss or damage caused by the defendant's actions, or voluntarily made reparation for any such injury, loss or damage, or both;
(h)
the defendant's prospects of rehabilitation.
(2)
The matters referred to in subsection (1) are in addition to any other matter the court is required or permitted to take into account under this Act or any other Act or law.
(3)
The court must not have regard to any of the factors in sentencing if it would be contrary to an Act or law to do so (and the fact that any such factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence).
(4)
A court must determine the sentence for an offence without regard to—
(a)
the fact that this Act or another Act prescribes a mandatory minimum non‑parole period in respect of the offence; or
(b)
any consequences that may arise under the Child Sex Offenders Registration Act 2006; or
(c)
the good character or lack of previous convictions of the defendant if—
(i)
the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; 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.
(5)
For the purposes of subsection (1)(a), the court must only have regard to the matters personal to the defendant that the court is satisfied are causally connected with, or have materially contributed to, the commission of the offence, including (for example) the defendant's motivation in committing the offence and the degree to which the defendant participated in its commission.
(6)
If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence.
(7)
However, the fact that a defendant—
(a)
has not participated in, or has not had the opportunity to participate in, an intervention program; or
(b)
has performed badly in, or has failed to make satisfactory progress in, such a program,
is not relevant to sentence.

Division 2General sentencing provisionsSubdivision 1Procedural provisions12Determination of sentence

For the purpose of determining sentence, a court—
(a)
is not bound by the rules of evidence; and
(b)
may inform itself on matters relevant to the determination as it thinks fit; and
(c)
must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

13Prosecutor to provide particulars of victim's injury etc

(1)
Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, provide the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre‑sentence report) of—
1. (a)
  injury, loss or damage resulting from the offence; and
2. (b)
  injury, loss or damage resulting from—
  1. (i)
    any other offence that is to be taken into account specifically in the determination of sentence; or
  2. (ii)
    a course of conduct consisting of a series of criminal acts of the same or a similar character of which the offence for which sentence is to be imposed forms part.
(2)
The prosecutor may refrain from providing the court with particulars of injury, loss or damage suffered by a person if the person has expressed a wish to that effect to the prosecutor.
(3)
If the offence is not an offence in relation to which a victim impact statement may be provided in accordance with section 14, the court must still allow particulars provided under this section to include a victim impact statement unless the court determines that it would not be appropriate in the circumstances of the case (and the other provisions of this Division relating to victim impact statements apply to such a statement as if it were provided under section 14).
(4)
The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.

14Victim impact statements

(1)
A person who has suffered injury, loss or damage resulting from an indictable offence or a prescribed summary offence committed by another may provide the sentencing court with a written personal statement (a victim impact statement) about the impact of that injury, loss or damage on the person and the person's family.
(2)
Before determining sentence for the offence, the court may, if the person so requested when providing the statement—
(a)
allow the person an opportunity to read the statement aloud to the court; or
(b)
cause the statement to be read aloud to the court; or
(c)
give consideration to the statement without the statement being read aloud to the court.
(3)
If the court considers there is good reason to do so, it may, in order to assist a person who wishes to read aloud a victim impact statement to the court—
(a)
allow an audio visual record or audio record of the person reading the statement to be played to the court; or
(b)
exercise any other powers that it has with regard to a vulnerable witness.
(4)
Subject to subsection (5) (but despite any other provision of this Act), the court must, if the person so requested when providing the statement, ensure that—
(a)
the defendant; or
(b)
if the defendant is a body corporate, a director or some other representative of the body corporate satisfactory to the court,
is present when the statement is read aloud to the court.

(5)
Subsection (4) does not apply if the court is satisfied that special reasons exist which make it inappropriate for the defendant or other person to be present, or that the presence of the defendant or other person may cause a disturbance or a threat to public order and safety (however, in such a case, the court must ensure that the defendant or other person is present by means of an audio visual link or audio link, if such facilities are reasonably available to the court, or that arrangements are otherwise made for an audio visual record of the statement to be made and played to the defendant or other person).
(6)
The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.
(7)
In this section—
prescribed summary offence means—
(a)
a summary offence that results in the death of a victim or a victim suffering total incapacity; or
(b)
a summary offence (other than a summary offence of assault) that results in a victim suffering serious harm;
serious harm means—
(a)
harm that endangers a person's life; or
(b)
harm that consists of loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or
(c)
harm that consists of serious disfigurement;
total incapacity—a victim suffers total incapacity if the victim is permanently physically or mentally incapable of independent function.

15Community impact statements

(1)
Any person may make a submission to the Commissioner for Victims' Rights for the purpose of assisting the Commissioner to compile information which may be included in a statement under this section.
(2)
In proceedings to determine sentence for an offence, the prosecutor or the Commissioner for Victims' Rights may, if they think fit, provide the sentencing court with—
(a)
a written statement about the effect of the offence, or of offences of the same kind, on people living or working in the location in which the offence was committed (a neighbourhood impact statement); or
(b)
a written statement about the effect of the offence, or of offences of the same kind, on the community generally or on any particular sections of the community (a social impact statement).
(3)
Before determining sentence for the offence, the court will cause the statement to be read aloud to the court by the prosecutor, or such other person as the court thinks fit, unless the court determines that it is inappropriate or would be unduly time consuming for the statement to be so read.
(4)
The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.

16Statements to be provided in accordance with rules

(1)
A statement to be provided to a court under section 14 or 15 must comply with and be provided in accordance with rules of court.
(2)
Nothing prevents a statement to be provided to a court under section 14 or 15 from containing recommendations relating to the sentence to be determined by the court.
(3)
A copy of a statement to be provided to a court under section 14 or 15 must be made available for inspection by the defendant or the defendant's counsel in accordance with rules of court and the defendant is entitled to make submissions to the court in relation to the statement.

17Pre‑sentence reports

(1)
A court may, if of the opinion that it would assist in determining sentence, order the preparation of a pre‑sentence report on any or all of the following matters:
(a)
the physical or mental condition of the defendant;
(b)
the personal circumstances and history of the defendant;
(c)
any other matter that would assist the court in determining sentence.
(2)
However, the court should not order the preparation of a pre‑sentence report—
(a)
if the information sought by the court cannot be provided within a reasonable time; or
(b)
if the penalty to be imposed is a mandatory penalty for which no other penalty can be substituted and a non‑parole period is not in question.
(3)
A pre‑sentence report may be given orally or in writing.
(4)
A copy of every written pre‑sentence report received by a court must be provided to the prosecutor and to the defendant or the defendant's counsel.
(5)
The person by whom a pre‑sentence report is given is liable to be examined or cross‑examined on any of the matters contained in the report and, in the case of a written report, must appear before the court for that purpose if requested to do so.
(6)
If a statement of fact or opinion in a pre‑sentence report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.

18Expert evidence

(1)
If a defendant is to be sentenced for an indictable offence and expert evidence is to be presented to the court by the defendant or the defendant's counsel, written notice of intention to introduce the evidence must be given to the DPP—
(a)
at least 28 days before the date appointed for submissions on sentence; or
(b)
if the evidence does not become available to the defence until later—as soon as practicable after it becomes available to the defence.
(2)
The notice must—
(a)
set out the name and qualifications of the expert; and
(b)
describe the general nature of the evidence and what it tends to establish.
(3)
The court may, on application by a defendant, exempt the defendant from the obligation imposed by this section.
(4)
If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court.
(5)
If a defendant fails to comply with a requirement of or under this section, the evidence will not be admitted without the court's permission (but the court cannot allow the admission of evidence if the defendant fails to submit to an examination by an independent expert under subsection (4)).
(6)
If the DPP receives notice under this section of an intention to introduce expert evidence less than 28 days before the day appointed for submissions on sentence, the court may, on application by the prosecutor, adjourn the sentencing to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence.
(7)
The court should grant an application for an adjournment under subsection (6) unless there are good reasons to the contrary.
(8)
The court may, on application by the prosecution, require the defendant to provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the sentencing.

19Court to inform defendant of reasons etc for sentence

(1)
A court must, on sentencing a defendant who is present in court (whether in person or by audio visual link or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced.
(2)
Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency.
(3)
The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.

20Rectification of sentencing errors

(1)
A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)
The DPP and the defendant are both parties to proceedings under this section.

