Sentencing Regulations 2018

Ex officio information: A prosecution initiated directly in a superior court without a prior preliminary examination or committal proceeding in the Magistrates Court. It bypasses the normal filter of committal and gives the DPP a fast track to trial. Regulation 6 deals exclusively with this procedural context.

Sentencing discount: The reduction in sentence a court may grant when a defendant pleads guilty. Section 40 of the Sentencing Act 2017 sets the general framework; regulation 6 modifies it for ex officio cases by substituting different percentage caps and time windows. The core concept is a sliding scale: earlier pleas attract larger potential discounts. For ex officio cases, the scale is truncated because there is no committal stage - the first available plea is after arraignment in the superior court. The discount ceiling for serious indictable offences is capped at 25% for a plea within 4 weeks of the first arraignment date and 15% thereafter. For non serious indictable offences, the caps are 35% and 25% respectively. This creates a strong incentive for early guilty pleas but also a potential trap: if the defence has not yet received sufficient evidence from the prosecution within that 4 week window, the discount is effectively eroded.

Prescribed authority: A person designated to perform specific functions under the Act. Regulation 4 designates the Clinical Director of Forensic Mental Health Service South Australia. This means that only that office holder can exercise powers such as ordering psychiatric reports or making assessments under Part 3 Division 5. It centralises forensic mental health decisions in one role, which may improve consistency but also creates a single point of vulnerability if the office is vacant or the director is unavailable.

Additional charges: Section 32 of the Act allows a prosecutor to file a list of additional charges against a defendant after the primary charges have been laid, without starting fresh proceedings. Regulation 5 expands who may do this to include police prosecutors, subject to restrictions. The concept is procedural efficiency - adding charges on the same information rather than commencing separate proceedings. The restrictions in regulation 5(2) prevent police from adding major indictable offences or charges that would interfere with the DPP’s cases, preserving the DPP’s primacy over serious prosecutions.

Surrendered item: Defined in regulation 7(14) as a firearm, ammunition or any part of a firearm surrendered pursuant to a direction under section 60(1) (release on licence) or section 96(2)(a) (bond). It does not include items surrendered under other provisions of the Act, meaning the regulatory regime is limited to those two triggering provisions. The item remains property of the surrendering person but is held by the Commissioner of Police pending cessation of the relevant condition, forfeiture, or return.

Conditional release: Defined broadly in regulation 7(14) to cover bail, bonds, home detention, intensive correction orders, licences, parole under the Correctional Services Act 1982, and youth detention releases. This comprehensive definition ensures that the surrendered item regime applies across all forms of conditional release that include a firearms prohibition condition.

Restitution order: An order under section 126 of the Act requiring a person to return property to a victim or pay compensation. Regulation 8 deals only with enforcement: the fees for issuing, serving and executing an order under section 126(2)(b), which is the power for the court to direct that property be seized and delivered to the victim. The concept is that the victim bears the upfront cost of enforcement but may recover those costs through the order, though the regulation does not specify that.

The Regulations directly affect at least four distinct groups.

Defendants facing ex officio informations in the Supreme Court or District Court are the primary subjects of regulation 6. Their sentencing outcomes depend on when they plead guilty relative to a fixed arraignment date, but also on whether the DPP has disclosed evidence early enough. The regulation compels the court to consider the timing of prosecution disclosure - so defendants who receive late evidence may have an argument that the discount period should not run against them. In practice, this affects persons charged with serious offences (often drug trafficking, serious fraud, or organised crime) where the DPP uses ex officio informations to bypass committal. These defendants face a compressed decision window and lower maximum discounts than defendants in ordinary proceedings, who may secure up to a 40% discount for an early plea under the primary Act.

Police prosecutors are granted new authority under regulation 5 to sign lists of additional charges, but only for non major indictable offences and only if the charges do not interfere with DPP prosecutions. This affects operational policing: it allows frontline officers to add charges without DPP sign off, but creates a risk that police may overuse the power or inadvertently conflict with a DPP prosecution. The restriction means police must check whether the DPP is already conducting a prosecution involving those charges, which adds an administrative layer.

