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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Sentencing) (Sentencing Considerations)
Amendment Bill 2011
A BILL FOR
An Act to amend the Criminal
Law (Sentencing) Act 1988.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Criminal Law
(Sentencing) Act 1988
4Amendment of section
9—Court to inform defendant of reasons etc for sentence
5Insertion of
section 9AA
9AAInformation relating to reduced
sentences
6Substitution of
section 10
9EPurpose
and application of Division
10Sentencing
considerations
10AReduction of sentences for
cooperation etc with law enforcement agency
10BReview of sentences reduced under
section 10A
10CReduction of sentences for
guilty plea in Magistrates Court etc
10DReduction of sentences for guilty plea in other
cases
7Repeal of section 20
Schedule 1—Transitional
provision
1Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Sentencing
Considerations) Amendment Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law (Sentencing)
Act 1988
4—Amendment
of section 9—Court to inform defendant of reasons etc for
sentence
Section 9(1)—delete subsection (1) and substitute:
(1) A court must, on sentencing a defendant who is present in court
(whether in person or by video 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.
After section 9 insert:
9AA—Information relating to reduced
sentences
(1) Without limiting
section 9, if a court imposes a reduced sentence for an offence or offences in
accordance with section 10A, 10C or 10D, the court must
record—
(a) the provision of
this Act under which the sentence was reduced; and
(b) the sentence that it would, but for the reduction, have imposed;
and
(c) the amount by which the sentence was reduced; and
(d) the circumstances
that, in the opinion of the court, made the amount of the reduction
appropriate.
(2) The court must give
written notice to the defendant and the prosecution of the information recorded
under
subsection (1).
Note—
Nothing in this subsection prevents a court from stating, nor compels a
court to state, the information in open court.
(3) Despite a provision
of this or any other Act or law, if a person applies to a court to inspect or
obtain a copy of material that relates to a sentence reduced under
section 10A, or to a review under section 10B, the court—
(a) must, in accordance with the regulations, notify a prescribed person
that the application has been made; and
(b) must not allow the person to inspect or obtain a copy of the material
until any application made under
subsection (4) has
been finally determined.
(4) On being notified
of an application under
subsection (3), a
prescribed person may, in accordance with the regulations, make an application
to the court requesting that the person be refused permission to inspect or
obtain a copy of the material on the basis that the material is subject to
public interest immunity.
(5) The validity of a sentence, or a reduction of a sentence, is not
affected by non-compliance or insufficient compliance with this
section.
Section 10—delete the section and substitute:
9E—Purpose and application of
Division
(1) Except where the contrary intention appears, this Division qualifies
rather than displaces the common law principles in relation to
sentencing.
(2) Except where the contrary intention expressly appears, this Division
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.
10—Sentencing considerations
(1) In determining the sentence for an offence, a court must have regard
to such of the following factors and principles as may be relevant:
(a) the circumstances of the offence;
(b) other offences (if any) that are to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a
series of criminal acts of the same or a similar character—that course of
conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) if the offence was committed by an adult in circumstances where the
offending conduct was seen or heard by a child (other than the victim (if any)
of the offence or another offender)—those circumstances;
(g) the degree to which the defendant has shown contrition for the offence
(including by taking action to make reparation for any injury, loss or damage
resulting from the offence);
(h) the degree to which the defendant has cooperated in the investigation
of the offence;
(i) the deterrent effect any sentence under consideration may have on the
defendant or other persons;
(j) the need to ensure that the defendant is adequately punished for the
offence;
(k) if a forfeiture of property (other than a forfeiture that merely
neutralises a benefit that has been obtained through the commission of the
offence) is, or is to be imposed, as a result of the commission of the
offence—the nature and extent of the forfeiture;
(l) the character, antecedents, age, means and physical or mental
condition of the defendant;
(m) the rehabilitation of the defendant;
(n) the probable effect any sentence under consideration would have on
dependants of the defendant;
(o) any other relevant matter.