21Presence of defendant during sentencing proceedings

(1)
Subject to the exceptions set out in subsection (2), a defendant who is to be sentenced for an indictable offence must be present when the sentence is imposed and throughout all proceedings relevant to the determination of sentence.
(2)
The following exceptions apply:
1. (a)
  the defendant may, with the court's consent, be absent during the whole or part of the proceedings;
2. (b)
  if a defendant is in custody prior to sentence and facilities exist for dealing with proceedings by means of an audio visual link or audio link, the court may, if of the opinion that it is appropriate in the circumstances to do so, deal with the proceedings by audio visual link or audio link without requiring the personal attendance of the defendant;
3. (c)
  the court may exclude the defendant from the courtroom if satisfied that the exclusion is necessary in the interests of safety or for the orderly conduct of the proceedings (however, if such an exclusion is made, the court should (if practicable) make arrangements to enable the defendant to see and hear the proceedings by audio visual link).
(3)
If the defendant is a body corporate, the requirement is satisfied by the presence of a director or some other representative of the body corporate satisfactory to the court (but, in that case, either the prosecutor or the court may waive the requirement).
(4)
A court may make any order necessary to secure compliance with this section and, if necessary, issue a warrant to have the defendant (or, if the defendant is a body corporate, a director or other representative of the defendant) arrested and brought before the court.
(5)
This section—
1. (a)
  does not prevent the passing of sentence in the absence of the defendant in a case where the defendant cannot be found; and
2. (b)
  does not invalidate a sentence passed in the absence of the defendant.

22Sentencing of Aboriginal and Torres Strait Islander defendants

(1)
Before sentencing an Aboriginal or Torres Strait Islander defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal and Torres Strait Islander Justice Officer—
1. (a)
  convene a sentencing conference; and
2. (b)
  take into consideration views expressed at the conference.
(2)
Nothing in subsection (1) is to be taken to require the court to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene a sentencing conference.
(3)
A sentencing conference must comprise—
1. (a)
  the defendant and, if the defendant is a child, the defendant's parent or guardian; and
2. (b)
  the defendant's legal representative (if any); and
3. (c)
  the prosecutor; and
4. (d)
  if the victim chooses to be present at the conference—the victim and, if the victim so desires, a person of the victim's choice to provide assistance and support; and
5. (e)
  if the victim is a child—the victim's parent or guardian.
(4)
A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) 1 or more of the following:
1. (a)
  a person regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres Strait Islander elder;
2. (b)
  a person accepted by the defendant's Aboriginal or Torres Strait Islander community as a person qualified to provide cultural advice relevant to sentencing of the defendant;
3. (c)
  a member of the defendant's family;
4. (d)
  a person who has provided support or counselling to the defendant;
5. (e)
  any other person.
(5)
A person will be taken to be an Aboriginal or Torres Strait Islander person for the purposes of this section if—
1. (a)
  the person is descended from an Aboriginal or Torres Strait Islander; and
2. (b)
  the person regards themself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1 of the parents regards the child as an Aboriginal or Torres Strait Islander; and
3. (c)
  the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
(6)
In this section—

Aboriginal and Torres Strait Islander Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include—
(a)
assisting the court in sentencing Aboriginal or Torres Strait Islander persons by providing advice on Aboriginal or Torres Strait Islander society and culture; and
(b)
assisting the court to convene sentencing conferences under this section; and
(c)
assisting Aboriginal or Torres Strait Islander persons to understand court procedures and sentencing options and to comply with court orders;
family includes—
(a)
the defendant's spouse or domestic partner; and
(b)
any person to whom the defendant is related by blood; and
(c)
any person who is, or has been, a member of the defendant's household; and
(d)
any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances.

Subdivision 2General sentencing powers23Discharge without penalty

(1)
If a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose a penalty, the court may—
(a)
without recording a conviction—dismiss the charge; or
(b)
on recording a conviction—discharge the defendant without penalty.
(2)
If a court finds a person guilty of an offence and—
(a)
the defendant has spent time in custody in respect of the offence; and
(b)
the court is satisfied there is good reason not to impose any further penalty on the defendant,
the court may—
(c)
without recording a conviction—dismiss the charge; or
(d)
on recording a conviction—discharge the defendant without further penalty.
(3)
A court may exercise the powers conferred by this section despite any minimum penalty fixed by an Act or statutory instrument.

24Imposition of penalty without conviction

If a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both, and the court is of the opinion—
(a)
that the defendant is unlikely to commit such an offence again; and
(b)
that, having regard to—
(i)
the character, antecedents, age, or physical or mental condition, of the defendant; or
(ii)
the fact that the offence was trifling; or
(iii)
any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.

25Court may reduce, add or substitute certain penalties

(1)
Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence and after having regard to—
1. (a)
  the character, antecedents, age, or physical or mental condition, of the defendant; or
2. (b)
  the fact that the offence was trifling; or
3. (c)
  any other extenuating circumstances,

the court thinks that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.

(2)
Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided for the offence under the Act, the court may—
1. (a)
  impose another type of sentence for the sentence prescribed under the Act for the offence; or
2. (b)
  impose more than 1 type of sentence as the court thinks appropriate in the circumstances.
(3)
For the purposes of subsection (2)—
1. (a)
  if the Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
  1. (i)
    a sentence of imprisonment (including a community based custodial sentence or a suspended sentence); or
  2. (ii)
    a fine; or
  3. (iii)
    a sentence of community service; or
  4. (iv)
    both a fine and a sentence of community service; or
2. (b)
  if the Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
  1. (i)
    a sentence of imprisonment (including a community based custodial sentence or a suspended sentence) only; or
  2. (ii)
    a fine only; or
  3. (iii)
    a sentence of community service; or
  4. (iv)
    both a fine and a sentence of community service; or
3. (c)
  if the Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
  1. (i)
    a sentence of community service; or
  2. (ii)
    both a fine and a sentence of community service; or
4. (d)
  if the Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
(4)
In this section—

Act includes a statutory instrument;
community based custodial sentence means—
(a)
a sentence on home detention under a home detention order; or
(b)
a sentence to be served in the community while subject to intensive correction under an intensive correction order;
suspended sentence means a sentence of imprisonment that is suspended on condition that the defendant enter into a bond under Part 4 Division 2.

26Sentencing for multiple offences

(1)
If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but 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.
(2)
However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).
(2a)
If any of the offences in respect of which a single sentence is being imposed under this section—
(a)
involve different victims; or
(b)
were committed on different occasions,
the court must indicate the sentence that would have been imposed in respect of each such offence had this provision not been applied.
(3)
In this section—
prescribed designated offence has the same meaning as in section 96.

27Non‑association or place restriction orders may be issued on sentence

(1)
A court may, on sentencing a person for a prescribed offence, exercise the powers of the Magistrates Court to issue against the defendant a non‑association order or a place restriction order under the Criminal Procedure Act 1921 as if a complaint had been made under that Act against the defendant in relation to that conviction (and if the person is already subject to such an order, the court may vary or revoke that order as if an application for variation or revocation of the order had been made under that Act, regardless of whether the order was made by it or by some other court).
(2)
A non‑association order or a place restriction order issued or varied under this section on sentencing a person for a prescribed offence—
1. (a)
  has effect as such an order under the Criminal Procedure Act 1921; and
2. (b)
  is not a sentence for the purposes of this Act but may be taken into account in determining the sentence for the prescribed offence.
(3)
In this section—

prescribed offence has the same meaning as in Part 4 Division 5 of the Criminal Procedure Act 1921.