The Commissioner of Police is given extensive powers and obligations under regulation 7. The Commissioner must retain surrendered items, send notices, determine whether to return or forfeit, and can recover storage costs. This creates a significant administrative burden on SAPOL: they must maintain secure storage for firearms and ammunition, track conditions imposed by courts, monitor when those conditions end, and issue notices. The Commissioner also bears the cost of storage until recovery from the person, and the risk of forfeiture if not collected. There is fiscal incentive to forfeit items quickly rather than facilitate return, especially given no compensation is payable.

Persons subject to court orders requiring surrender of firearms are directly affected by regulation 7. They must physically hand over their property (likely including valuable firearms) and then navigate the return process. They must affirmatively notify the Commissioner when their conditional release, bond or order ends, and must collect the item within three months of a written notice. If they lack a firearms licence or are otherwise prohibited from possessing firearms (for example due to a domestic violence order), the Commissioner can refuse return and the item is effectively forfeited. Even if they regain the right to possess firearms, the three month window may be tight if they are incarcerated or unaware of the notice. No compensation is payable for forfeiture.

Victims seeking enforcement of restitution orders are affected by regulation 8: they must pay the prescribed fees for the sheriff to locate, value and seize property. The fees are set by reference to the Sheriff’s Act 1978, but the regulation does not provide for state subsidisation. This means victims effectively bear the cost of enforcement, which may deter enforcement of small restitution orders.

The Clinical Director of Forensic Mental Health Service South Australia is indirectly affected as the prescribed authority under regulation 4, though the regulation does not impose any duties - it merely identifies who may act under Part 3 Division 5. The Director’s workload and discretion are shaped by the volume of court ordered assessments.

Duties on police prosecutors: Under regulation 5(2), a police prosecutor must not sign a list of additional charges if the charges relate to a major indictable offence or will affect the prosecution of any offence by the DPP. This is a negative duty (a prohibition) rather than a positive obligation to file charges. It creates a legal boundary that, if crossed, could render the additional charges invalid or subject to challenge.

Duties on the Commissioner of Police: Regulation 7 imposes a series of duties. The Commissioner must retain a surrendered item until it is forfeited, returned, or taken under another Act (subregulation 2). The Commissioner must return the item if notified or otherwise aware that the relevant condition is no longer in effect (subregulation 5). The Commissioner must give written notice specifying the location, the collection period (three months), the requirement for firearms authorisation, and the consequences of non collection (subregulation 6). If refusing return, the Commissioner must give reasons in writing and, in the case of refusal due to a conditional release firearms prohibition, explain that the item is deemed surrendered under the original direction and will be dealt with accordingly (subregulations 7 and 9). The Commissioner may charge storage costs (subregulation 10). These duties are structured to put the onus on the surrendering person to initiate return; the Commissioner need not proactively check conditions.

Rights of persons who surrendered firearms: Regulation 7(3) and (4) gives the person the right to notify the Commissioner when the condition requiring surrender is discharged or revoked. This notification right is not a duty - the person may choose not to notify - but non notification means the Commissioner may never become aware that the condition has ended, and the item remains retained indefinitely. The person also has the right to collect the item within the notice period (three months) and to receive a notice setting out the details. However, the right to return is contingent on holding necessary authorisations under the Firearms Act 2015. If the person does not hold such authorisation, the Commissioner can refuse return and the item is forfeited automatically after three months (subregulation 8). There is no right to compensation for forfeiture (subregulation 12). The person has a right to be given notice before forfeiture, but not a right to be heard.

Rights of defendants in ex officio cases: Regulation 6(3a) requires the court, when determining the sentencing discount under the modified regime, to take into account when the prosecution provided information, material or evidence to the defence, the time reasonably required for the defence to consider it, and any other matter the court considers appropriate. This gives defendants a statutory ground to argue that the discount should not be reduced if the prosecution disclosed late. It creates a right to have the timeliness of disclosure considered.