(2) In determining the sentence for an offence, a court must give proper
effect to the following:
(a) the need to protect the safety of the community;
(b) the need to protect the security of the lawful occupants of their home
from intruders;
(c) in the case of an offence involving the sexual exploitation of a
child—the need to protect children by ensuring that paramount
consideration is given to the need for general and personal
deterrence;
(d) in the case of an offence involving arson or causing a
bushfire—
(i) the need to protect the community from offending of such extreme
gravity by ensuring that paramount consideration is given to the need for
general and personal deterrence; and
(ii) the fact that the offender should, to the maximum extent possible,
make reparation for the harm done to the community by his or her
offending.
(3) In determining the sentence for an offence, a court must not have
regard to any of the following:
(a) the fact that a mandatory minimum non-parole period is prescribed in
respect of the sentence for the offence under this Act or another Act;
(b) any consequences that may arise under the Child
Sex Offenders Registration Act 2006;
(c) the fact that the defendant—
(i) has not participated in, or has not had the opportunity to participate
in, an intervention program; or
(ii) has performed badly in, or has failed to make satisfactory progress
in, such a program.
10A—Reduction of sentences for cooperation etc with
law enforcement agency
(1) A court may declare
a defendant to be a defendant to whom this subsection applies if the court is
satisfied that the defendant has cooperated or undertaken to cooperate with a
law enforcement agency and that the cooperation—
(a) relates directly to combating serious and organised criminal activity;
and
(b) is provided in exceptional circumstances; and
(c) contributes significantly to the public interest.
(2) If a defendant to whom
subsection (1)
applies has pleaded guilty to an offence or offences, the sentencing court may
reduce the sentence that it would otherwise have imposed by such percentage as
the court thinks appropriate in the circumstances (including, to avoid doubt, a
percentage exceeding 40%).
(3) If a defendant (other than a defendant to whom
subsection (1)
applies)—
(a) has pleaded guilty to an offence or offences; and
(b) has cooperated or undertaken to cooperate with a law enforcement
agency,
the sentencing court may reduce the sentence that it would otherwise have
imposed by up to 40%.
(4) If a defendant has been found guilty of an offence or offences (other
than where the defendant has pleaded guilty to the offence or offences) and has
cooperated or undertaken to cooperate with a law enforcement agency, the
sentencing court may reduce the sentence that it would otherwise have imposed by
up to 20%.
(5) In determining the percentage by which a sentence is to be reduced
under this section, a court must have regard to such of the following as may be
relevant:
(a) the nature and extent of the defendant's cooperation or
undertaking;
(b) the timeliness of the cooperation or undertaking;
(c) the truthfulness, completeness and reliability of any information or
evidence provided by the defendant;
(d) the evaluation (if any) by the authorities of the significance and
usefulness of the defendant's cooperation or undertaking;
(e) any benefit that the defendant has gained or is likely to gain by
reason of the cooperation or undertaking;
(f) 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;
(g) whether the
cooperation or undertaking concerns the 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);
(h) 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;
(i) the nature of
any steps that would be likely to be necessary to protect the defendant on his
or her release from prison;
(j) the likelihood that the defendant will commit further
offences,
and may have regard to any other factor or principle the court thinks
relevant.
(6) Nothing in this section affects the operation of sections 15, 16
and 17.
10B—Review of sentences reduced under
section 10A
(1) A court that
has reduced a defendant's sentence under
section 10A may, on the
application of the Director of Public Prosecutions, review the sentence if
satisfied that the defendant has not cooperated with a law enforcement agency in
accordance with the terms of any relevant undertaking under that
section.
(2) On a review
under
subsection (1),
the court may do 1 or more of the following:
(a) vary the sentence previously imposed on the defendant by increasing
the sentence by such percentage as the court thinks fit, having regard to the
extent to which the defendant failed to comply with his or her
undertaking;
(b) confirm the sentence previously imposed on the defendant;
(c) make any consequential or ancillary orders the court thinks
fit.
(3) Nothing in
subsection (2)
authorises a court to vary a sentence so that it exceeds the sentence that
would, but for the reduction, have been imposed by the court that imposed the
sentence.
(4) The Director of Public Prosecutions and the defendant are both parties
to an application under this section.
