Subdiv 1Procedural provisions

Subdivision 1—Procedural provisions 12—Determination of sentence For the purpose of determining sentence, a court— (a) is not bound by the rules of evidence; and (b) may inform itself on matters relevant to the determination as it thinks fit; and (c) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. 13—Prosecutor to provide particulars of victim's injury etc (1) Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, provide the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre‑sentence report) of— (a) injury, loss or damage resulting from the offence; and (b) injury, loss or damage resulting from— (i) any other offence that is to be taken into account specifically in the determination of sentence; or (ii) a course of conduct consisting of a series of criminal acts of the same or a similar character of which the offence for which sentence is to be imposed forms part. (2) The prosecutor may refrain from providing the court with particulars of injury, loss or damage suffered by a person if the person has expressed a wish to that effect to the prosecutor. (3) If the offence is not an offence in relation to which a victim impact statement may be provided in accordance with section 14, the court must still allow particulars provided under this section to include a victim impact statement unless the court determines that it would not be appropriate in the circumstances of the case (and the other provisions of this Division relating to victim impact statements apply to such a statement as if it were provided under section 14). (4) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section. 14—Victim impact statements (1) A person who has suffered injury, loss or damage resulting from an indictable offence or a prescribed summary offence committed by another may provide the sentencing court with a written personal statement (a victim impact statement) about the impact of that injury, loss or damage on the person and the person's family. (2) Before determining sentence for the offence, the court may, if the person so requested when providing the statement— (a) allow the person an opportunity to read the statement aloud to the court; or (b) cause the statement to be read aloud to the court; or (c) give consideration to the statement without the statement being read aloud to the court. (3) If the court considers there is good reason to do so, it may, in order to assist a person who wishes to read aloud a victim impact statement to the court— (a) allow an audio visual record or audio record of the person reading the statement to be played to the court; or (b) exercise any other powers that it has with regard to a vulnerable witness. (4) Subject to subsection (5) (but despite any other provision of this Act), the court must, if the person so requested when providing the statement, ensure that— (a) the defendant; or (b) if the defendant is a body corporate, a director or some other representative of the body corporate satisfactory to the court, is present when the statement is read aloud to the court. (5) Subsection (4) does not apply if the court is satisfied that special reasons exist which make it inappropriate for the defendant or other person to be present, or that the presence of the defendant or other person may cause a disturbance or a threat to public order and safety (however, in such a case, the court must ensure that the defendant or other person is present by means of an audio visual link or audio link, if such facilities are reasonably available to the court, or that arrangements are otherwise made for an audio visual record of the statement to be made and played to the defendant or other person). (6) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section. prescribed summary offence means— (a) a summary offence that results in the death of a victim or a victim suffering total incapacity; or (b) a summary offence (other than a summary offence of assault) that results in a victim suffering serious harm; serious harm means— (a) harm that endangers a person's life; or (b) harm that consists of loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or (c) harm that consists of serious disfigurement; total incapacity—a victim suffers total incapacity if the victim is permanently physically or mentally incapable of independent function. 15—Community impact statements (1) Any person may make a submission to the Commissioner for Victims' Rights for the purpose of assisting the Commissioner to compile information which may be included in a statement under this section. (2) In proceedings to determine sentence for an offence, the prosecutor or the Commissioner for Victims' Rights may, if they think fit, provide the sentencing court with— (a) a written statement about the effect of the offence, or of offences of the same kind, on people living or working in the location in which the offence was committed (a neighbourhood impact statement); or (b) a written statement about the effect of the offence, or of offences of the same kind, on the community generally or on any particular sections of the community (a social impact statement). (3) Before determining sentence for the offence, the court will cause the statement to be read aloud to the court by the prosecutor, or such other person as the court thinks fit, unless the court determines that it is inappropriate or would be unduly time consuming for the statement to be so read. (4) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section. 15A—Other impact statements (1) If a person has died or suffered an injury resulting in total incapacity as a result of any conduct occurring in connection with the commission of an offence, the sentencing court may, if it considers it appropriate to do so, allow a person who has suffered injury, loss or damage from that death or injury to provide a written personal statement. (2) Subsections (2) to (5) (inclusive) of section 14 apply to a statement provided under this section as if it were provided under that section. (3) Nothing in this section requires the court to have regard to a statement provided under this section in determining sentence. (4) For the purposes of this section, conduct will be taken to occur in connection with an offence if it occurs in circumstances arising out of the offence or as a result of any physical element of the offence or otherwise arises from any act or omission by the offender that is proximate to the offence. 16—Provision and use of statements (1) Subject to this section, a statement to be provided to a court under section 14, 15 or 15A must comply with and be provided in accordance with rules of court. (1a) The court must, on application by the prosecution, adjourn sentencing proceedings for the purposes of allowing a person referred to in section 14(1) to prepare a victim impact statement if— (a) the court is of the opinion that the person has not been provided a reasonable opportunity to prepare a victim impact statement; or (b) the person has requested more time to prepare a victim impact statement. (1b) Subsection (1a) does not apply if the court is satisfied that special reasons exist that justify refusing the adjournment. (1c) A court must not refuse to receive a victim impact statement provided by a person under section 14(1) on the grounds that the statement includes material that is irrelevant or otherwise should not be included in the statement (but nothing in this section requires the court to have regard to any such material in determining sentence). (2) Nothing prevents a statement to be provided to a court under section 14 or 15 from containing recommendations relating to the sentence to be determined by the court. (3) A copy of a statement to be provided to a court under section 14, 15 or 15A must be made available for inspection by the defendant or the defendant's counsel in accordance with rules of court and the defendant is entitled to make submissions to the court in relation to the statement. 