Sections 10(2)(a) and 10(2)(b) of the Sentencing Act 2017 (SA) prohibit a court from imposing a sentence of imprisonment on a defendant unless it is satisfied that the seriousness of the offence warrants imprisonment as the only penalty, or where imprisonment is required to protect the safety of the community.

Jurisdictional limits on sentences

Where a person is convicted in the Magistrates Court the maximum imprisonment a magistrate can give is five years for one offence and ten years for more than one offence, even if the maximum period of imprisonment for the offence/s is over those limits [see Magistrates Court Act 1991 (SA) s 9]. In the higher courts, a judge can impose a sentence up to the maximum for the offence.

Sentences backdated for time already spent

If the person to be sentenced has already been in custody for the offence, the court will usually back date the sentence to commence from that date [Sentencing Act 2017 (SA) s 44(2)(b)]. If this is not possible, then the Court will take into account that time and deduct it from the sentence [s 44(2)(a)]. Where the person has not been in custody, the sentence of imprisonment usually starts from the day on which the defendant is sentenced [s 42(3)(a)].

Single penalty for multiple offences

Where the defendant is convicted of more than one offence the court can (but is not obligated to) impose one sentence to cover all offences [see Sentencing Act 2017 (SA) s 26(1)]. Where one sentence is imposed, the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates [s 26(1)].

However, a single sentence cannot be imposed on some offences (prescribed designated offences), being manslaughter or causing serious harm [see ss 26(2) and 26(3); section 96 for definition of prescribed designated offences].

If any of the offences in respect of which a single sentence is being imposed involved different victims or were committed on different occasions, the court must indicate the sentence that would have been imposed in respect of each such offence had the single penalty not been applied [s 26(2a)].

Where the court imposes separate sentences for each offence the court can order that the sentences be served concurrently (at the same time), or may increase the time the person will spend in prison by directing that the sentences be served cumulatively (one after the other). There are some limited offences where sentences must be served cumulatively (for example, Offences relating to human remains).

Setting of non-parole periods

When the sentence of imprisonment is for twelve months or more, the court sets a non-parole period. The sentence of imprisonment is referred to as the head sentence, which is the maximum time that the person can be required to serve in custody. The non-parole period is the minimum time that the person must actually serve in custody before being released on parole. When the sentence of imprisonment is less than twelve months, there is no non-parole period set and the person must serve the actual time imposed.

See Sentencing Act 2017 (SA) s 47.

Sentences suspended in part

If the sentence is more than three months but less than one year, then the Court can consider whether the defendant should serve some of that time (not less than one month) and release them on a suspended sentence for the remainder of that time, while subject to a good behaviour bond [see Sentencing Act 2017 (SA) s 96(4)].