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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Sentencing) (Guilty Pleas) Amendment
Bill 2012
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
9E
9EPurpose and application
of Division
6Substitution of
section 10
10Sentencing
considerations
7Insertion of sections 10B and
10C
10BReduction of sentences for
guilty plea in Magistrates Court etc
10CReduction of sentences for guilty plea in other
cases
8Repeal of section 20
9Substitution of Schedule
Schedule 1—Review of reduction of
sentence scheme
1Inquiry
into and report on operation of reduction of sentence
scheme
Schedule 1—Transitional
provision
1Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Guilty Pleas)
Amendment Act 2012.
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,
including (for example) any reason why a sentence that would otherwise have been
imposed for the offence or offences has been reduced.
(1a) 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.
After the heading to Part 2 Division 2 insert:
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.
Section 10—delete the section and substitute:
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.
7—Insertion
of sections 10B and 10C
Before section 11 insert:
10B—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) less than
4 weeks before the day set for 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%;
(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) 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 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 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) 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.
10C—Reduction of sentences for guilty plea in other
cases
(1) This section applies to a sentencing court other than where
section 10B
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) within 7 days immediately following—
(i) an unsuccessful application by or on behalf of the defendant to quash
or stay the proceedings; or
(ii) a ruling adverse to the interests of the defendant in the course of a
hearing of the proceedings,
determined during the period commencing on the day on which the defendant
is committed for trial for the offence or offences and ending not less than
5 weeks before the commencement of the trial—the sentencing court may
reduce the sentence that it would otherwise have imposed by
up to 15%;
(f) 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,
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 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 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—delete the Schedule and substitute:
Schedule 1—Review of reduction of sentence
scheme
1—Inquiry into and report on operation of reduction
of sentence scheme
(1) The Minister must, at the end of 2 years from the commencement of
this clause, appoint a person recommended by the Chief Justice of the Supreme
Court, to conduct an inquiry into—
(a) the operation of Part 2 Division 2 of this Act as amended by
the Criminal
Law (Sentencing) (Guilty Pleas) Amendment Act 2012; and
(b) report on the effect (if any) that the operation of that Division as
so amended has had on—
(i) providing transparency in respect of sentences given to offenders;
and
(ii) improving the operation and effectiveness of the criminal justice
system.
(2) A report on the inquiry must be provided to the Minister who must
cause a copy of the report to be laid before each house of Parliament within
3 months after receipt of the report.
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.