10C—Reduction of sentences for guilty plea in
Magistrates Court etc
(1) This section applies—
(a) if the sentencing court is the Magistrates Court; or
(b) if the sentencing court is sentencing in relation to a matter dealt
with as a summary offence; or
(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—
(a) not more than
4 weeks after the defendant first appears in a court 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%;
(b) more than 4 weeks after the defendant first appears in a court in
relation to the relevant offence or offences but—
(i) if a date has been set for a trial for the offence or
offences—not less than 4 weeks before that day; or
(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%;
(c) in any other case—the sentencing court may not reduce the
sentence to take account of the plea.
(3) If—
(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 relevant period; and
(b) the court is satisfied that the only reason that the defendant did not
plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the
defendant could reasonably have been expected to attend; or
(iii) the court was, because of reasons outside of the control of the
defendant, unable to hear the defendant's matter 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.
(4) In determining
the percentage by which a sentence for an offence is to be reduced under this
section, a court must have regard to such of the following as may be
relevant:
(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 shock the public
conscience;
(b) the stage in the proceedings for the offence at which the defendant
first indicated his or her 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);
(c) the circumstances surrounding the plea;
(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;
(e) if the defendant satisfies the court that he or she could not
reasonably have been expected to plead guilty at an earlier stage in the
proceedings because of circumstances outside of his or her control—that
fact;
(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,
and may have regard to any other factor or principle the court thinks
relevant.
(5) Nothing in this section affects the operation of sections 15, 16
and 17.
(6) The Governor may, by regulation, vary the periods set in
subsection (2)
within which a defendant must plead guilty in order to qualify for a particular
maximum reduction of sentence.
(7) 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.
10D—Reduction of sentences for guilty plea in other
cases
(1) This section applies to a sentencing court other than where
section 10C
applies.
(2) If a defendant
has pleaded guilty to an offence or offences—
(a) not more than
4 weeks after the defendant first appears in a court 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%;
(b) more than
4 weeks after the defendant first appears in a court in relation to the
relevant offence or offences but 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 up to 30%;
(c) during the period
commencing on the day on which the defendant is committed for trial for the
offence or offences and ending 12 weeks after the first date fixed for the
arraignment of the defendant (other than in the circumstances referred to in
paragraph (d))—the
sentencing court may reduce the sentence that it would otherwise have imposed by
up to 20%;
(d) during the period
commencing on the day on which the defendant is committed for trial for the
offence or offences but before the commencement of a trial for the offence or
offences and if the defendant satisfies the sentencing court that he or she
could not reasonably have pleaded guilty at an earlier stage in the proceedings
because of circumstances outside of his or her control—the sentencing
court may reduce the sentence that it would otherwise have imposed by up to
30%;
(e) in any other case—the sentencing court may not reduce the
sentence to take account of the plea.
(3) If—
(a) a maximum reduction available under
subsection (2)(a),
(b) or
(c) does not apply in
relation to a defendant's plea of guilty because the defendant did not plead
guilty within the relevant period; and
(b) the court is satisfied that the only reason that the defendant did not
plead guilty within the relevant period was because—
(i) the court did not sit during that period; or
(ii) the court did not sit during that period at a place where the
defendant could reasonably have been expected to attend; or
(iii) the court was, because of reasons outside of the control of the
defendant, unable to hear the defendant's matter 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.
(4) In determining
the percentage by which a sentence for an offence is to be reduced under this
section, a court must have regard to such of the following as may be
relevant:
(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 shock the public
conscience;
(b) the stage in the proceedings for the offence at which the defendant
indicated his or her 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);
(c) the circumstances surrounding the plea;
(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;
(e) if the defendant satisfies the court that he or she could not
reasonably have been expected to plead guilty at an earlier stage in the
proceedings because of circumstances outside of his or her control—that
fact;
(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,
and may have regard to any other factor or principle the court thinks
relevant.
(5) Nothing in this section affects the operation of sections 15, 16
and 17.
(6) The Governor may, by regulation, vary the periods set in
subsection (2)
within which a defendant must plead guilty in order to qualify for a particular
maximum reduction of sentence.
(7) 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.
Section 20—delete the section
Schedule 1—Transitional
provision
The amendments made by this Act to the Criminal
Law (Sentencing) Act 1988 apply to proceedings relating to an
offence instituted after the commencement of this Act, regardless of when the
offence occurred.