Sentencing Purposes, Principles and Factors
The primary purpose in sentencing a defendant is to protect the safety of the community [Sentencing Act 2017 (SA) s 3]. Additionally, the court can take into account a number of sentencing principles and factors when determining sentence. The relevant sentencing factors are the same regardless of whether the defendant pleads guilty or is found guilty. The sentencing factors are set out in section 11 of the Sentencing Act 2017 (SA):
- The nature, circumstances, and seriousness of the offence [s 11(1)(a)];
- 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 [s 11(1)(b)];
- 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 [s 11(1)(c)];
- 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, but not limited to, people of a particular race, religion, sex, sexual orientation, gender identity or age, or people having an intersex variation or a particular disability) [s 11(1)(ca)].
- The defendant's character, general background and offending history [s 11(1)(d)];
- The likelihood of the defendant re-offending [s 11(1)(e)];
- The defendant's age, and physical and mental condition (including any cognitive impairment) [s 11(1)(f)];
- The extent of the defendant's remorse for the offence, having regard in particular as to whether -
- the defendant has provided evidence that they have accepted responsibility for their actions [s 11(1)(g)(i)]; and
- the defendant has acknowledged any injury, loss or damage caused by their actions, or voluntarily made reparation for any such injury, loss or damage, or both [s 11(1)(g)(ii)];
- The defendant's prospects of rehabilitation [s 11(1)(h)].
The court is also required to apply general principles of sentencing, being the common law concepts of proportionality, parity and totality [see Sentencing Act 2017 (SA) s 10].
If the court is sentencing an offender in relation to a child sexual offence, then the court must have regard to the sentencing practices, principles and guidelines applicable at the time of sentencing (not at the time of the offence) [Sentencing Act 2017 (SA) s 68].
The court cannot sentence a defendant for committing an offence that they were not convicted of [s 10(1)(d)], nor can a term of imprisonment be imposed unless the seriousness of the offence justifies the penalty, or imprisonment is required to protect the safety of the community [see s 10(2)].
In determining the sentence for an offence, the court must not have regard to the following:
- the fact that a mandatory minimum non-parole period is prescribed in respect of the offence under this Act or another Act [s 11(4)(a)];
- any consequences that may arise under the Child Sex Offenders Registration Act 2006 (SA) [s 11(4)(b)];
- the good character of lack of previous convictions of the defendant is -
- the offence is a class 1 or class 1 offence within the meaning of the Child Sex Offenders Registration Act 2006 (SA) [s 11(4)(c)(i)]; and
- the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in committing the offence [s 11(4)(c)(ii)].
- the fact that the defendant:
- has not participated in, or had the opportunity to participate in, an intervention order program [s 11(7)(a)]; or
- performed badly in, or failed to make progress in, such a program [s 11(7)(b)].
However, in sentencing a defendant charged with contravening an intervention order under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), the court can consider whether the defendant has participated in, or performed badly in, an intervention order program as section 11(7) of the Sentencing Act 2017 (SA) does not apply [see s 31(4)].
Sentencing Purposes, Principles and Factors : Last Revised: Wed Dec 8th 2021
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