South Australian Current Acts

SENTENCING ACT 2017 - SECT 43

43—Re-sentencing for subsequent cooperation with law enforcement agency

        (1)         This section applies to a person if—

            (a)         the person is currently serving a period of imprisonment for an offence or offences (the "relevant sentence"); and

            (b)         the person has cooperated with a law enforcement agency.

        (2)         A person to whom this section applies may, with the permission of the court that imposed the relevant sentence, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's cooperation with the law enforcement agency in accordance with this section.

        (3)         The court may only grant permission to make an application under this section if the court is satisfied that the cooperation relates directly to an offence that is, in the opinion of the court, a serious offence that has been committed or may be committed in the future (whether in this or any other jurisdiction).

        (4)         The chief officer of the law enforcement agency, the DPP and the applicant are parties to the proceedings on the application.

        (5)         In determining a new sentence on an application under this section, the court must have regard to such of the following as may be relevant:

            (a)         the nature and extent of the person's cooperation;

            (b)         the timeliness of the cooperation;

            (c)         the truthfulness, completeness and reliability of any information or evidence provided by the person;

            (d)         the evaluation (if any) by the authorities of the significance and usefulness of the person's cooperation;

            (e)         any benefit that the person has gained or is likely to gain by reason of the cooperation;

            (f)         the degree to which the safety of the person (or some other person) has been put at risk of violent retribution as a result of the person's cooperation;

            (g)         whether the cooperation concerns the offence for which the person is being sentenced or some other offence, whether related or unrelated;

            (h)         whether, as a consequence of the person's cooperation, the person 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;

                  (i)         the nature of any steps that would be likely to be necessary to protect the person on release from prison;

            (j)         the likelihood that the person will commit further offences,

and may have regard to any other factor or principle the court thinks relevant.

        (6)         Except as provided in this section, in determining a new sentence on an application under this section, the court must apply the law that was applicable in relation to the relevant sentence at the time that sentence was imposed (and this subsection applies to an application under this section, whether made or determined before or after the commencement of this subsection).

        (7)         On an application by a person under this section, the court must not impose a sentence that is more severe than the relevant sentence, but the court may extend the non-parole period where the court passes a shorter sentence.

        (8)         In this section—

"chief officer" of a law enforcement agency means—

            (a)         in the case of SA Police—the Commissioner of Police;

            (b)         in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption;

            (c)         in any other case—the person for the time being occupying a position within the agency prescribed by the regulations.