Sentencing Act 2017

The Act directly binds every court of criminal jurisdiction in South Australia (s 5 definition of “court”), including the Supreme Court, District Court, Magistrates Court and Youth Court. It applies to the sentencing of adults and, subject to the Young Offenders Act 1993 prevailing in case of conflict (s 6(2)), to youths. When a youth is dealt with as an adult, references to imprisonment are read as detention, prisons as training centres, and the CE as the chief executive responsible for youth justice (s 6(3)).

Offenders are the primary subjects. The Act draws sharp distinctions between ordinary offenders, serious repeat offenders (s 53), recidivist young offenders (s 55), serious firearm offenders (s 50), serious child sex offenders (s 48G), and persons incapable of controlling sexual instincts (s 57). Each category triggers mandatory or presumptive sentencing outcomes.

Victims are given a statutory voice through victim impact statements (s 14), community or social impact statements (s 15), other impact statements (s 15A), and the right to be present when their statement is read (s 14(4)). The Commissioner for Victims’ Rights may compile neighbourhood or social impact statements. Prosecutors must supply particulars of injury, loss or damage (s 13).

Corrections authorities are heavily engaged. The Chief Executive (CE) of the department administering the Correctional Services Act 1982 (or Youth Justice Administration Act 2016 for youths) receives copies of all home detention orders, intensive correction orders and bonds (ss 74, 84, 102). The CE must assign home detention officers (s 75), community corrections officers (ss 85, 107), and is responsible for monitoring, directions, community service placements and breach action. The Parole Board and Training Centre Review Board conduct periodic reviews of detained persons (s 57(15)), report to the Supreme Court on licence and extinguishment applications (ss 48K(5), 48M(5), 59(3)), and may vary or cancel licences (ss 48K(13), 59(10)).

Law enforcement agencies benefit from sentence reductions for cooperation (s 37) but must evaluate usefulness (s 37(3)(e)) and may trigger re-sentencing if undertakings are breached (s 42). The Director of Public Prosecutions is a party to rectification applications (s 20), expert evidence disputes, re-sentencing applications (ss 42-43), and all Supreme Court applications under Divisions 2A and 5.

The Attorney-General may apply for indeterminate detention orders (s 57(3)) and is a party to discharge and licence proceedings. Medical practitioners nominated by the Supreme Court or a prescribed authority must examine offenders and report on capacity to control sexual instincts (ss 48N, 62). Intervention program managers coordinate assessment and delivery of programs (s 5 definition, s 29).

Aboriginal and Torres Strait Islander communities participate through elders, cultural advisers and Justice Officers in sentencing conferences (s 22). Guarantors and sureties may be required for bonds (s 100) and become liable on breach (s 114(1)(b)).

Courts are under a duty to treat the primary purpose of community safety as paramount (s 9), to apply common law principles of proportionality, parity, totality and the prohibition on sentencing for unconvicted offences (s 10(1)), and not to impose imprisonment unless no other penalty is justified or it is necessary for community protection (s 10(2)). When fixing non-parole periods, courts must observe mandatory minima for murder (20 years, s 47(5)(b)), serious offences against the person (four-fifths, s 47(5)(d)), and serious repeat or recidivist offenders (four-fifths, ss 54(1)(b), 55(3)(b)). Reasons must be given for sentence, including any reduction (s 19(1)).

Defendants have a right to be present at sentencing (s 21(1)), subject to limited exceptions, and to be informed of reasons (s 19). They may tender expert evidence provided 28 days’ notice is given to the DPP (s 18(1)), and may apply for exemption. Aboriginal and Torres Strait Islander defendants may request a sentencing conference (s 22(1)), although the court retains discretion not to convene one.

Victims have statutory rights to provide impact statements (s 14), to read them aloud or have them read, to have the offender present (subject to special reasons), and to request adjournment if not given reasonable opportunity to prepare a statement (s 16(1a)). The prosecutor must supply particulars of injury unless the victim objects (s 13(2)).

Offenders subject to home detention or intensive correction orders have duties to remain at approved premises (s 72(1)(a)), obey directions, submit to testing, and refrain from firearms or non-therapeutic drugs. They enjoy limited rights to approved absences for employment, medical treatment or intervention programs. Breach triggers mandatory revocation unless the breach is trivial or excusable (ss 73(2), 83(2)).

