South Australia: 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. Contents Part 1—Preliminary Division 1—Preliminary 1 Short title Division 2—Sentencing purposes 3 Primary sentencing purpose 4 Secondary sentencing purposes Division 3—Interpretation and application of Act 5 Interpretation 6 Application of Act to youths 7 Powers conferred by this Act are additional 8 Court may not impose bond except under this Act Part 2—Sentencing purposes, principles and factors Division 1—Purposes, principles and factors 9 Primary purpose to be considered 10 General principles of sentencing 11 Individual sentencing factors Division 2—General sentencing provisions Subdivision 1—Procedural provisions 12 Determination of sentence 13 Prosecutor to provide particulars of victim's injury etc 14 Victim impact statements 15 Community impact statements 16 Statements to be provided in accordance with rules 17 Pre‑sentence reports 18 Expert evidence 19 Court to inform defendant of reasons etc for sentence 20 Rectification of sentencing errors 21 Presence of defendant during sentencing proceedings 22 Sentencing of Aboriginal and Torres Strait Islander defendants Subdivision 2—General sentencing powers 23 Discharge without penalty 24 Imposition of penalty without conviction 25 Court may reduce, add or substitute certain penalties 26 Sentencing for multiple offences 27 Non‑association or place restriction orders may be issued on sentence 28 Intervention orders may be issued on finding of guilt or sentencing 29 Deferral of sentence for rehabilitation and other purposes 30 Mental impairment Subdivision 4—Sentencing reductions 36 Application of Subdivision 37 Reduction of sentences for cooperation etc with law enforcement agency 39 Reduction of sentences for guilty plea in Magistrates Court etc 40 Reduction of sentences for guilty pleas in other cases 41 Application of sentencing reductions 42 Re‑sentencing for failure to cooperate in accordance with undertaking under section 37 43 Re‑sentencing for subsequent cooperation with law enforcement agency Part 3—Custodial sentences Division 1—Imprisonment 44 Commencement of sentences and non‑parole periods 45 Cumulative sentences Division 2—Non‑parole periods 46 Application of Division to youths 47 Duty of court to fix or extend non‑parole periods 48 Mandatory minimum non‑parole periods and proportionality Division 3—Serious firearm offenders 49 Interpretation 50 Serious firearm offenders 51 Sentence of imprisonment not to be suspended Division 4—Serious repeat adult offenders and recidivist young offenders 52 Interpretation 53 Serious repeat offenders 54 Sentencing of serious repeat offenders 55 Declaration that youth is recidivist young offender Division 5—Offenders incapable of controlling, or unwilling to control, sexual instincts 56 Application of this Division 57 Offenders incapable of controlling, or unwilling to control, sexual instincts 58 Discharge of detention order under section 57 59 Release on licence 60 Appropriate board may direct person to surrender firearm etc 61 Court may obtain reports 62 Inquiries by medical practitioners 63 Parties 64 Service on guardian 65 Appeals 66 Proclamations 67 Regulations Division 6—Sentencing standards for offences involving child sexual abuse 68 Sentencing standards for offences involving child sexual abuse Division 7—Community based custodial sentences Subdivision 1—Home detention 69 Purpose of home detention 70 Home detention not available for certain offences 71 Home detention orders 72 Conditions of home detention order 73 Orders that court may make on breach of condition of home detention order etc 74 Court to provide CE with copy of home detention order 75 CE must assign home detention officer 76 Powers of home detention officers 77 Apprehension and detention of person subject to home detention order without warrant 78 Offence to contravene or fail to comply with condition of home detention order Subdivision 2—Intensive correction 79 Purpose of intensive correction order 80 Intensive correction not available for certain offences 81 Intensive correction orders 82 Conditions of intensive correction order 83 Orders that court may make on breach of condition of intensive correction order etc 84 Court to provide CE with copy of intensive correction order 85 CE must assign community corrections officer 86 Provisions relating to community service 87 Court to be notified if suitable community service placement not available 88 Community corrections officer to give reasonable directions 89 Power of Minister in relation to default in performance of community service 90 Apprehension and detention of person subject to intensive correction order without warrant 91 Offence to contravene or fail to comply with condition of intensive correction order Subdivision 3—General 92 Court may direct person to surrender firearm etc Division 8—Effect of imprisonment for contempt 93 Effect of imprisonment for contempt Part 4—Other community based sentences Division 1—Purpose, interpretation and application 94 Purpose of Part 95 Interpretation and application of Part Division 2—Bonds, community service and supervision in community 96 Suspension of imprisonment on defendant entering into bond 97 Discharge of other defendants on entering into good behaviour bond 98 Conditions of bonds under this Act 99 Term of bond 100 Guarantors etc 101 Court may direct person to surrender firearm etc 102 Court to provide CE with copy of court order 103 Variation or discharge of bond 104 Court to be notified if suitable community service placement not available 105 Provisions relating to community service 106 Provisions relating to supervision in the community 107 CE must assign community corrections officer 108 Community corrections officer to give reasonable directions 110 Variation of community service order 111 Power of Minister to cancel unperformed hours of community service 112 Power of Minister in relation to default in performance of community service Division 3—Enforcement of bonds, community service orders and other orders of a non‑pecuniary nature Subdivision 1—Bonds 113 Non‑compliance with bond 114 Orders that court may make on breach of bond Subdivision 2—Community service orders and other orders of a non‑pecuniary nature 115 Community service orders may be enforced by imprisonment 116 Other non‑pecuniary orders may be enforced by imprisonment 117 Registrar may exercise jurisdiction under this Division 118 Detention in prison Part 5—Financial penalties 119 Maximum fine if no other maximum provided 120 Order for payment of pecuniary sum not to be made in certain circumstances 121 Preference must be given to compensation for victims 122 Court not to fix time for payment of pecuniary sums Part 6—Restitution and compensation Division 1—Restitution and compensation generally 123 Restitution of property 124 Compensation 125 Certificate for victims of identity theft Division 2—Enforcement of restitution orders 126 Non‑compliance with order for restitution of property Part 7—Miscellaneous 127 Power of delegation—intervention program manager 128 Regulations Schedule 1—Repeal and transitional provisions Part 1—Repeal of Criminal Law (Sentencing) Act 1988 1 Repeal of Act Part 2—Transitional provisions 2 Transitional provisions Part 3—Transitional provisions relating to Sentencing (Release on Licence) Amendment Act 2018 3 Transitional provisions 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 Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary Division 1—Preliminary 1—Short title This Act may be cited as the Sentencing Act 2017. Division 2—Sentencing purposes 3—Primary 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). 4—Secondary 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 3—Interpretation and application of Act 5—Interpretation (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. 6—Application 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. 7—Powers 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. 