Subdiv 4Sentencing reductions

Subdivision 4—Sentencing reductions 36—Application of Subdivision Except where the contrary intention expressly appears, this Subdivision is in addition to, and does not derogate from, a provision of this Act or any other Act— (a) that expressly prohibits the reduction, mitigation or substitution of penalties or sentences; or (b) that limits or otherwise makes special provision in relation to the way a penalty or sentence for a particular offence under that Act may be imposed. 37—Reduction of sentences for cooperation etc with law enforcement agency (1) A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation— (a) relates directly to combating serious and organised criminal activity; and (b) is provided in exceptional circumstances; and (c) contributes significantly to the public interest. (2) In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances. (3) In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant: (a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea; (b) the nature and extent of the defendant's cooperation or undertaking; (c) the timeliness of the cooperation or undertaking; (d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant; (e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking; (f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking; (g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking; (h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise); (i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions; (j) the nature of any steps that would be likely to be necessary to protect the defendant on release from prison; (k) the likelihood that the defendant will commit further offences, (4) In this section— serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935. 39—Reduction of sentences for guilty plea in Magistrates Court etc (1) This section applies— (a) if the offence is a summary offence; or (b) if the sentencing court is sentencing in relation to a minor indictable offence that has been tried in the same way as a summary offence; or (c) in any other circumstances prescribed by the regulations. (2) Subject to this section, if a defendant has pleaded guilty to an offence or offences— (a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%; (b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but— (i) if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or (ii) in any other case—before the commencement of the trial for the offence or offences, the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%; (c) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that the defendant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%; (d) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%. (3) If— (a) a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and (b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because— (i) the court did not sit during that period; or (ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or (iii) the court did not list the defendant's matter for hearing during that period; or (iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or (v) the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. (3a) Without limiting subsection (3), if— (a) the maximum reduction available under subsection (2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the period specified in that subsection (the designated period); and (b) the defendant pleads guilty no more than 14 days after the expiration of the designated period; and (c) the court is satisfied that the defendant was unable to obtain legal advice within the designated period as a result of— (i) the defendant residing in a remote location; or (ii) the defendant leading an itinerant lifestyle; or (iii) communication difficulties arising from the defendant being unable to speak reasonably fluent English, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the designated period. (4) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant: (a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice; (b) the stage in the proceedings for the offence at which the defendant first indicated the defendant's intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings); (c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged; (d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences; (e) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings; (f) whether at any stage in the proceedings for the offence— (i) the defendant disputed the factual basis of the plea; and (ii) a hearing occurred in relation to the dispute; and (iii) the dispute was not resolved in favour of the defendant; (g) if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted; (h) whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice; (i) whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice, (5) For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant. 40—Reduction of sentences for guilty pleas in other cases (1) This section applies to a court sentencing a defendant for an offence other than an offence described in section 39(1). (2) If— (a) a defendant in any proceedings is pleading guilty to more than 1 offence; and (b) this section applies to at least 1 of the offences, this section will be taken to apply to all of the offences (despite section 39(1)). (3) Subject to this section, if a defendant has pleaded guilty to an offence or offences— (a) not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 25%; or (ii) in any other case—up to 35%; or (b) more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant's committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 15%; or (ii) in any other case—up to 25%; or (c) during the period commencing on the day after the defendant's committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 10%; or (ii) in any other case—up to 15%; or See also section 110(3) of the Criminal Procedure Act 1921. (d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by— (i) in the case of a serious indictable offence—up to 5%; or (ii) in any other case—up to 10%; or (e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant's trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%. (4) If— (a) a maximum reduction available under subsection (3) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and (b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because— (i) the court did not sit during that period; or (ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or (iii) the court did not list the defendant's matter for hearing during that period; or (iv) the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period; or (v) after the making of the charge determination (within the meaning of section 106 of the Criminal Procedure Act 1921)—the prosecution was, for any reason outside of the control of the defendant, unable to finalise negotiations with the defendant in relation to the plea during that period, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. (4a) Without limiting subsection (4), if— (a) the maximum reduction available under subsection (3)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the period specified in that subsection (the designated period); and (b) the defendant pleads guilty no more than 14 days after the expiration of the designated period; and (c) the court is satisfied that the defendant was unable to obtain legal advice within the designated period as a result of— (i) the defendant residing in a remote location; or (ii) the defendant leading an itinerant lifestyle; or (iii) communication difficulties arising from the defendant being unable to speak reasonably fluent English, the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the designated period. (5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant: (a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice; (b) the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings); (c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged; (d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences; (e) if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant's control—that fact; (f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings; (g) whether at any stage in the proceedings for the offence— (i) the defendant disputed the factual