28Intervention orders may be issued on finding of guilt or sentencing

(1)
A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant a restraining order under the Criminal Procedure Act 1921 or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 as if an application had been made under the relevant Act against the defendant in relation to the matters alleged in the proceedings for the offence.
(2)
Before issuing an order under this section, the court must consider whether, if the whereabouts of the person for whose benefit the order would be issued are not known to the defendant, the issuing of the order would be counterproductive.
(3)
If a court, in accordance with this section, determines to exercise the powers of the Magistrates Court to issue a restraining order under section 99AAC of the Criminal Procedure Act 1921, section 99KA of that Act applies to proceedings relating to the restraining order as if—

1. (a)
  the court were the Magistrates Court; and
2. (b)
  the proceedings were child protection restraining order proceedings within the meaning of that section.
(4)
An order issued under this section—
1. (a)
  has effect—
  1. (i)
    as a restraining order under the Criminal Procedure Act 1921; or
  2. (ii)
    as a final intervention order issued by the court under the Intervention Orders (Prevention of Abuse) Act 2009,
as the case may require; and
1. (b)
  is not a sentence for the purposes of this Act.
(5)
A court must, on finding a person guilty of a sexual offence or on sentencing a person for a sexual offence—
1. (a)
  consider whether or not an order should be issued under this section; and
2. (b)
  if the court determines that an order should not be issued under this section—give reasons for that determination (and the determination is subject to appeal as if it were an order of the court made on sentence).
(6)
In this section—

sexual offence means—
(a)
rape; or
(b)
compelled sexual manipulation; or
(c)
indecent assault; or
(d)
any offence involving unlawful sexual intercourse or an act of gross indecency; or
(e)
incest; or
(f)
any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or
(g)
an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or
(h)
an attempt to commit, or assault with intent to commit, any of the offences referred to in a preceding paragraph.

29Deferral of sentence for rehabilitation and other purposes

(1)
A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—
1. (a)
  for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or
2. (b)
  for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or
3. (c)
  for the purpose of assessing the defendant's eligibility for participation in an intervention program; or
4. (d)
  for the purpose of allowing the defendant to participate in an intervention program; or
5. (e)
  for any other purpose the court considers appropriate in the circumstances.
(2)
As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum).
(3)
A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that—
1. (a)
  the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which the defendant's offending arose; and
2. (b)
  if the proceedings were not adjourned for such a period—
  1. (i)
    the defendant would be prevented from completing, or participating in, the intervention program; and
  2. (ii)
    the defendant's rehabilitation would be prejudiced.
(4)
In considering whether to adjourn proceedings for a period exceeding the usual maximum, a court is not bound by the rules of evidence and may (in particular) inform itself on the basis of a written or oral report from a person who may be in a position to provide relevant information.
(5)
A person who provides information to the court by way of a written or oral report is liable to be cross‑examined on any of the matters contained in the report.
(6)
If a statement of fact or opinion in a report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath.
(7)
This section does not limit any power that a court has, apart from this section, to adjourn proceedings or to grant bail in relation to any period of adjournment.

30Mental impairment

(1)
A court that finds a defendant guilty of a summary or minor indictable offence may release the defendant without conviction or penalty if satisfied—
(a)
that the defendant—
(i)
suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and
(ii)
has completed, or is participating to a satisfactory extent in, a suitable intervention program; and
(iii)
recognises that the defendant suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and
(b)
that the release of the defendant under this subsection would not involve an unacceptable risk to the safety of a particular person or the community.
(2)
A court may, at any time before a charge of a summary or minor indictable offence has been finally determined, dismiss the charge if satisfied—
(a)
that the defendant—
(i)
suffers from a mental impairment that explains and extenuates, at least to some extent, the conduct that forms the subject matter of the offence; and
(ii)
has completed, or participated to a satisfactory extent in, a suitable intervention program; and
(iii)
recognises that the defendant suffers from the mental impairment and is making a conscientious attempt to overcome behavioural problems associated with it; and
(b)
that dismissal of the charge under this subsection would not involve an unacceptable risk to the safety of a particular person or the community; and
(c)
that the court would not, if a finding of guilt were made, make an order requiring the defendant to pay compensation for injury, loss or damage resulting from the offence.
(3)
If the defendant is participating in, but has not completed, an intervention program, the court may, instead of dismissing the charge under subsection (2), release the defendant on an undertaking—
(a)
to complete the intervention program; and
(b)
to appear before the court for determination of the charge—
(i)
after the defendant has completed the intervention program; or
(ii)
if the defendant fails to complete the intervention program.
(4)
In deciding whether to exercise its powers under this section, the court—
(a)
may act on the basis of information that it considers reliable without regard to the rules of evidence; and
(b)
should, if proposing to dismiss a charge under subsection (2) or release a defendant on an undertaking under subsection (3), consider any information about the interests of possible victims that is before it (but is not obliged to inform itself on the matter).
(5)
In this section—
court means—
(a)
the Magistrates Court; or
(b)
the Youth Court; or
(c)
any other court authorised by regulation to exercise the powers conferred by this section;
mental impairment means an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia);
suitable intervention program, in respect of a defendant, means an intervention program that, in the opinion of the court, provides—
(a)
supervised treatment; or
(b)
supervised rehabilitation; or
(c)
supervised behaviour management; or
(d)
supervised access to support services; or
(e)
a combination of any 1 or more of the above,
that is suited to address the particular behavioural problems of the defendant relating to the defendant's mental impairment.

Subdivision 4Sentencing reductions36Application of Subdivision

Except where the contrary intention expressly appears, this Subdivision is in addition to, and does not derogate from, a provision of this Act or any other Act—
(a)
that expressly prohibits the reduction, mitigation or substitution of penalties or sentences; or
(b)
that limits or otherwise makes special provision in relation to the way a penalty or sentence for a particular offence under that Act may be imposed.

37Reduction of sentences for cooperation etc with law enforcement agency

(1)
A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—
1. (a)
  relates directly to combating serious and organised criminal activity; and
2. (b)
  is provided in exceptional circumstances; and
3. (c)
  contributes significantly to the public interest.
(2)
In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.
(3)
In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:
1. (a)
  if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;
2. (b)
  the nature and extent of the defendant's cooperation or undertaking;
3. (c)
  the timeliness of the cooperation or undertaking;
4. (d)
  the truthfulness, completeness and reliability of any information or evidence provided by the defendant;
5. (e)
  the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;
6. (f)
  any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;
7. (g)
  the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;
8. (h)
  whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);
9. (i)
  whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;
10. (j)
  the nature of any steps that would be likely to be necessary to protect the defendant on release from prison;
11. (k)
  the likelihood that the defendant will commit further offences,

and may have regard to any other factor or principle the court thinks relevant.

(4)
In this section—

serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.

39Reduction of sentences for guilty plea in Magistrates Court etc

(1)
This section applies—
1. (a)
  if the offence is a summary offence; or
2. (b)
  if the sentencing court is sentencing in relation to a minor indictable offence that has been tried in the same way as a summary offence; or
3. (c)
  in any other circumstances prescribed by the regulations.
(2)
Subject to this section, if a defendant has pleaded guilty to an offence or offences—
1. (a)
  not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
2. (b)
  more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but—
  1. (i)
    if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or
  2. (ii)
    in any other case—before the commencement of the trial for the offence or offences,
the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
1. (c)
  less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that the defendant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
2. (d)
  in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3)
If—
1. (a)
  a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
2. (b)
  the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
  1. (i)
    the court did not sit during that period; or
  2. (ii)
    the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
  3. (iii)
    the court did not list the defendant's matter for hearing during that period; or
  4. (iv)
    the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or
  5. (v)
    the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

(3a)
Without limiting subsection (3), if—
1. (a)
  the maximum reduction available under subsection (2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the period specified in that subsection (the designated period); and
2. (b)
  the defendant pleads guilty no more than 14 days after the expiration of the designated period; and
3. (c)
  the court is satisfied that the defendant was unable to obtain legal advice within the designated period as a result of—
  1. (i)
    the defendant residing in a remote location; or
  2. (ii)
    the defendant leading an itinerant lifestyle; or
  3. (iii)
    communication difficulties arising from the defendant being unable to speak reasonably fluent English,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the designated period.

(4)
In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
1. (a)
  whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
2. (b)
  the stage in the proceedings for the offence at which the defendant first indicated the defendant's intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
3. (c)
  whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
4. (d)
  in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
5. (e)
  whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings;
6. (f)
  whether at any stage in the proceedings for the offence—
  1. (i)
    the defendant disputed the factual basis of the plea; and
  2. (ii)
    a hearing occurred in relation to the dispute; and
  3. (iii)
    the dispute was not resolved in favour of the defendant;
7. (g)
  if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted;
8. (h)
  whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice;
9. (i)
  whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice,

and may have regard to any other factor or principle the court thinks relevant.

(5)
For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.