8—Court 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 2—Sentencing purposes, principles and factors Division 1—Purposes, principles and factors 9—Primary 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. 10—General 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). 11—Individual 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 2—General sentencing provisions Subdivision 1—Procedural provisions 12—Determination 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. 13—Prosecutor 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— (a) injury, loss or damage resulting from the offence; and (b) injury, loss or damage resulting from— (i) any other offence that is to be taken into account specifically in the determination of sentence; or (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. 14—Victim 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. 15—Community 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. 16—Statements 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. 17—Pre‑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. 18—Expert 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. 19—Court 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. 20—Rectification 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. 21—Presence 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: (a) the defendant may, with the court's consent, be absent during the whole or part of the proceedings; (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; (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— (a) does not prevent the passing of sentence in the absence of the defendant in a case where the defendant cannot be found; and (b) does not invalidate a sentence passed in the absence of the defendant. 22—Sentencing 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— (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. Subdivision 2—General sentencing powers 23—Discharge 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. 24—Imposition 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. 25—Court 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— (a) the character, antecedents, age, or physical or mental condition, of the defendant; or (b) the fact that the offence was trifling; or (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— (a) impose another type of sentence for the sentence prescribed under the Act for the offence; or (b) impose more than 1 type of sentence as the court thinks appropriate in the circumstances. (3) For the purposes of subsection (2)— (a) if the Act prescribes a sentence of imprisonment only for the offence, the court may instead impose— (i) a sentence of imprisonment (including a community based custodial sentence or a suspended sentence); or (ii) a fine; or (iii) a sentence of community service; or (iv) both a fine and a sentence of community service; or (b) if the Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose— (i) a sentence of imprisonment (including a community based custodial sentence or a suspended sentence) only; or (ii) a fine only; or (iii) a sentence of community service; or (iv) both a fine and a sentence of community service; or (c) if the Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose— (i) a sentence of community service; or (ii) both a fine and a sentence of community service; or (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. 26—Sentencing 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. 27—Non‑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— (a) has effect as such an order under the Criminal Procedure Act 1921; and (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. 28—Intervention 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— (a) the court were the Magistrates Court; and (b) the proceedings were child protection restraining order proceedings within the meaning of that section. (4) An order issued under this section— (a) has effect— (i) as a restraining order under the Criminal Procedure Act 1921; or (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 (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— (a) consider whether or not an order should be issued under this section; and (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. 29—Deferral 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— (a) for the purpose of assessing the defendant's capacity and prospects for rehabilitation; or (b) for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or (c) for the purpose of assessing the defendant's eligibility for participation in an intervention program; or (d) for the purpose of allowing the defendant to participate in an intervention program; or (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— (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 (b) if the proceedings were not adjourned for such a period— (i) the defendant would be prevented from completing, or participating in, the intervention program; and (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. 30—Mental 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 4—Sentencing reductions 36—Application 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. 37—Reduction 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— (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) 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: (a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea; (b) the nature and extent of the defendant's cooperation or undertaking; (c) the timeliness of the cooperation or undertaking; (d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant; (e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking; (f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking; (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; (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); (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; (j) the nature of any steps that would be likely to be necessary to protect the defendant on release from prison; (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. 39—Reduction of sentences for guilty plea in Magistrates Court etc (1) This section applies— (a) if the offence is a summary offence; or (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 (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'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%; (b) more than 4 weeks after the defendant's first court appearance 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) 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%; (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— (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 (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 did not list the defendant's matter for hearing during that period; or (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 (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— (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 (b) the defendant pleads guilty no more than 14 days after the expiration of the designated period; and (c) the court is satisfied that the defendant was unable to obtain legal advice within the designated period as a result of— (i) the defendant residing in a remote location; or (ii) the defendant leading an itinerant lifestyle; or (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: (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; (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); (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; (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) 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; (f) whether at any stage in the proceedings for the offence— (i) the defendant disputed the factual basis of the plea; and (ii) a hearing occurred in relation to the dispute; and (iii) the dispute was not resolved in favour of the defendant; (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; (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 se