Duties on the court: The court must apply the modified discount percentages in ex officio cases under regulation 6(1). It must also take into account the factors in regulation 6(3a). If the ex officio information also includes offences that were committed to the superior court for trial after committal proceedings, the modified regime does not apply to those committed offences - the court must revert to the standard section 40 discount regime for those counts (regulation 6(2)).

Enforcement of restitution orders: The prescribed fees are a duty on the person seeking enforcement (the judgement creditor) to pay, but the regulation does not specify who bears the cost - it merely sets the amounts. The Sheriff’s office may require upfront payment before executing the order, which effectively creates a cost barrier.

The Regulations themselves do not create criminal penalties. Instead, they structure non compliance consequences through forfeiture, loss of sentencing discounts, and cost recovery.

Forfeiture of surrendered items: Under regulation 7(8), if a surrendered item is not collected within three months of the notice date, or if the person does not at that time hold the necessary firearms authorisation, the item is forfeited to the Crown by force of the regulation. This is automatic and requires no court order. The regulation explicitly excludes compensation (subregulation 12). This is effectively a penalty for failing to collect the property or for lacking a firearms licence. It operates as a strict liability civil forfeiture: no fault or intent is required. The item is simply lost. Given that the item may be a valuable firearm (potentially worth thousands of dollars), this is a significant enforcement mechanism that the state can use without any judicial oversight.

Recovery of storage costs: Regulation 7(10) states the Commissioner of Police may recover from the person who surrendered the item the reasonable costs incurred in connection with storage. This is a civil debt, potentially enforceable through debt recovery proceedings. There is no cap on storage duration or total costs, meaning a person who fails to collect promptly could face mounting charges. The regulation does not require the Commissioner to warn the person that storage costs are accruing, nor to specify the rate. This creates uncertainty for the person about the ultimate financial burden.

Loss of sentencing discount: The real penalty under regulation 6 is the loss of a potential sentence reduction. If a defendant pleads guilty after the four week window from the first arraignment date, the maximum discount drops from 25% (serious indictable) to 15%, or from 35% (other) to 25%. The court has discretion to impose a discount below those caps based on the factors in regulation 6(3a), but the upper bound is reduced. This is not a penalty in the criminal sense, but it is a quantifiable increase in sentence length that flows from the timing decision. The defendant has no right to the discount; the court ‘may’ reduce the sentence subject to the caps.

Absence of penalty for non compliance by police prosecutors: Regulation 5 prohibits police prosecutors from signing additional charges in certain circumstances, but the regulation does not specify what happens if a police prosecutor breaches the restriction. The likely consequence is that the additional charges are invalid or subject to stay, but the regulation is silent. This is a gap that could lead to litigation over the validity of charges filed by police without DPP oversight.

Enforcement of restitution orders: Regulation 8 sets fees but does not create penalties for non payment. The enforcement is through the Sheriff’s Act 1978, which has its own penalties for obstructing enforcement. The regulation merely adds a cost layer.

The Regulations are subordinate to the Sentencing Act 2017 (the primary Act). Every regulation expressly references a section of that Act: regulation 5 refers to section 32, regulation 6 to section 40, regulation 7 to sections 60, 92, 96 and 101, and regulation 8 to section 126. The Regulations cannot override the primary Act; they can only prescribe matters that the Act permits to be prescribed. If the Act is amended, the regulations may become inconsistent and need amending or revoking.

Regulation 6 interacts heavily with the Criminal Procedure Act 1921, specifically section 103 (ex officio informations) and Part 5 Division 3 (committal proceedings). The regulation creates a distinct discount regime only for proceedings instituted by ex officio information under that provision. It also distinguishes between cases where committal proceedings have occurred (but the information was rejected) and where no committal proceedings happened at all. This means practitioners must analyse whether the charges were subject to committal under the Criminal Procedure Act 1921.