Serious child sex offenders and persons detained under s 57 bear the onus of proving they are capable of and willing to control sexual instincts (ss 48B(3), 58(1a), 59(1a)). They have rights to apply for licence or extinguishment after serving minimum periods, to adduce evidence, and to receive copies of medical and board reports (ss 48K(9), 48M(9), 59(5)). The Supreme Court must give paramount weight to community safety but must consider medical reports, board recommendations, costs of supervision and periodic review reports (ss 48K(6), 48M(6), 59(4)).

Probationers under suspended sentences or good behaviour bonds must comply with conditions (ss 96, 97, 98). They may apply to vary or discharge bonds (s 103) or seek waiver of supervision (s 103(5)). Guarantors may be called upon to pay specified sums on breach (s 114(1)(b)).

The CE and assigned officers have duties to assign supervising officers promptly (ss 75, 85, 107), give reasonable directions (ss 88, 108), monitor compliance, and notify courts when community service placements cannot be found (ss 87, 104). Home detention officers may enter residences, telephone employers and question residents without warrant (s 76).

Maximum fines in the absence of a statutory maximum are $75,000 (Supreme Court), $35,000 (District Court) and $10,000 (Magistrates Court) (s 119). Contravention of a home detention order carries a maximum of $10,000 or 2 years’ imprisonment (s 78). Contravention of an intensive correction order is punishable by $2,500 or 6 months’ imprisonment (s 91). Failure to surrender firearms when directed under s 60 or s 101 attracts $10,000 or 2 years (s 60(2)).

Breach of bond conditions can result in activation of a suspended sentence (s 114(1)(d)), with power to reduce the activated term only in special circumstances (s 114(5)(a)), to credit pre-hearing custody (s 114(5)(b)), or to fix a non-parole period even if the activated term is less than 12 months (s 114(5)(c)). Community service orders are enforceable by imprisonment at the rate of one day per 7.5 hours unperformed, capped at 6 months (s 115(2)), or by fine if the offender has means (s 115(8)).

Indeterminate detention under s 57 or s 48I is reviewed annually by the Parole Board or Training Centre Review Board (s 57(15)). Release on licence or extinguishment is not a right; the Supreme Court must be affirmatively satisfied of control of instincts or negligible risk, after receiving at least two independent psychiatric reports (ss 48K(4), 48M(4), 58(2), 59(2)). Cancellation of licence can occur on breach or new offending (ss 48K(21), 59(18)).

Warrants of apprehension and detention may be issued without notice in licence cancellation or breach proceedings (ss 48L, 59A, 77, 90). Police may arrest without warrant on senior officer authorisation where reasonable suspicion of breach exists (ss 48L(1), 59A(1)).

The Act is expressly additional to other sentencing powers (s 7) but prohibits bonds outside its own provisions (s 8). It yields to the Young Offenders Act 1993 and Youth Court Act 1993 in case of conflict (s 6(2)). References to the repealed Criminal Law (Sentencing) Act 1988 are preserved for transitional purposes (Sch 1 cl 2, Sch 2).

Heavy reliance is placed on the Criminal Law Consolidation Act 1935 for definitions of serious offences (ss 48D, 49, 52), hate crime aggravation (s 11(1)(ca)), family violence exceptions (s 48(3)(ab) cross-referencing Evidence Act 1929 ss 34V-34W), and sexual offences triggering indeterminate detention (s 57). The Correctional Services Act 1982 supplies the definition of CE, powers of the Parole Board, electronic monitoring devices (s 4), and post-release supervision. The Bail Act 1985 governs bail during deferral for rehabilitation (s 29(1)).

The Child Sex Offenders Registration Act 2006 consequences are disregarded when sentencing (s 11(4)(b)), as are mandatory non-parole periods when fixing the notional head sentence for serious child sex offenders (s 48I(3)). The Intervention Orders (Prevention of Abuse) Act 2009 and Criminal Procedure Act 1921 supply the templates for intervention and restraining orders that may be issued on sentence (s 28).

Transitional provisions ensure that old sentence reduction rules continue for proceedings commenced before the 2017 summary procedure reforms (Sch 1 cl 2), while new ss 39-40 apply to later proceedings. The Sentencing (Release on Licence) Amendment Act 2018 and 2024 child sex offender amendments contain their own application rules (Sch 1 Part 3, s 48F).