17—Pre‑sentence reports (1) A court may, if of the opinion that it would assist in determining sentence, order the preparation of a pre‑sentence report on any or all of the following matters: (a) the physical or mental condition of the defendant; (b) the personal circumstances and history of the defendant; (c) any other matter that would assist the court in determining sentence. (2) However, the court should not order the preparation of a pre‑sentence report— (a) if the information sought by the court cannot be provided within a reasonable time; or (b) if the penalty to be imposed is a mandatory penalty for which no other penalty can be substituted and a non‑parole period is not in question. (3) A pre‑sentence report may be given orally or in writing. (4) A copy of every written pre‑sentence report received by a court must be provided to the prosecutor and to the defendant or the defendant's counsel. (5) The person by whom a pre‑sentence report is given is liable to be examined or cross‑examined on any of the matters contained in the report and, in the case of a written report, must appear before the court for that purpose if requested to do so. (6) If a statement of fact or opinion in a pre‑sentence report is challenged by the prosecutor or the defendant, the court must disregard the fact or opinion unless it is substantiated on oath. 18—Expert evidence (1) If a defendant is to be sentenced for an indictable offence and expert evidence is to be presented to the court by the defendant or the defendant's counsel, written notice of intention to introduce the evidence must be given to the DPP— (a) at least 28 days before the date appointed for submissions on sentence; or (b) if the evidence does not become available to the defence until later—as soon as practicable after it becomes available to the defence. (2) The notice must— (a) set out the name and qualifications of the expert; and (b) describe the general nature of the evidence and what it tends to establish. (3) The court may, on application by a defendant, exempt the defendant from the obligation imposed by this section. (4) If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court. (5) If a defendant fails to comply with a requirement of or under this section, the evidence will not be admitted without the court's permission (but the court cannot allow the admission of evidence if the defendant fails to submit to an examination by an independent expert under subsection (4)). (6) If the DPP receives notice under this section of an intention to introduce expert evidence less than 28 days before the day appointed for submissions on sentence, the court may, on application by the prosecutor, adjourn the sentencing to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence. (7) The court should grant an application for an adjournment under subsection (6) unless there are good reasons to the contrary. (8) The court may, on application by the prosecution, require the defendant to provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the sentencing. 19—Court to inform defendant of reasons etc for sentence (1) A court must, on sentencing a defendant who is present in court (whether in person or by audio visual link or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced. (2) Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency. (3) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section. 20—Rectification of sentencing errors (1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order. (2) The DPP and the defendant are both parties to proceedings under this section. 21—Presence of defendant during sentencing proceedings (1) Subject to the exceptions set out in subsection (2), a defendant who is to be sentenced for an indictable offence must be present when the sentence is imposed and throughout all proceedings relevant to the determination of sentence. (2) The following exceptions apply: (a) the defendant may, with the court's consent, be absent during the whole or part of the proceedings; (b) if facilities exist for dealing with proceedings by means of an audio visual link or audio link, the court may, if of the opinion that it is appropriate in the circumstances to do so, deal with the proceedings by audio visual link or audio link without requiring the personal attendance of the defendant, provided that, in the case of a defendant who is not in custody, the defendant has consented to the use of the link; (c) the court may exclude the defendant from the courtroom if satisfied that the exclusion is necessary in the interests of safety or for the orderly conduct of the proceedings (however, if such an exclusion is made, the court should (if practicable) make arrangements to enable the defendant to see and hear the proceedings by audio visual link). (3) If the defendant is a body corporate, the requirement is satisfied by the presence of a director or some other representative of the body corporate satisfactory to the court (but, in that case, either the prosecutor or the court may waive the requirement). (4) A court may make any order necessary to secure compliance with this section and, if necessary, issue a warrant to have the defendant (or, if the defendant is a body corporate, a director or other representative of the defendant) arrested and brought before the court. (5) This section— (a) does not prevent the passing of sentence in the absence of the defendant in a case where the defendant cannot be found; and (b) does not invalidate a sentence passed in the absence of the defendant. 22—Sentencing of Aboriginal and Torres Strait Islander defendants (1) Before sentencing an Aboriginal or Torres Strait Islander defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal and Torres Strait Islander Justice Officer— (a) convene a sentencing conference; and (b) take into consideration views expressed at the conference. (2) Nothing in subsection (1) is to be taken to require the court to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene a sentencing conference. (3) A sentencing conference must comprise— (a) the defendant and, if the defendant is a child, the defendant's parent or guardian; and (b) the defendant's legal representative (if any); and (c) the prosecutor; and (d) if the victim chooses to be present at the conference—the victim and, if the victim so desires, a person of the victim's choice to provide assistance and support; and (e) if the victim is a child—the victim's parent or guardian. (4) A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) 1 or more of the following: (a) a person regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres Strait Islander elder; (b) a person accepted by the defendant's Aboriginal or Torres Strait Islander community as a person qualified to provide cultural advice relevant to sentencing of the defendant; (c) a member of the defendant's family; (d) a person who has provided support or counselling to the defendant; (e) any other person. (5) A person will be taken to be an Aboriginal or Torres Strait Islander person for the purposes of this section if— (a) the person is descended from an Aboriginal or Torres Strait Islander; and (b) the person regards themself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1 of the parents regards the child as an Aboriginal or Torres Strait Islander; and (c) the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community. (6) In this section— Aboriginal and Torres Strait Islander Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include— (a) assisting the court in sentencing Aboriginal or Torres Strait Islander persons by providing advice on Aboriginal or Torres Strait Islander society and culture; and (b) assisting the court to convene sentencing conferences under this section; and (c) assisting Aboriginal or Torres Strait Islander persons to understand court procedures and sentencing options and to comply with court orders; family includes— (a) the defendant's spouse or domestic partner; and (b) any person to whom the defendant is related by blood; and (c) any person who is, or has been, a member of the defendant's household; and (d) any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances.