Sentencing Act 2017

This Act may be cited as the Sentencing Act 2017.

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

The secondary purposes for sentencing a defendant for an offence are as follows:

to ensure that the defendant—

is punished for the offending behaviour; and

is held accountable to the community for the offending behaviour;

to publicly denounce the offending behaviour;

to publicly recognise the harm done to the community and to any victim of the offending behaviour;

to deter the defendant and others in the community from committing offences;

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;

to promote the rehabilitation of the defendant.

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.

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 4Division 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—

the relationship between a legally married couple; or

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: NoteTwo 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 developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); and

an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); and

a mental illness;

community based custodial sentence—see Part 3Division 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—

injection of the drug (either by the person to whom the drug is administered or someone else); and

inhalation of the drug; and

any other means of introducing the drug into the body;

court—

means a court of criminal jurisdiction; and

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—

supervised treatment; or

supervised rehabilitation; or

supervised behaviour management; or

supervised access to support services; or

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—

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

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 fine; or

compensation; or

costs; or

a sum payable under a bond or to a guarantee ancillary to a bond; or

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—

on home detention subject to a home detention order; or

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—

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

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—

the drug is administered against the will, or without the knowledge, of the person who consumes it; or

the consumption occurs accidentally; or

the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or

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—

the imposition of a penalty; or

the decision of a court to offer a defendant an opportunity to enter into a bond; or

the fixing, extending or negating of a non‑parole period; or

the making of any other order or direction affecting penalty, including the decision of a court to discharge a defendant—

without imposing a penalty; or

without recording a conviction;

sentence of indeterminate duration means detention in custody until further order (and see Part 3Division 5);

serious child sex offender has the same meaning as in Part 3 Division 2A;

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—

the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or

the drug—

is a drug of a kind available, without prescription, from registered pharmacists; and

is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;

triggering child sex offence has the same meaning as in Part 3 Division 2A;

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.

Intoxication resulting from the recreational use of a drug is to be regarded as self‑induced.

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.

For the purposes of this Act—

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

a person who pleads guilty to a charge of an offence will be taken to have been found guilty of the offence unless—

the plea is subsequently withdrawn; or

the person is adjudged incompetent to have made the plea.

For the purposes of this Act, a reference to an offence committed by a serious child sex offender, or to the sentencing of a serious child sex offender for an offence, will be taken to include a reference to an offence that resulted in the person being a serious child sex offender.

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.

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.

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 reference to imprisonment is to be read as a reference to detention; and

a reference to a warrant of commitment is to be read as an order for detention; and

a reference to a prison is to be read as a reference to a training centre; and

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

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

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

a reference to a probationer is to be read as a reference to a youth the subject of such an order; and

a reference to the Minister for Correctional Services is to be read as a reference to the Minister for Youth Justice.

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.

Nothing in this Act affects the powers of a court to punish a person for contempt of that court.

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

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.

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:

proportionality;

parity;

totality;

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.

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—

the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or

it is required for the purpose of protecting the safety of the community (whether as individuals or in general).

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:

the nature, circumstances and seriousness of the offence;

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;

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;

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);

the defendant's character, general background and offending history;

the likelihood of the defendant re‑offending;

the defendant's age, and physical and mental condition (including any cognitive impairment);

the extent of the defendant's remorse for the offence, having regard in particular as to whether—

the defendant has provided evidence that the defendant has accepted responsibility for the defendant's actions; and

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;

the defendant's prospects of rehabilitation.

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.

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).

A court must determine the sentence for an offence without regard to—

the fact that this Act or another Act prescribes a mandatory minimum non‑parole period in respect of the offence; or

any consequences that may arise under the

Child Sex Offenders Registration

Act 2006; or

the good character or lack of previous convictions of the defendant if—

the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration

Act 2006; and

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.

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.

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.

However, the fact that a defendant—

has not participated in, or has not had the opportunity to participate in, an intervention program; or

has performed badly in, or has failed to make satisfactory progress in, such a program, is not relevant to sentence.

For the purpose of determining sentence, a court—

is not bound by the rules of evidence; and

may inform itself on matters relevant to the determination as it thinks fit; and

must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

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—

injury, loss or damage resulting from the offence;

and

injury, loss or damage resulting from—

any other offence that is to be taken into account specifically in the determination of sentence; or

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.

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.

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).

The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.