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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Sentencing)
Bill 2020
A BILL FOR
An Act to amend the
Criminal
Procedure Act 1921
and the
Sentencing
Act 2017
.
Contents
Part 2—Amendment of Criminal Procedure
Act 1921
4Amendment of section 108—Division not to
apply to certain matters
5Insertion of Part 5 Division 3A
Division 3A—Pleas to alternative offences
and attempts in the Magistrates Court
115APleas to
alternative offences and attempts in the Magistrates Court
6Amendment of section 133—Conviction on
plea of guilty of offence other than that charged
Part 3—Amendment of Sentencing
Act 2017
8Amendment of section 39—Reduction of
sentences for guilty plea in Magistrates Court etc
9Amendment of section 40—Reduction of
sentences for guilty pleas in other cases
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Sentencing)
Act 2020.
This Act comes 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 Procedure
Act 1921
4—Amendment
of section 108—Division not to apply to certain
matters
Section 108—after subsection (2) insert:
(3) To avoid doubt, subsection (2) applies regardless of whether the
Director of Public Prosecutions has made a determination as to the appropriate
charge or charges to be proceeded with in relation to the information charging
the major indictable offence.
5—Insertion
of Part 5 Division 3A
After Part 5 Division 3 insert:
Division 3A—Pleas to alternative offences and
attempts in the Magistrates Court
115A—Pleas to alternative offences and attempts in
the Magistrates Court
(1) If, in the
Magistrates Court, a person pleads not guilty to an offence charged but guilty
to—
(a) some other offence of which the person might be found guilty on trial
for the offence charged; or
(b) an attempt to commit the offence charged,
and the plea of guilty is accepted by the prosecution, then the Court
may—
(c) if the offence to which the person pleads guilty is a major indictable
offence—commit the person to a superior court for sentence or sentence the
person in accordance with section 116; or
(d) in any other case—sentence the person.
(2) If a person (having pleaded not guilty to an offence charged referred
to in
subsection (1)
) changes or withdraws a plea of guilty accepted under that subsection,
nothing in this section is to be taken to prevent the filing of a fresh
information in respect of the offence charged.
6—Amendment
of section 133—Conviction on plea of guilty of offence other than that
charged
(1) Section 133(a)—after "guilty" insert:
, sentenced for the offence to which the plea of guilty is
entered
(2) Section 133(c)—delete paragraph (c)
Part 3—Amendment
of Sentencing
Act 2017
Section 38—delete the section
8—Amendment
of section 39—Reduction of sentences for guilty plea in Magistrates Court
etc
(1) Section 39—after subsection (3) insert:
(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.
(2) Section 39(4)—after paragraph (e) insert:
(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 sentence by the percentage contemplated would be so
inappropriate that it would, or may, affect public confidence in the
administration of justice;
(i) whether any genuine remorse on behalf of the defendant for the
commission of the offence is so lacking that a reduction of the defendant's
sentence by the percentage contemplated would be so inappropriate that it would,
or may, affect public confidence in the administration of justice,
9—Amendment
of section 40—Reduction of sentences for guilty pleas in other
cases
(1) Section 40(3)—delete subsection (3) and substitute:
(3) 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—
(i) in the case of a serious indictable offence—up to 25%;
or
(ii) in any other case—up to 35%;
(b) more than
4 weeks after the defendant's first court appearance in relation to the
relevant offence or offences but on the day of, or before, the defendant's
committal appearance in relation to the relevant offence or offences—the
sentencing court may reduce the sentence that it would otherwise have imposed
by—
(i) in the case of a serious indictable offence—up to 15%;
or
(ii) in any other case—up to 25%;
(c) during the
period commencing on the day after the defendant's committal appearance in
relation to the relevant offence or offences and ending immediately 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—
(i) in the case of a serious indictable offence—up to 10%;
or
(ii) in any other case—up to 15%; or
Note—
See also section 110(3) of the
Criminal
Procedure Act 1921
.
(d) during the
period commencing immediately after the defendant is committed for trial for the
relevant offence or offences and ending immediately after the first date fixed
for the arraignment of the defendant in a superior court—the sentencing
court may reduce the sentence that it would otherwise have imposed
by—
(i) in the case of a serious indictable offence—up to 5%;
or
(ii) in any other case—up to 10%;
(e) during the period commencing immediately after the first date fixed
for the arraignment of the defendant in a superior court in relation to the
relevant offence or offences and ending at the commencement of the defendant's
trial for the relevant offence or offences—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 5%.
(2) Section 40—after subsection (4) insert:
(4a) Without limiting subsection (4), if—
(a) the maximum reduction available under subsection (3)(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.
(3) Section 40(5)—after paragraph (f) insert:
(g) 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;
(h) 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;
(i) 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 sentence by the percentage contemplated would be so
inappropriate that it would, or may, affect public confidence in the
administration of justice;
(j) whether any genuine remorse on behalf of the defendant for the
commission of the offence is so lacking that a reduction of the defendant's
sentence by the percentage contemplated would be so inappropriate that it would,
or may, affect public confidence in the administration of justice,
(4) Section 40(8)—after the definition of committal
appearance insert:
serious indictable offence means an offence that
is—
(a) a serious offence of violence within the meaning of
section 83D(1) of the
Criminal
Law Consolidation Act 1935
; or
(b) a serious sexual offence within the meaning of section 52(1) of
this Act for which the maximum penalty prescribed is, or includes, imprisonment
for at least 5 years; or
(c) any other offence prescribed by the regulations for the purposes of
this definition.
(1) The
Sentencing
Act 2017
as amended by this Part applies in relation to the sentencing of a person
for an offence to which the person pleads guilty on or after the commencement of
this Part (regardless of whether the offence was committed before or after that
commencement).
(2) To avoid doubt, nothing in this Part affects any sentence imposed
before the commencement of this Part.