The Act has been amended more than twenty times since 2017. The Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (assented 23 May 2019, commenced immediately) tightened eligibility for home detention and intensive correction, introduced the “special reasons” test limited to advanced age or permanent infirmity (s 71(4)), added presumptive exclusions for serious sexual, organised crime and designated offences, and aligned breach calculations so that credit for time on order runs only from the breach date (ss 73(4a), 83(3)). These changes responded to community concern that serious offenders were serving custodial sentences in the community.

The Statutes Amendment (Sentencing) Act 2020 (commenced 2 November 2020) reformed the guilty plea discount scheme, replacing the former “early” and “late” plea distinctions with more granular timing bands and additional mandatory considerations (ss 39(3a), 40(4a), 40(5)). The aim was to encourage earlier pleas while protecting public confidence.

The Sentencing (Serious Repeat Offenders) Amendment Act 2020 (commenced 14 November 2020) expanded the serious repeat offender net, removed the proportionality principle for a wider class of offences, and increased the mandatory non-parole proportion to four-fifths. It also clarified that recidivist young offenders include all youth convictions, not only those dealt with as adults.

Family violence exceptions to mandatory non-parole periods were inserted in 2020 (s 48(3)(ab)-(3a)) following recommendations that victim conduct or family violence should mitigate in exceptional circumstances.

The Sentencing (Hate Crimes) Amendment Act 2021 added hatred or prejudice based on race, religion, sex, sexual orientation, gender identity, age, intersex variation or disability as an aggravating factor (s 11(1)(ca)), reflecting contemporary recognition of hate-motivated offending.

The Statutes Amendment (Child Sexual Abuse) Act 2021 and subsequent 2022, 2023 and 2024 amendments progressively strengthened child sex offender provisions, culminating in the Sentencing (Serious Child Sex Offenders) Amendment Act 2024 (commenced 28 April 2025). Division 2A now mandates indeterminate sentences for serious child sex offenders who commit triggering offences, creates a two-stage release and extinguishment process, and disapplies ordinary sentencing principles (s 48F). These changes respond to high recidivism rates and community demand for indefinite incapacitation of the highest-risk offenders.

The Victims of Crime (impact statements) amendments in 2024 inserted s 15A and expanded s 16 to prevent refusal of victim impact statements merely because they contain irrelevant material, while requiring adjournment if victims have not had reasonable opportunity to prepare statements. This reflects a policy of centring victim voices.

Because the Act is relatively recent, reported challenges are still emerging. The High Court’s decision in PNJ v The Queen [2009] HCA 6 (cited in the note to s 47(6)) continues to govern the interaction between single sentences under s 26 and mandatory non-parole periods. Lower courts have grappled with the “exceptional circumstances” test for departing below mandatory non-parole floors (s 48(2)(b)). In family violence cases, courts must now admit evidence of such violence when assessing exceptionality (s 48(3a)), a provision inserted after controversy about whether victim conduct could mitigate.

The indeterminate detention regime under both old s 23 of the 1988 Act and new ss 57 and 48I has generated repeated Supreme Court litigation concerning the meaning of “capable of controlling and willing to control sexual instincts” (now defined in s 48B). The onus placed on the offender (s 48B(3)) and the paramount community safety test have been criticised by some as reversing the ordinary presumption of liberty, yet upheld as constitutionally valid protective rather than punitive jurisdiction.

Guilty plea discount litigation has focused on the public confidence limbs in ss 39(4)(a), (h), (i) and 40(5)(a), (i), (j). Appellate courts have emphasised that the statutory factors are mandatory considerations, not a checklist, and that overwhelming prosecution cases or absence of remorse can preclude any discount.

Serious repeat offender declarations under s 53 have produced argument about whether spent convictions or youth convictions count, now resolved by ss 48H and 53(2). The removal of proportionality (s 54(1)(a)) remains controversial among defence practitioners but has survived appellate scrutiny as a legitimate legislative response to recidivism.

Controversy also surrounds the practical availability of home detention and intensive correction for Indigenous offenders. Section 22 sentencing conferences are under-used, and cultural advice is often received only through pre-sentence reports rather than live elder testimony, prompting calls for greater implementation of the Act’s conferencing mechanism.

Most practitioners miss that the primary purpose in s 3 is not merely one factor among many; s 9 makes it the paramount consideration when “determining and imposing the sentence”. Courts have sometimes treated community safety as co-equal with rehabilitation; that is erroneous.

