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Sentencing in South Australia

What is the purpose of sentencing and how do South Australian courts administer what is considered a fair sentence?

One way to consider sentencing is the balancing of interests within the law. There are a number of competing interests which a judge or magistrate must take into account when imposing a sentence. 

Purpose of sentencing

The Criminal Law (Sentencing Act) 1988 sets out the purposes of sentencing and some of the objectives to be considered when imposing a sentence. This includes:

  • Punishment - refers to the consequences to the offender for engaging in criminal behaviour and can include a fine, criminal conviction, suspended sentence or a term of imprisonment.
  • Rehabilitation - means imposing a sentence that will help to change the offender's behaviour with the aim of reducing the likelihood that he or she will commit such an offence again.
  • Specific deterrence - means discouraging the particular offender from engaging in criminal behaviour in the future.
  • General deterrence - refers to the idea that potential offenders in the community will be discouraged from committing criminal offences where they see the kinds of penalties that are imposed for engaging in criminal behaviour.
  • Community Protection - means both protecting the community from the offender and from crime generally.

Offenders are sentenced in court and the types of criminal cases a court may hear will depend on the court. For more serious cases the District or Supreme Court will impose a sentence. However, for less serious or minor offences the cases will be dealt with in the Magistrates Court.

How does a judge or a magistrate work out what is a fair sentence?

Legislation specifies the matters that courts must take into account when determining an appropriate sentence. These include: 

  • The nature and circumstances of the offence: The types of offences which are committed vary greatly as do the circumstances in which they occur and the nature of their seriousness. For example, some crimes are committed by one person while others are committed by a group of people. Some offences are planned in detail whilst others occur on the spur of the moment. 
  • The criminal past of the defendant: The number of offences previously committed by the offender and their seriousness can indicate whether previous attempts at rehabilitation or specific deterrence have been successful. An offender with many prior convictions who has failed to respond to previous court orders will generally be treated more severely than a young first time offender who, if given a chance, might refrain from offending again in the future.
  • The victim’s circumstances: In determining an appropriate penalty the judge or magistrate must consider the seriousness of the offence and may weigh up the vulnerability of the victim at the time of the offence along with the degree of loss or the extent of injury to the victim.
  • The actions of the defendant: This includes whether the offender has shown contrition for the offence such as pleading guilty at the earliest opportunity, whether the offender has made any form of restitution for a victim’s loss such as the cost of medical expenses and the extent to which the offender has cooperated with law enforcement agencies investigating the particular offence or other offences. 
  • The offender’s personal circumstances: The character, previous behaviour (including any criminal record), cultural background, age, means and physical or mental condition of the offender are also likely to be considered. The judge or magistrate may also consider the effect that any sentence might have on the offender's family or dependants. 

There are three arms of government that produce sentencing outcomes

Parliament creates legislation that creates offences for certain anti-social or criminal behaviour and sets out the penalties to be imposed by a court for those people who choose to engage in such behaviour and break the law. Parliament also decides the sentencing options available to a judge or magistrates during the sentencing process and the specific factors which they must take into account when deciding an appropriate penalty. 

Courts interpret the laws within the framework set by Parliament and apply them to each particular case. In order to ensure that the judges and magistrates who perform sentencing functions make decisions that are fair and impartial it is a critical component of the political system that the courts are independent from the other two arms of government.

The executive (or government) controls the correctional authorities and the parole boards which are an integral part of the sentencing process particularly where judges or magistrates impose sentences with a supervision component. The correctional authorities run community corrections programs, supervise offenders subject to community orders, run prisons and control the movements of people in prisons.