Sentencing of Aboriginal and Torres Strait Islander defendants

In force

(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—

(a)

convene a sentencing conference; and

(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—

(a)

the defendant and, if the defendant is a child, the defendant's parent or guardian; and

(b)

the defendant's legal representative (if any); and

(c)

the prosecutor; and

(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

(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:

(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;

(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;

(c)

a member of the defendant's family;

(d)

a person who has provided support or counselling to the defendant;

(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—

(a)

the person is descended from an Aboriginal or Torres Strait

Islander; and

(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

(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.

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22 Sentencing of Aboriginal and Torres Strait Islander defendants