40Reduction of sentences for guilty pleas in other cases

(1)
This section applies to a court sentencing a defendant for an offence other than an offence described in section 39(1).
(2)
If—
1. (a)
  a defendant in any proceedings is pleading guilty to more than 1 offence; and
2. (b)
  this section applies to at least 1 of the offences,

this section will be taken to apply to all of the offences (despite section 39(1)).

(3)
Subject to this section, if a defendant has pleaded guilty to an offence or offences—
1. (a)
  not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
  1. (i)
    in the case of a serious indictable offence—up to 25%; or
  2. (ii)
    in any other case—up to 35%; or
2. (b)
  more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
  1. (i)
    in the case of a serious indictable offence—up to 15%; or
  2. (ii)
    in any other case—up to 25%; or
3. (c)
  during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
  1. (i)
    in the case of a serious indictable offence—up to 10%; or
  2. (ii)
    in any other case—up to 15%; or
  Note—
  See also section 110(3) of the Criminal Procedure Act 1921.
4. (d)
  during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by—
  1. (i)
    in the case of a serious indictable offence—up to 5%; or
  2. (ii)
    in any other case—up to 10%; or
5. (e)
  during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%.
(4)
If—
1. (a)
  a maximum reduction available under subsection (3) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and
2. (b)
  the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
  1. (i)
    the court did not sit during that period; or
  2. (ii)
    the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
  3. (iii)
    the court did not list the defendant's matter for hearing during that period; or
  4. (iv)
    the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or
  5. (v)
    after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

(4a)
Without limiting subsection (4), if—
1. (a)
  the maximum reduction available under subsection (3)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the period specified in that subsection (the designated period); and
2. (b)
  the defendant pleads guilty no more than 14 days after the expiration of the designated period; and
3. (c)
  the court is satisfied that the defendant was unable to obtain legal advice within the designated period as a result of—
  1. (i)
    the defendant residing in a remote location; or
  2. (ii)
    the defendant leading an itinerant lifestyle; or
  3. (iii)
    communication difficulties arising from the defendant being unable to speak reasonably fluent English,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the designated period.

(5)
In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
1. (a)
  whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
2. (b)
  the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
3. (c)
  whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
4. (d)
  in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
5. (e)
  if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact;
6. (f)
  whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings;
7. (g)
  whether at any stage in the proceedings for the offence—
  1. (i)
    the defendant disputed the factual basis of the plea; and
  2. (ii)
    a hearing occurred in relation to the dispute; and
  3. (iii)
    the dispute was not resolved in favour of the defendant;
8. (h)
  if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted;
9. (i)
  whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice;
10. (j)
  whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice,

and may have regard to any other factor or principle the court thinks relevant.

(6)
For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.
(7)
Where proceedings have been instituted in a superior court by the DPP laying an information ex officio in accordance with section 103 of the Criminal Procedure Act 1921, this section applies in relation to those proceedings with the modifications prescribed by the regulations.
(8)
In this section—

committal appearance has the same meaning as in section 109 of the Criminal Procedure Act 1921;
serious harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935;
serious indictable offence means an offence that is—
(a)
a serious offence of violence for which the maximum penalty prescribed is, or includes, imprisonment for at least 5 years; or
(b)
a serious sexual offence for which the maximum penalty prescribed is, or includes, imprisonment for at least 5 years; or
(c)
any other offence prescribed by the regulations for the purposes of this definition;
serious offence of violence means—
(a)
an offence under section 11, 13, 13A, 19A(1), 19AB(1), 23, 29(1), 29(2), 29A(1) or 31(1) of the Criminal Law Consolidation Act 1935; or
(b)
an offence under section 14 of the Criminal Law Consolidation Act 1935 where the victim died or suffered serious harm; or
(c)
an offence under section 19A(3) or 19AB(2) of the Criminal Law Consolidation Act 1935 where serious harm was caused to a person; or
(d)
an offence under a corresponding previous enactment substantially similar to an offence referred to in any of the preceding paragraphs; or
(e)
an attempt to commit or an assault with intent to commit any of the offences referred to in any of the preceding paragraphs;
serious sexual offence means—
(a)
an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63AA, 63A, 63AAB, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935; or
(b)
an offence under a corresponding previous enactment substantially similar to an offence referred to in the preceding paragraph; or
(c)
an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding paragraphs.

41Application of sentencing reductions

(1)
For the purpose of applying section 37, 38, 39 or 40 in sentencing a defendant for a particular offence, the sentencing court must—
(a)
first determine the sentence that the court would apply but for the existence of those provisions; and
(b)
then determine the maximum percentage reduction that is applicable to the sentencing in accordance with those provisions; and
(c)
then determine the percentage reduction that is, in the opinion of the court, appropriate in the particular case (being not more than the maximum percentage determined in accordance with paragraph (b)); and
(d)
finally, apply the percentage reduction determined in accordance with paragraph (c) to the sentence determined in accordance with paragraph (a).
(2)
A sentencing court that wants to apply section 26 to sentence a defendant to a single penalty for more than 1 offence must, if the court would otherwise be required to apply section 37, 38, 39 or 40 in sentencing the defendant for any 1 or more of those offences (the discounted offences), determine, in accordance with subsection (1), the appropriate sentence for each discounted offence before applying section 26 to determine the total sentence (and for the purposes of section 26, a reference to the maximum penalty that could be imposed in respect of an offence will, in the case of each discounted offence, be a reference to the sentence determined, in accordance with subsection (1), for that discounted offence).
(3)
Nothing in this Subdivision affects the operation of section 23, 24 or 25.

42Re‑sentencing for failure to cooperate in accordance with undertaking under section 37

(1)
This section applies if—
1. (a)
  a person is currently serving a sentence of imprisonment for an offence or offences that was reduced by the sentencing court under section 37 (the relevant sentence); and
2. (b)
  the person has failed to cooperate with a law enforcement agency in accordance with the terms of an undertaking given by the person under that section.
(2)
The DPP may, with the permission of the court that imposed the relevant sentence on the person, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's failure to cooperate with the law enforcement agency in accordance with the terms of an undertaking given by the person under section 37.
(3)
The DPP, the chief officer of the law enforcement agency and the person are parties to the proceedings on the application.
(4)
Nothing in this section authorises a court to impose a new sentence that would exceed the sentence that would, but for the reduction given under section 37, have been imposed by the sentencing court under that section.

43Re‑sentencing for subsequent cooperation with law enforcement agency

(1)
This section applies to a person if—
1. (a)
  the person is currently serving a period of imprisonment for an offence or offences (the relevant sentence); and
2. (b)
  the person has cooperated with a law enforcement agency.
(2)
A person to whom this section applies may, with the permission of the court that imposed the relevant sentence, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's cooperation with the law enforcement agency in accordance with this section.
(3)
The court may only grant permission to make an application under this section if the court is satisfied that the cooperation relates directly to an offence that is, in the opinion of the court, a serious offence that has been committed or may be committed in the future (whether in this or any other jurisdiction).
(4)
The chief officer of the law enforcement agency, the DPP and the applicant are parties to the proceedings on the application.
(5)
In determining a new sentence on an application under this section, the court must have regard to such of the following as may be relevant:
1. (a)
  the nature and extent of the person's cooperation;
2. (b)
  the timeliness of the cooperation;
3. (c)
  the truthfulness, completeness and reliability of any information or evidence provided by the person;
4. (d)
  the evaluation (if any) by the authorities of the significance and usefulness of the person's cooperation;
5. (e)
  any benefit that the person has gained or is likely to gain by reason of the cooperation;
6. (f)
  the degree to which the safety of the person (or some other person) has been put at risk of violent retribution as a result of the person's cooperation;
7. (g)
  whether the cooperation concerns the offence for which the person is being sentenced or some other offence, whether related or unrelated;
8. (h)
  whether, as a consequence of the person's cooperation, the person would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;
9. (i)
  the nature of any steps that would be likely to be necessary to protect the person on release from prison;
10. (j)
  the likelihood that the person will commit further offences,

and may have regard to any other factor or principle the court thinks relevant.