Regulation 7 interacts with the Firearms Act 2015 in multiple ways. The definition of surrendered item includes firearms, ammunition or parts of firearms. The return of a surrendered item is conditional on the person holding the necessary authorisation under the Firearms Act 2015 - typically a firearms licence or permit. If the person is disqualified from holding a licence under that Act (due to a court order or criminal history), the Commissioner can refuse return and the item is forfeited. The Firearms Act 2015’s prohibition on unauthorised possession is imported directly into this regulation. Additionally, regulation 7(11) states that the regulation is in addition to and does not derogate from the operation of any other Act or law, preserving the operation of the Firearms Act 2015, the Criminal Law Consolidation Act 1935 (firearms offences), and common law principles of bailment or conversion.

Regulation 7 also interacts with the Bail Act 1985 (defined as part of conditional release), the Correctional Services Act 1982 (parole or home detention), and the Young Offenders Act 1993 (release from detention). The definitions in regulation 7(14) ensure that surrendered items are not only those under the Sentencing Act 2017 but also under corresponding provisions in those earlier Acts, providing continuity across different release regimes.

Regulation 8 interacts with the Sheriff’s Act 1978. The fees for issuing, serving and executing a restitution order are pegged to fees prescribed under that Act for similar work. This means the Sheriff’s Act 1978 indirectly sets the cost of enforcement, and any amendment to Sheriff’s Act fees will flow through to this regulation without needing amendment.

The Regulations do not interact with Commonwealth law, as they are state subordinate legislation. However, the Sentencing Act 2017 and its regulations may interact with Commonwealth offences if adopted under cross vesting or cooperation agreements. The regulations themselves make no mention of federal matters.

The Sentencing Regulations 2018 were originally made as No. 25 of 2018 and published in the Gazette on 6 February 2018, commencing on 30 April 2018. They revoked the earlier Criminal Law (Sentencing) Regulations 2014.

Four amendments have been made.

First, variation No. 18 of 2019, published in the Gazette on 28 February 2019 and commencing the same day. This amendment omitted regulation 2 (the definition of ‘commencement’ or similar) under the Legislation Revision and Publication Act 2002 - a standard textual housekeeping change. It also varied regulation 6(1) (the ex officio sentencing discount modifications) in three ways described in the legislative history as r 4(1)-(3). The precise content of those variations is not detailed in the current source, but the effect is that the current text of regulation 6 is not the version originally made. The amendment may have adjusted the discount percentages or added the factors in subregulation (3a). Importantly, this amendment changed the substantive discount regime for ex officio cases.

Second, variation No. 122 of 2020, published in the Gazette on 4 June 2020 and commencing on 1 July 2020. This varied regulation 8 (enforcement of restitution fees). The nature of the variation is not specified beyond ‘r 4’ but likely adjusted the fee amounts or how they are calculated by reference to Sheriff’s Act fees.

Third, variation No. 289 of 2020, published 29 October 2020 and commencing 2 November 2020. This varied regulation 6(1) again, in two ways described as r 4(1) and (2). The current text of regulation 6 includes the restrictive provision in subregulation (2) that the modifications do not apply if the ex officio information includes committed offences. That may have been added in this amendment.

The legislative history table shows that regulation 6 has been varied twice (in 2019 and 2020). The original version and the amendment details are not reproduced in the source. Practitioners should consult the historical versions listed at the end of the legislative history to determine the applicable law at any given time. The current version is as at the 2020 amendment. The omission of regulation 2 and Schedule 1 under the Legislation Revision and Publication Act 2002 suggests those provisions were spent or not needed for the current text.

The Sentencing Regulations 2018 are subordinate legislation and as such are rarely the subject of direct litigation. Challenges would typically be made against decisions taken under the Regulations rather than against the Regulations themselves. No case law is cited in the text of the Regulations. The source does not contain any references to court decisions.