basis of the plea; and (ii) a hearing occurred in relation to the dispute; and (iii) the dispute was not resolved in favour of the defendant; (h) if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant's sentence relates—that fact, and the period of time for which the concealment persisted; (i) whether the prosecution's case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice; (j) whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant's sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice, (6) For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant. (7) Where proceedings have been instituted in a superior court by the DPP laying an information ex officio in accordance with section 103 of the Criminal Procedure Act 1921, this section applies in relation to those proceedings with the modifications prescribed by the regulations. (8) In this section— committal appearance has the same meaning as in section 109 of the Criminal Procedure Act 1921; serious harm has the same meaning as in section 21 of the Criminal Law Consolidation Act 1935; serious indictable offence means an offence that is— (a) a serious offence of violence for which the maximum penalty prescribed is, or includes, imprisonment for at least 5 years; or (b) a serious sexual offence for which the maximum penalty prescribed is, or includes, imprisonment for at least 5 years; or (c) any other offence prescribed by the regulations for the purposes of this definition; serious offence of violence means— (a) an offence under section 11, 13, 13A, 19A(1), 19AB(1), 23, 29(1), 29(2), 29A(1) or 31(1) of the Criminal Law Consolidation Act 1935; or (b) an offence under section 14 of the Criminal Law Consolidation Act 1935 where the victim died or suffered serious harm; or (c) an offence under section 19A(3) or 19AB(2) of the Criminal Law Consolidation Act 1935 where serious harm was caused to a person; or (d) an offence under a corresponding previous enactment substantially similar to an offence referred to in any of the preceding paragraphs; or (e) an attempt to commit or an assault with intent to commit any of the offences referred to in any of the preceding paragraphs; (a) an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63AA, 63A, 63AAB, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935; or (b) an offence under a corresponding previous enactment substantially similar to an offence referred to in the preceding paragraph; or (c) an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding paragraphs. 41—Application of sentencing reductions (1) For the purpose of applying section 37, 38, 39 or 40 in sentencing a defendant for a particular offence, the sentencing court must— (a) first determine the sentence that the court would apply but for the existence of those provisions; and (b) then determine the maximum percentage reduction that is applicable to the sentencing in accordance with those provisions; and (c) then determine the percentage reduction that is, in the opinion of the court, appropriate in the particular case (being not more than the maximum percentage determined in accordance with paragraph (b)); and (d) finally, apply the percentage reduction determined in accordance with paragraph (c) to the sentence determined in accordance with paragraph (a). (2) A sentencing court that wants to apply section 26 to sentence a defendant to a single penalty for more than 1 offence must, if the court would otherwise be required to apply section 37, 38, 39 or 40 in sentencing the defendant for any 1 or more of those offences (the discounted offences), determine, in accordance with subsection (1), the appropriate sentence for each discounted offence before applying section 26 to determine the total sentence (and for the purposes of section 26, a reference to the maximum penalty that could be imposed in respect of an offence will, in the case of each discounted offence, be a reference to the sentence determined, in accordance with subsection (1), for that discounted offence). (3) Nothing in this Subdivision affects the operation of section 23, 24 or 25. 42—Re‑sentencing for failure to cooperate in accordance with undertaking under section 37 (1) This section applies if— (a) a person is currently serving a sentence of imprisonment for an offence or offences that was reduced by the sentencing court under section 37 (the relevant sentence); and (b) the person has failed to cooperate with a law enforcement agency in accordance with the terms of an undertaking given by the person under that section. (2) The DPP may, with the permission of the court that imposed the relevant sentence on the person, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's failure to cooperate with the law enforcement agency in accordance with the terms of an undertaking given by the person under section 37. (3) The DPP, the chief officer of the law enforcement agency and the person are parties to the proceedings on the application. (4) Nothing in this section authorises a court to impose a new sentence that would exceed the sentence that would, but for the reduction given under section 37, have been imposed by the sentencing court under that section. 43—Re‑sentencing for subsequent cooperation with law enforcement agency (1) This section applies to a person if— (a) the person is currently serving a period of imprisonment for an offence or offences (the relevant sentence); and (b) the person has cooperated with a law enforcement agency. (2) A person to whom this section applies may, with the permission of the court that imposed the relevant sentence, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's cooperation with the law enforcement agency in accordance with this section. (3) The court may only grant permission to make an application under this section if the court is satisfied that the cooperation relates directly to an offence that is, in the opinion of the court, a serious offence that has been committed or may be committed in the future (whether in this or any other jurisdiction). (4) The chief officer of the law enforcement agency, the DPP and the applicant are parties to the proceedings on the application. (5) In determining a new sentence on an application under this section, the court must have regard to such of the following as may be relevant: (a) the nature and extent of the person's cooperation; (b) the timeliness of the cooperation; (c) the truthfulness, completeness and reliability of any information or evidence provided by the person; (d) the evaluation (if any) by the authorities of the significance and usefulness of the person's cooperation; (e) any benefit that the person has gained or is likely to gain by reason of the cooperation; (f) the degree to which the safety of the person (or some other person) has been put at risk of violent retribution as a result of the person's cooperation; (g) whether the cooperation concerns the offence for which the person is being sentenced or some other offence, whether related or unrelated; (h) whether, as a consequence of the person's cooperation, the person would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions; (i) the nature of any steps that would be likely to be necessary to protect the person on release from prison; (j) the likelihood that the person will commit further offences, (6) Except as provided in this section, in determining a new sentence on an application under this section, the court must apply the law that was applicable in relation to the relevant sentence at the time that sentence was imposed (and this subsection applies to an application under this section, whether made or determined before or after the commencement of this subsection). (7) On an application by a person under this section, the court must not impose a sentence that is more severe than the relevant sentence, but the court may extend the non‑parole period where the court passes a shorter sentence. (8) In this section— chief officer of a law enforcement agency means— (a) in the case of SA Police—the Commissioner of Police; (b) in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption; (c) in any other case—the person for the time being occupying a position within the agency prescribed by the regulations.