(6)
Except as provided in this section, in determining a new sentence on an application under this section, the court must apply the law that was applicable in relation to the relevant sentence at the time that sentence was imposed (and this subsection applies to an application under this section, whether made or determined before or after the commencement of this subsection).
(7)
On an application by a person under this section, the court must not impose a sentence that is more severe than the relevant sentence, but the court may extend the non‑parole period where the court passes a shorter sentence.
(8)
In this section—

chief officer of a law enforcement agency means—
(a)
in the case of SA Police—the Commissioner of Police;
(b)
in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption;
(c)
in any other case—the person for the time being occupying a position within the agency prescribed by the regulations.

Part 3Custodial sentencesDivision 1Imprisonment

44Commencement of sentences and non‑parole periods

(1)
If a court imposes a sentence of imprisonment and does not suspend the sentence under Part 4 Division 2, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)
If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)
make an appropriate reduction in the term of the sentence; or
(b)
direct that the sentence will be taken to have commenced—
(i)
on the day on which the defendant was taken into custody; or
(ii)
on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
(3)
If a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence—
(a)
on the day on which the defendant is taken into custody under the warrant of commitment issued in respect of the sentence; or
(b)
if the defendant is subject to some other sentence of imprisonment—on the completion of that other sentence of imprisonment or at some earlier time fixed by the court.
(4)
If a court fixes a non‑parole period, the court must specify the date on which the non‑parole period is to commence or is to be taken to have commenced.
(5)
If a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non‑parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
(6)
If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence will—
(a)
in the case of a defendant not then in custody—commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)
in the case of a defendant already in custody for the offence—be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)
in the case of a defendant in custody for some other offence—commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively under this Act or any other Act.

45Cumulative sentences

(1)
Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative on any other sentence, or sentences, of imprisonment or detention in a training centre then being served, or to be served, by the defendant.
(2)
If a sentence of imprisonment is imposed for an offence committed by the defendant—
(a)
during a period of release on parole or conditional release; or
(b)
while serving a period of imprisonment under an order of the Parole Board for breach of parole conditions,
the sentence will (except where 1 of the sentences to which the defendant is subject is life imprisonment) be cumulative on the sentence, or sentences, in respect of which the defendant was on parole.
(3)
A direction may be given under subsection (1) irrespective of the number of cumulative sentences that the defendant is already serving or will, in consequence of the direction, be liable to serve.
(4)
This section does not apply in relation to a youth unless the youth is sentenced as an adult.

Division 2Non‑parole periods46Application of Division to youths

(1)
The following provisions of this Division do not apply in relation to a youth unless the youth is sentenced as an adult:
(a)
section 47(5)(b);
(b)
section 47(5)(d);
(c)
section 47(6);
(d)
section 48.
(2)
The remaining provisions of this Division do not apply in relation to a youth unless the youth is sentenced as an adult, or is sentenced to detention to be served in a prison, or is otherwise transferred to or ordered to serve a period of detention in a prison.
(3)
Section 47 applies in relation to a person who is serving concurrent sentences of imprisonment and detention in a prison as if the person were serving concurrent sentences of imprisonment.

47Duty of court to fix or extend non‑parole periods

(1)
Subject to this section, when a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
1. (a)
  if the person is not subject to an existing non‑parole period—fix a non‑parole period; or
2. (b)
  if the person is subject to an existing non‑parole period—review the non‑parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
3. (c)
  if the person is serving a minimum term imposed in respect of an offence under a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non‑parole period—fix a non‑parole period in respect of the sentence, or sentences, to be served on the expiry of that minimum term.
(2)
If the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non‑parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
(3)
If a prisoner is serving a sentence of imprisonment but is not subject to an existing non‑parole period, the sentencing court may, subject to subsection (5), fix a non‑parole period, on application by the prisoner or the presiding member of the Parole Board.
(4)
The fact that the prisoner has completed a non‑parole period previously fixed in respect of the same sentence of imprisonment, or that a court has previously declined to fix a non‑parole period in respect of that sentence, does not preclude an application under subsection (3).
(5)
The above provisions are subject to the following qualifications:
1. (a)
  a non‑parole period may not be fixed—
  1. (i)
    in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than 12 months; or
  2. (ii)
    in respect of a person who is liable to serve a sentence in the community while subject to an intensive correction order;
2. (b)
  if fixing a non‑parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non‑parole period prescribed in respect of the offence is 20 years;
3. (c)
  if a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non‑parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
4. (d)
  if fixing a non‑parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non‑parole period prescribed in respect of the offence is four‑fifths the length of the sentence;
5. (e)
  a court may, by order, decline to fix a non‑parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
  1. (i)
    the gravity of the offence or the circumstances surrounding the offence; or
  2. (ii)
    the criminal record of the person; or
  3. (iii)
    the behaviour of the person during any previous period of release on parole or conditional release; or
  4. (iv)
    any other circumstance.
(6)
If—
1. (a)
  a court sentences a person under section 26 to the 1 penalty for a number of offences; and
2. (b)
  a mandatory minimum non‑parole period is prescribed (mandatory period) in respect of any of those offences,

any non‑parole period to be fixed by the court under that section—
(c)
must be a period not less than the mandatory period prescribed in respect of the relevant offence; and

(b)
where the youth has previously served a sentence of imprisonment or detention in a prison, the court may direct that the youth serve the detention in a prison,
and the Correctional Services Act 1982 applies to and in relation to a youth serving detention in a prison under this section.

Part 5Financial penalties119Maximum fine if no other maximum provided

If a fine is imposed in respect of an offence for which an Act or statutory instrument does not prescribe a fine, the fine may not exceed—
(a)
if the Supreme Court imposes the fine—$75 000; and
(b)
if the District Court imposes the fine—$35 000; and
(c)
if the Magistrates Court imposes the fine—$10 000.

120Order for payment of pecuniary sum not to be made in certain circumstances

(1)
The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
1. (a)
  the defendant would be unable to comply with the order; or
2. (b)
  compliance with the order would unduly prejudice the welfare of dependants of the defendant,

(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).

(2)
Subject to subsection (3), the court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)
In considering whether the defendant would be able to comply with the order, the court should have regard to any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.

121Preference must be given to compensation for victims

If a court considers—
(a)
that it is appropriate—
(i)
to make an order for compensation (under this Act or any other Act); and
(ii)
to impose a fine or make any other order for the payment of a pecuniary sum; but
(b)
that the defendant has insufficient means to pay both the compensation and the fine or other pecuniary sum,
the court must give preference to compensation.

122Court not to fix time for payment of pecuniary sums

(1)
If a court makes an order requiring a defendant to pay a pecuniary sum, the court is not empowered to make any order relating to the time or manner in which the sum is to be paid.
(2)
Subsection (1) does not derogate from an order of a court or an officer of a court that was in force immediately before this section came into operation.

Part 6Restitution and compensationDivision 1Restitution and compensation generally123Restitution of property

(1)
If the offence of which the defendant has been found guilty, or any other offence that is to be taken into account by the court in determining sentence, involves the misappropriation of property, the court may order the defendant, or any other person in possession of the property, to restore the property to a person who appears to be entitled to possession of the property.
(2)
An order under subsection (1) does not prejudice a person's title to the property.

124Compensation

(1)
Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.
(2)
An order for compensation may be made under this section—
(a)
either on application by the prosecutor or on the court's own initiative; and
(b)
instead of, or in addition to, dealing with the defendant in any other way.
(3)
If—
(a)
a court finds a defendant guilty of an offence, or takes an offence into account in determining sentence; and
(b)
the circumstances of the offence are such as to suggest that a right to compensation has arisen, or may have arisen, under this section,
the court must, if it does not make an order for compensation, give its reasons for not doing so.
(4)
Compensation under this section will be of such amount as the court considers appropriate having regard to any evidence before the court and to any representations made by or on behalf of the prosecutor or the defendant.
(5)
If property of which a person was dispossessed as a result of the offence is recovered, any damage to the property while it was out of the person's possession is to be treated for the purposes of this section as having resulted from the offence.
(6)
The power of a court to award compensation under this section is subject to the following qualifications:
(a)
no compensation may be awarded for injury, loss or damage caused by, or arising out of the use of, a motor vehicle except damage to property;
(b)
no compensation may be awarded against an employer in favour of an employee or former employee if—
(i)
the offence arises from breach of a statutory duty related to employment; and
(ii)
the injury, loss or damage is compensable under the Return to Work Act 2014.
(7)
Compensation may be ordered under this section in relation to an offence despite the fact that compensation may be ordered under some other statutory provision that relates more specifically to the offence or proceedings in respect of the offence.
(8)
The amount paid to a person pursuant to an order under this section for compensation for injury, loss or damage must be taken into consideration by a court or any other body in awarding compensation for that injury, loss or damage under any other Act or law.