The stepped discount methodology in s 41 is mandatory. Failing to first fix the undiscounted sentence, then the maximum available discount, then the appropriate discount, then apply it, risks appellate intervention even if the final sentence appears reasonable.

For serious child sex offenders (post-28 April 2025), the court must ignore the existence of the indeterminate sentence when deciding whether imprisonment in a correctional facility is warranted (s 48I(1)(a)). This two-stage process is counter-intuitive and easily overlooked.

Section 11(4) prohibits regard to mandatory non-parole periods, registration consequences, or (in child sex registration cases) good character when that character assisted the offending. Yet s 11(5) limits personal circumstances to those causally connected to the offence. The interaction produces subtle but important restrictions on mitigation.

Home detention and intensive correction orders cannot be imposed cumulatively or concurrently with any other custodial sentence except another home detention or intensive correction order (ss 71(2)(d), 81(3)(a)). Partial suspension under s 96(4) or (5) is a distinct mechanism that must be used instead.

The firearms prohibition conditions (ss 72(1)(e), 82(1)(e), 96(2)(a)) can only be varied or revoked on oath establishing “cogent reasons” and no undue risk (ss 72(4), 82(6), 103(4)). Courts and boards applying the test have sometimes treated medical need or family inheritance as sufficient; appellate authority suggests the threshold is high.

Periodic reviews under s 57(15) generate reports that become evidence on licence applications. Failure to tender the most recent review report can invalidate the Supreme Court’s decision.

Transitional provisions are treacherous. Old discount rules still apply to proceedings commenced before the 2017 reforms (Sch 1 cl 2). The 2024 child sex offender amendments do not apply to youths unless sentenced as adults (s 48E), and disapply most of the Act’s ordinary sentencing machinery (s 48F).

Practitioners should maintain a checklist keyed to the Act’s structure. When appearing on sentence:

1. Identify the applicable offender category (ordinary, serious repeat, serious child sex, firearm, etc.) before opening submissions. This determines whether proportionality is available (s 54(1)(a)), whether suspension or home detention is possible (ss 71(2), 81(3), 96(3)), and whether indeterminate sentencing is mandatory (s 48I).

2. Address the primary purpose first (s 9). Submissions that leap to rehabilitation or personal factors without anchoring in community safety are likely to be rejected.

3. For guilty pleas, calculate the exact date of first court appearance, committal, arraignment and trial listing. Map the plea onto the precise band in s 39 or s 40, then address each mandatory factor in s 39(4) or s 40(5) in turn. Prepare affidavit evidence if claiming inability to plead earlier because of remote location or language barriers (ss 39(3a), 40(4a)).

4. If seeking a discount for cooperation, obtain a sealed s 37 declaration and ensure the law enforcement agency’s evaluation (s 37(3)(e)) is before the court. Warn the client that breach of undertaking triggers re-sentencing to the undiscounted term (s 42).

5. For home detention or intensive correction applications, obtain a favourable pre-sentence report addressing residence suitability, victim impact, and resource availability (ss 71(3), 81(4)). File evidence on oath if seeking to overcome a statutory exclusion (e.g. “special reasons” for serious sexual offences under s 71(4)).

6. In Supreme Court applications under Divisions 2A or 5, ensure at least two independent medical reports are obtained through the Court’s nominated practitioners (ss 48N, 62). Brief the reports’ authors on the statutory test in s 48B. The Parole Board report is mandatory; request it early.

7. When drafting bonds, list every condition verbatim from the Act or approved form. Failure to include the firearms and gunshot residue conditions (ss 96(2), 98) renders the bond defective.

8. On breach proceedings, lead evidence of the exact date of first breach; credit for time served on order runs only from that date (ss 73(4a), 83(3)). Argue triviality or proper grounds for excuse (ss 73(2), 83(2), 114(3)) with concrete examples rather than general character evidence.

9. Keep a current copy of the Act annotated with all amending Acts and commencement dates. Transitional provisions change the applicable discount scheme or non-parole rules depending on when proceedings were commenced.

10. For corporate defendants, ensure a director or satisfactory representative appears (s 21(3)). Failure invalidates the sentencing process.

Compliance also requires ongoing liaison with the CE’s office for community service availability (ss 87, 104) and with intervention program managers for assessment and reporting (s 29). Regular training on the evolving case law interpreting “exceptional circumstances”, “appreciable risk” and “public confidence” is essential for both prosecution and defence counsel.