South Australian Current Acts South Australian Current Acts40—Reduction of sentences for guilty pleas in other cases
(1) This section
applies to a court sentencing a defendant for an offence other than an offence
described in section 39(1).
(2) If—
(a) a
defendant in any proceedings is pleading guilty to more than 1 offence; and
(b) this
section applies to at least 1 of the offences,
this section will be taken to apply to all of the offences (despite
section 39(1)).
(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%; or
(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%; or
(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%; or
(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%.
(a) a
maximum reduction available under subsection (3) 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)
after the making of the charge determination (within the
meaning of section 106 of the Criminal Procedure Act 1921 )—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.
(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.
(5) 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 indicated an
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) if
the defendant satisfies the court that the defendant could not reasonably have
been expected to plead guilty at an earlier stage in the proceedings because
of circumstances outside of the defendant's 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;
(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,
and may have regard to any other factor or principle the court thinks
relevant.
(6) 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.
(7) Where proceedings
have been instituted in a superior court by the DPP laying an information ex
officio in accordance with section 103 of the Criminal Procedure Act 1921
, this section applies in relation to those proceedings with the modifications
prescribed by the regulations.
(8) In this
section—
"committal appearance" has the same meaning as in section 109 of the
Criminal Procedure Act 1921 ;
"serious harm" has the same meaning as in section 21 of the
Criminal Law Consolidation Act 1935 ;
"serious indictable offence" means an offence that is—
(a) a
serious offence of violence for which the maximum penalty prescribed is, or
includes, imprisonment for at least 5 years; or
(b) a
serious sexual offence 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;
"serious offence of violence" means—
(a) an
offence under section 11, 13, 13A, 19A(1), 19AB(1), 23, 29(1), 29(2),
29A(1) or 31(1) of the Criminal Law Consolidation Act 1935 ; or
(b) an
offence under section 14 of the Criminal Law Consolidation Act 1935
where the victim died or suffered serious harm; or
(c) an
offence under section 19A(3) or 19AB(2) of the Criminal Law
Consolidation Act 1935 where serious harm was caused to a person; or
(d) an
offence under a corresponding previous enactment substantially similar to an
offence referred to in any of the preceding paragraphs; or
(e) an
attempt to commit or an assault with intent to commit any of the offences
referred to in any of the preceding paragraphs;
"serious sexual offence" means—
(a) an
offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63AA, 63A,
63AAB, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation
Act 1935 ; or
(b) an
offence under a corresponding previous enactment substantially similar to an
offence referred to in the preceding paragraph; or
(c) an
attempt to commit or an assault with intent to commit any of the offences
referred to in either of the preceding paragraphs.