125Certificate for victims of identity theft

(1)
A court that finds a person guilty of an offence involving—
(a)
the assumption of another person's identity; or
(b)
the use of another person's personal identification information,
may, on application by a victim of the offence, issue a certificate under subsection (2).
(2)
The certificate is to give details of—
(a)
the offence; and
(b)
the name of the victim; and
(c)
any other matters considered by the court to be relevant.
(3)
In this section—
personal identification information has the same meaning as in Part 5A of the Criminal Law Consolidation Act 1935;
victim means a person whose identity has been assumed, or personal identification information has been used, without the person's consent, in connection with the commission of the offence.

Division 2Enforcement of restitution orders

126Non‑compliance with order for restitution of property

(1)
If—
(a)
an order is made under section 123 requiring property to be restored to a person; and
(b)
the order is not complied with,
the person may request an authorised officer to take action under this section for enforcement of the order.
(2)
On receiving a request under this section in relation to an order requiring the restitution of property, an authorised officer may—
(a)
enter any land (using such force as may be necessary) on which the officer reasonably suspects the property is situated and seize and remove the property; or
(b)
cause the property to be valued (in such manner as the officer thinks fit) and make an order requiring the defendant to pay to the person an amount equal to the value of the property.
(3)
In exercising powers under subsection (2)(a), an authorised officer may be assisted by such other persons (including a member of the police force) as the officer considers necessary in the circumstances.
(4)
An authorised officer who makes an order under subsection (2)(b) must cause a copy of the order to be served on the defendant personally or by post.
(5)
An order under subsection (2)(b)—
(a)
may be made in the absence of, and without prior notice to, the defendant; and
(b)
may be varied or cancelled by an authorised officer in such circumstances as the officer considers just; and
(c)
is enforceable as a pecuniary sum.
(6)
The prescribed fees for issuing, serving and executing an order under subsection (2)(b) are payable in addition to the amount specified in the order as the value of the relevant property and form part of the amount payable under the order.
(7)
In this section—
authorised officer means the sheriff or a person authorised in writing by the sheriff for the purposes of this section;
defendant, in relation to property, means the defendant in the proceedings in which the order requiring restitution of the property was made.

Part 7Miscellaneous

127Power of delegation – intervention program manager

(1)
An intervention program manager may, by instrument in writing, delegate a power or function under this Act—
(a)
to a particular person; or
(b)
to the person for the time being occupying a particular position.
(2)
A power or function so delegated under this section may, if the instrument of delegation so provides, be further delegated.
(3)
A delegation—
(a)
may be absolute or conditional; and
(b)
does not derogate from the power of the delegator to act in a matter; and
(c)
is revocable at will.

128Regulations

(1)
The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Act.
(2)
Without limiting the generality of subsection (1), the regulations may—
(a)
prescribe forms for the purposes of this Act;
(b)
prescribe, or provide for the calculation of, costs, fees or charges for the purposes of this Act;
(c)
exempt any person or class of persons from the obligation to pay any costs, fees or charges so prescribed;
(d)
prescribe penalties, not exceeding $5 000, for breach of, or non‑compliance with, a regulation.
(3)
The regulations may—
(a)
be of general or limited application; and
(b)
make different provision according to the persons, things or circumstances to which they are expressed to apply; and
(c)
provide that a specified provision of this Act does not apply, or applies with prescribed variations, to any person, circumstance or situation (or person, circumstance or situation of a prescribed class) specified by the regulations, subject to any condition to which the regulations are expressed to be subject; and
(d)
provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, an authorised officer or another prescribed person.
(4)
The regulations may make provisions of a savings or transitional nature consequent on the commencement of any provisions of this Act (including provisions of a transitional nature modifying any provisions of this Act).

Schedule 1—Repeal and transitional provisions

Part 1—Repeal of Criminal Law (Sentencing) Act 1988

1—Repeal of Act

The Criminal Law (Sentencing) Act 1988 is repealed.

Part 2—Transitional provisions

2—Transitional provisions

(1)
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
(2)
However—
(a)
the old sentence reduction provisions of the repealed Act will continue to apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced before the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017; while
(b)
the new sentence reduction provisions of this Act will apply in relation to the sentencing of a defendant for an offence where the proceedings for that offence are commenced after the commencement of the amendments to the repealed Act to be effected by the Summary Procedure (Indictable Offences) Amendment Act 2017, regardless of when the offence was committed
(3)
In this clause—
new sentence reduction provisions means Part 2 Division 2 Subdivision 4 of this Act;
old sentence reduction provisions means sections 10A, 10B and 10C and Part 2 Division 6 of the repealed Act;
repealed Act means the Criminal Law (Sentencing) Act 1988 repealed by clause 1.
Part 3—Transitional provisions relating to Sentencing (Release on Licence) Amendment Act 2018

3—Transitional provisions

(1)
Section 58 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
(a)
an application under that section for the discharge of an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application is made after that commencement;
(b)
an application under that section for the discharge of an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application was made but not finalised before that commencement;
(c)
an application under section 23A of the repealed Act for the discharge of an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.
(2)
Section 59 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
(a)
an application under that section for the release on licence from an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application is made after that commencement;
(b)
an application under that section for the release on licence from an order for detention (whether the order for detention was made under section 57 of this Act or section 23 of the repealed Act) where the application was made but not finalised before that commencement;
(c)
an application under section 24 of the repealed Act for the release on licence from an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.
(3)
In this clause—
repealed Act means the Criminal Law (Sentencing) Act 1988.

Schedule 2—Re-consideration of authorisations to release on licence under section 24 of repealed Act or section 59 of this Act
1—Re-consideration of authorisations to release on licence under section 24 of repealed Act or section 59 of this Act
(1)
This clause applies to a person subject to an order for detention under section 23 of the repealed Act or section 57 of this Act who, before the commencement of this clause, has been authorised by the Supreme Court under section 24 of the repealed Act or section 59 of this Act (as the case may be) to be released on licence.
(2)
After the commencement of this clause, the Supreme Court may, on application by the DPP—
(a)
cancel the release on licence of a person to whom this clause applies; or
(b)
confirm the release on licence of a person to whom this clause applies.
(3)
For the purposes of proceedings under this clause, the DPP may apply to a magistrate for a warrant for the apprehension and detention of the person pending determination of the proceedings.
(4)
A magistrate must, on application under subclause (3), issue a warrant for the apprehension and detention of a person unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(5)
The release on licence of a person to whom this clause applies must not be confirmed unless the person satisfies the Supreme Court that—
(a)
the person is both capable of controlling and willing to control the person's sexual instincts; or
(b)
the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity.
(6)
The Supreme Court must, before determining an application under this clause, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(7)
The paramount consideration of the Supreme Court when determining an application under this clause must be to protect the safety of the community (whether as individuals or in general).
(8)
The Supreme Court must also take the following matters into consideration when determining an application under this clause:
(a)
the reports of the medical practitioners (as directed and nominated under subclause (6)) provided to the Court;
(b)
any relevant evidence or representations that the person may desire to put to the Court;
(c)
a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)
any opinion of the appropriate board on the effect that the release on licence of the person has had, or would have, on the safety of the community; and
(ii)
—
(A)
if the person has been released on licence—a report as to the current circumstances of the person; or
(B)
if the person has not yet been released on licence—a report as to the probable circumstances of the person if the person is so released; and
(iii)
the recommendation of the appropriate board about whether the person is suitable for release on licence;
(d)
evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e)
any other report required by the Court under section 61 of this Act;
(f)
any other matter that the Court thinks relevant.
(9)
The Supreme Court, when determining an application under this clause, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person's release on licence is cancelled or not confirmed.
(10)
A copy of any report provided to the Supreme Court under subclause (8) must be given to each party to the proceedings or to counsel for those parties.
(11)
For the purposes of this clause—
appropriate board, in relation to proceedings under this clause, means—
(a)
if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board;
(b)
in any other case—the Parole Board;
repealed Act means the Criminal Law (Sentencing) Act 1988.

Legislative history

Notes

•
Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•
Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
•
For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or Act and amendments
New entries appear in bold.
Year
No
Title
Assent
Commencement
2017
26
Sentencing Act 2017
18.7.2017
30.4.2018 (Gazette 6.2.2018 p610)
2017
67
Statutes Amendment (Youths Sentenced as Adults) Act 2017
12.12.2017
Pt 4 (s 6) & Sch 1 (cl 1)—30.4.2018 immediately after s 6 of 26/2017: s 2(2)
2018
2
Sentencing (Release on Licence) Amendment Act 2018
25.6.2018
25.6.2018
2018
32
Statutes Amendment (Drug Offences) Act 2018
22.11.2018
Pt 3 (ss 26 & 27)—1.4.2019 (Gazette 7.2.2019 p415)
2018
36
Sentencing (Miscellaneous) Amendment Act 2018
6.12.2018
28.2.2019 (Gazette 28.2.2019 p703)
2019
11
Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019
23.5.2019
Pt 2 (ss 4 to 17) & Sch 1 (cl 3)—23.5.2019 (Gazette 23.5.2019 p1351)
2019
17
Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019
1.8.2019
Sch 1 (cll 2 & 3)—3.10.2019 (Gazette 3.10.2019 p3398)
2019
21
Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2019
19.9.2019
Pt 11 (s 18)—19.9.2019: s 2(1)
2019
45
Supreme Court (Court of Appeal) Amendment Act 2019
19.12.2019
Sch 1 (cl 78)—1.1.2021 (Gazette 10.12.2020 p5638)
2020
33
Sentencing (Serious Repeat Offenders) Amendment Act 2020
1.10.2020
14.11.2020 (Gazette 12.11.2020 p5040)
2020
35
Statutes Amendment (Sentencing) Act 2020
22.10.2020
Pt 3 (ss 7 to 10)—2.11.2020 (Gazette 29.10.2020 p4927)
2020
43
Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020
10.12.2020
Pt 5 (s 12) & Sch 1 (cl 3)—29.3.2021 (Gazette 27.1.2021 p163)

2021	37	Statutes Amendment (Intervention Orders and Penalties) Act 2021	30.9.2021	Pt 3 (s 5)—4.4.2022 (Gazette 27.1.2022 p115)
2021	46	Sentencing (Hate Crimes) Amendment Act 2021	25.11.2021	25.11.2021
2021	57	Statutes Amendment (Child Sexual Abuse) Act 2021	9.12.2021	Pt 5 (ss 19 to 21)—1.6.2022 (Gazette 17.2.2022 p490)
2022	9	Statutes Amendment (Child Sex Offences) Act 2022	14.7.2022	Pt 4 (ss 19 to 21)—1.10.2022 (Gazette 23.9.2022 p6135)
2023	17	Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023	8.6.2023	Sch 1 (cl 2)—22.6.2023: s 2
2023	21	Statutes Amendment (Sexual Offences) Act 2023	21.6.2023	Pt 5 (ss 11 & 12)—1.1.2024 (Gazette 14.9.2023 p3237)

Provisions amended

New entries appear in bold.

Provision	How varied	Commencement
Pt 1
s 2	omitted under Legislation Revision and Publication Act 2002	25.6.2018
s 4
s 4(1)	amended by 17/2019 Sch 1 cl 2	3.10.2019
s 5
s 5(1)
intervention program manager	substituted by 36/2018 s 4	28.2.2019
Pt 2
Pt 2 Div 1
s 11
s 11(1)	amended by 46/2021 s 3	25.11.2021
Pt 2 Div 2
Pt 2 Div 2 Subdiv 2
s 26
s 26(2a)	inserted by 57/2021 s 19	1.6.2022
Pt 2 Div 2 Subdiv 3	deleted by 11/2019 s 4	23.5.2019
Pt 2 Div 2 Subdiv 4
s 38	deleted by 35/2020 s 7	2.11.2020
s 39
s 39(3a)	inserted by 35/2020 s 8(1)	2.11.2020
s 39(4)	amended by 35/2020 s 8(2)	2.11.2020
s 40
s 40(3)	amended by 36/2018 s 5(1), (2)	28.2.2019
substituted by 35/2020 s 9(1)	2.11.2020
s 40(4a)	inserted by 35/2020 s 9(2)	2.11.2020
s 40(5)	amended by 35/2020 s 9(3)	2.11.2020
s 40(8)
serious harm	inserted by 35/2020 s 9(4)	2.11.2020
serious indictable offence	inserted by 35/2020 s 9(4)	2.11.2020
serious offence of violence	inserted by 35/2020 s 9(4)	2.11.2020
serious sexual offence	inserted by 35/2020 s 9(4)	2.11.2020
amended by 21/2023 s 11	1.1.2024
Pt 3
Pt 3 Div 2
s 46
s 46(1)	amended by 67/2017 s 6	30.4.2018
s 48
s 48(1)	deleted by 43/2020 s 12(1)	29.3.2021
s 48(2)	amended by 43/2020 s 12(2)	29.3.2021
s 48(3)	amended by 43/2020 s 12(3), (4)	29.3.2021
s 48(3a)	inserted by 43/2020 s 12(5)	29.3.2021
s 48(5)	inserted by 43/2020 s 12(6)	29.3.2021
Pt 3 Div 4
s 52 before substitution by 33/2020
s 52(1)
serious offence	amended by 11/2019 s 5	23.5.2019
s 52	substituted by 33/2020 s 4	14.11.2020
serious offence	amended by 37/2021 s 5	4.4.2022
serious sexual offence	amended by 9/2022 s 19(1), (2)	1.10.2022
s 53	substituted by 33/2020 s 4	14.11.2020
s 55
s 55(1)	substituted by 33/2020 s 5	14.11.2020
Pt 3 Div 5
s 58
s 58(1a)	inserted by 2/2018 s 3(1)	25.6.2018
s 58(4a)	inserted by 2/2018 s 3(2)	25.6.2018
s 58(6)	inserted by 2/2018 s 3(3)	25.6.2018
s 59
s 59(1a)	inserted by 2/2018 s 4(1)	25.6.2018
s 59(4a)	inserted by 2/2018 s 4(2)	25.6.2018
s 59(10)	amended by 2/2018 s 4(3)	25.6.2018
s 59(19)	deleted by 2/2018 s 4(4)	25.6.2018
s 61
s 61(1)	amended by 2/2018 s 5	25.6.2018
s 62	amended by 2/2018 s 6	25.6.2018
s 63	amended by 2/2018 s 7	25.6.2018
s 64	amended by 2/2018 s 8	25.6.2018
s 65
s 65(1)	(c) deleted by 2/2018 s 9(1)	25.6.2018
amended by 45/2019 Sch 1 cl 78	1.1.2021
s 65(3)	amended by 45/2019 Sch 1 cl 78	1.1.2021
s 65(4)	amended by 45/2019 Sch 1 cl 78	1.1.2021
s 65(5)	(a)(iii) deleted by 2/2018 s 9(2)	25.6.2018
Pt 3 Div 6
heading	amended by 57/2021 s 20	1.6.2022
s 68	substituted by 57/2021 s 21	1.6.2022
Pt 3 Div 7
Pt 3 Div 7 Subdiv 1
s 70
s 70(2)
terrorist act	amended by 11/2019 s 6	23.5.2019
s 71
s 71(2)	amended by 11/2019 s 7(1)—(3)	23.5.2019
s 71(4)	substituted by 11/2019 s 7(4)	23.5.2019
s 71(5)
designated offence	amended by 11/2019 s 7(5)	23.5.2019
foster parent	inserted by 11/2019 s 7(6)	23.5.2019
prescribed serious sexual offence	inserted by 11/2019 s 7(7)	23.5.2019
serious and organised crime offence	amended by 36/2018 s 6(1), (2)	28.2.2019
amended by 32/2018 s 26	1.4.2019
s 71(6)	inserted by 11/2019 s 7(8)	23.5.2019
s 71(6a)	inserted by 9/2022 s 20	1.10.2022
s 71(7) and (8)	inserted by 11/2019 s 7(8)	23.5.2019
s 73
s 73(4)	amended by 11/2019 s 8(1)	23.5.2019
(b) deleted by 11/2019 s 8(2)	23.5.2019
s 73(4a) and (4b)	inserted by 11/2019 s 8(3)	23.5.2019
Pt 3 Div 7 Subdiv 2
s 79
s 79(1)	amended by 36/2018 s 7	28.2.2019
s 80
s 80(1)	amended by 11/2019 s 9(1)	23.5.2019
s 80(2)
terrorist act	inserted by 11/2019 s 9(2)	23.5.2019
s 81
s 81(3)	amended by 11/2019 s 10(1), (2)	23.5.2019
s 81(5)	inserted by 11/2019 s 10(3)	23.5.2019
serious sexual offence	amended by 17/2023 Sch 1 cl 2	22.6.2023
s 81(6)	inserted by 11/2019 s 10(3)	23.5.2019
s 82
s 82(1)	amended by 11/2019 s 11(1)	23.5.2019
s 82(2)	(d) deleted by 11/2019 s 11(2)	23.5.2019
s 83
s 83(3)	substituted by 11/2019 s 12(1)	23.5.2019
s 83(3a)	inserted by 11/2019 s 12(1)	23.5.2019
s 83(4)	amended by 11/2019 s 12(2)—(4)	23.5.2019
Pt 4
s 95
s 95(2)	amended by 11/2019 s 13(1)	23.5.2019
s 95(3)
terrorist act	inserted by 11/2019 s 13(2)	23.5.2019
s 95(4)	inserted by 11/2019 s 13(3)	23.5.2019
s 96
s 96(3)	amended by 11/2019 s 14(1)	23.5.2019
s 96(7)	deleted by 11/2019 s 14(2)	23.5.2019
s 96(9)
designated offence	amended by 11/2019 s 14(3)	23.5.2019
(i) deleted by 11/2019 s 14(4)	23.5.2019
amended by 17/2019 Sch 1 cl 3	3.10.2019
foster parent	inserted by 11/2019 s 14(5)	23.5.2019
serious and organised crime offence	amended by 32/2018 s 27	1.4.2019
serious sexual offence	inserted by 11/2019 s 14(6)	23.5.2019
s 96(10)	inserted by 11/2019 s 14(7)	23.5.2019
s 96(10a)	inserted by 9/2022 s 21	1.10.2022
s 96(11) and (12)	inserted by 11/2019 s 14(7)	23.5.2019
s 98
s 98(7)	amended by 36/2018 s 8	28.2.2019
s 103
s 103(2)	amended by 36/2018 s 9	28.2.2019
s 106
s 106(2)	amended by 11/2019 s 15	23.5.2019
s 109	deleted by 11/2019 s 16	23.5.2019
s 114
s 114(5)	(d) deleted by 11/2019 s 17	23.5.2019
Pt 6
s 124
s 124(6)	(c) deleted by 21/2019 s 18	19.9.2019
Sch 1
Pt 3	inserted by 2/2018 s 10	25.6.2018
Sch 2	inserted by 2/2018 s 11	25.6.2018

Transitional etc provisions associated with Act or amendments

Statutes Amendment (Youths Sentenced as Adults) Act 2017, Sch 1

1—Transitional provision

An amendment effected by this Act applies to a youth who is being sentenced as an adult after the commencement of the amendment, whether the offence in respect of which the youth is being sentenced occurred before or after that commencement.

Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019, Sch 1 Pt 2

3—Savings and transitional provisions

(1)
An amendment effected by a provision of this Act applies to the sentencing of a defendant after the commencement of the provision, regardless of whether—
(a)
the offence for which the defendant is being sentenced was committed before or after that commencement; or
(b)
the defendant is being sentenced at first instance or on an appeal against sentence.
(2)
An amendment effected by a provision of this Act relating to proceedings for a breach of a condition of a home detention order or intensive correction order applies to such proceedings—
(a)
commenced but not determined before the commencement of the provision; or
(b)
commenced after the commencement of the provision,
regardless of whether the breach to which the proceedings relate was committed before or after that commencement.
(3)
An amendment effected by a provision of this Act does not apply to or in relation to a home detention condition included in a bond under section 96(7) of the Sentencing Act 2017 (as in force immediately before the commencement of section 14(2) of this Act).

Statutes Amendment (Sentencing) Act 2020, Pt 3

10—Transitional provision

(1)
The Sentencing Act 2017 as amended by this Part applies in relation to the sentencing of a person for an offence to which the person pleads guilty on or after the commencement of this Part (regardless of whether the offence was committed before or after that commencement).
(2)
To avoid doubt, nothing in this Part affects any sentence imposed before the commencement of this Part.

Sentencing (Serious Repeat Offenders) Amendment Act 2020, Sch 1—Transitional provisions etc

1—Application of amendments

(1)
The Sentencing Act 2017 as amended by this Act applies in relation to a sentence imposed after the commencement of this Act regardless of whether—
(a)
the offence for which the defendant is being sentenced was committed before or after that commencement; or
(b)
the defendant is being sentenced at first instance or on an appeal.
(2)
To avoid doubt, nothing in this Act affects any sentence imposed before the commencement of this Act.

Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020, Sch 1—Transitional provisions

3—Transitional provision—amendments to Sentencing Act 2017
Section 48 of the Sentencing Act 2017 (as amended by this Act) applies in relation to a non‑parole period in respect of an offence where—
(a)
proceedings for the offence were commenced but not determined before the commencement of this clause; and
(b)
proceedings for an offence commenced after the commencement of this clause (whether the offence was committed before or after that commencement).

Sentencing (Hate Crimes) Amendment Act 2021, Sch 1

1—Transitional provision—Sentencing Act 2017

Section 11(1)(ca) of the Sentencing Act 2017 (as enacted by this Act) will be taken not to apply in relation to sentencing for an offence that occurred before the commencement of this clause.

Statutes Amendment (Sexual Offences) Act 2023, Pt 5

12—Transitional provision

(1)
The Sentencing Act 2017 as amended by this Part applies in relation to the sentencing of a person for an offence to which the person pleads guilty on or after the commencement of this Part (regardless of whether the offence was committed before or after that commencement).
(2)
To avoid doubt, nothing in this Part affects any sentence imposed before the commencement of this Part.

Historical versions

30.4.2018
25.6.2018
28.2.2019
1.4.2019
23.5.2019
19.9.2019
3.10.2019
2.11.2020
14.11.2020
1.1.2021
29.3.2021
25.11.2021
4.4.2022
1.6.2022
1.10.2022
22.6.2023

Year	No	Title	Assent	Commencement
2017	26	Sentencing Act 2017	18.7.2017	30.4.2018 (Gazette 6.2.2018 p610)
2017	67	Statutes Amendment (Youths Sentenced as Adults) Act 2017	12.12.2017	Pt 4 (s 6) & Sch 1 (cl 1)—30.4.2018 immediately after s 6 of 26/2017: s 2(2)
2018	2	Sentencing (Release on Licence) Amendment Act 2018	25.6.2018	25.6.2018
2018	32	Statutes Amendment (Drug Offences) Act 2018	22.11.2018	Pt 3 (ss 26 & 27)—1.4.2019 (Gazette 7.2.2019 p415)
2018	36	Sentencing (Miscellaneous) Amendment Act 2018	6.12.2018	28.2.2019 (Gazette 28.2.2019 p703)
2019	11	Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019	23.5.2019	Pt 2 (ss 4 to 17) & Sch 1 (cl 3)—23.5.2019 (Gazette 23.5.2019 p1351)
2019	17	Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019	1.8.2019	Sch 1 (cll 2 & 3)—3.10.2019 (Gazette 3.10.2019 p3398)
2019	21	Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2019	19.9.2019	Pt 11 (s 18)—19.9.2019: s 2(1)
2019	45	Supreme Court (Court of Appeal) Amendment Act 2019	19.12.2019	Sch 1 (cl 78)—1.1.2021 (Gazette 10.12.2020 p5638)
2020	33	Sentencing (Serious Repeat Offenders) Amendment Act 2020	1.10.2020	14.11.2020 (Gazette 12.11.2020 p5040)
2020	35	Statutes Amendment (Sentencing) Act 2020	22.10.2020	Pt 3 (ss 7 to 10)—2.11.2020 (Gazette 29.10.2020 p4927)
2020	43	Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020	10.12.2020	Pt 5 (s 12) & Sch 1 (cl 3)—29.3.2021 (Gazette 27.1.2021 p163)