Potential areas of litigation include:

• Validity of additional charges filed by a police prosecutor under regulation 5 where the defendant argues the charges relate to a major indictable offence or affect a DPP prosecution. The court would need to interpret ‘major indictable offence’ (defined in the Sentencing Act 2017) and ‘affect the prosecution’. This could lead to disputes over the scope of police prosecutorial authority.
• The calculation of sentencing discounts under regulation 6. Disputes may arise over whether the first date fixed for arraignment was properly determined, whether the prosecution provided information in time for the defence to consider it, and whether the court gave sufficient weight to the factors in regulation 6(3a). Appeals against severity of sentence may engage these provisions.
• Forfeiture of surrendered items under regulation 7. A person whose firearm is forfeited could potentially seek judicial review of the Commissioner’s decision to refuse return, arguing that the notice was not properly given, that the person held an authorisation, or that the three month period should be extended. The no compensation clause may be challenged as an acquisition of property on unjust terms (though the South Australian Constitution does not contain an equivalent to section 51(xxxi) of the Commonwealth Constitution; only Commonwealth legislation is subject to that guarantee, so state forfeiture may not attract constitutional compensation).
• Recovery of storage costs under regulation 7(10). A person could dispute the reasonableness of costs charged by the Commissioner.
• Application of fees under regulation 8. A party subject to an enforcement order could argue that fees were incorrectly calculated by reference to the Sheriff’s Act 1978.

Given the Regulations are only six years old and have been amended multiple times, there may be limited appellate case law. Practitioners should check South Australian Supreme Court and Court of Criminal Appeal decisions on judicial review and sentence appeals for references to these regulations.

Police prosecutor charging trap - Regulation 5(2) allows only a police prosecutor (not any police officer) to sign a list of additional charges. If a non prosecutor police officer attempts to file such a list, it may be invalid. The phrase ‘police prosecutor’ is not defined in the regulations but likely refers to officers holding that specific role within SAPOL. Additionally, the conditions in regulation 5(2) are not merely aspirational but legal restrictions; breach could render the additional charges a nullity.

Ex officio discount regime is separate and less generous - Regulation 6 creates a self contained discount schedule for ex officio cases that differs from the standard section 40 regime. The maximum discount for a serious indictable offence in ex officio cases is 25% (within 4 weeks) compared to 40% in ordinary cases. Defence lawyers must not assume the standard rules apply. Critically, the 4 week window runs from ‘the first date fixed for the arraignment’, not from the date the information is laid or the defendant is charged. If the first arraignment date is set before the defence has received the brief, the window may have already closed or be unreasonably short. The court must consider disclosure timing, but the regulation does not stop the court from applying the cap regardless.

Mixed ex officio and committed offences - Regulation 6(2) is a trap: if the ex officio information also includes offences that were committed to the superior court for trial (i.e., they survived committal), the modified discount regime does not apply to those committed offences. The court must instead apply the standard section 40 regime for those counts. This means a single plea on multiple counts could attract different discount caps depending on the procedural history of each count.

Mandatory factors may not save you - Regulation 6(3a) says the court ‘must take into account’ disclosure timing and time for defence consideration. But the court retains discretion. A late defence response or a frivolous delay argument may see the court apply the lower cap.

Surrendered items: return is not automatic - Regulation 7(3) gives the person a right to notify the Commissioner that the condition has ended, but not a duty. The Commissioner only returns if notified or otherwise becomes aware (subregulation 5). If the person does not notify, the item may remain in police custody indefinitely, accruing storage costs (subregulation 10). The person has no right to demand return without providing proof that the condition has ended.

Three month collection deadline is strict - Regulation 7(8)(a) provides for automatic forfeiture if the item is not collected within three months of the notice date. The Commissioner may specify a longer time, but there is no obligation to do so. The notice need only be given by post, fax or email to the last known address or address for service. If the person is incarcerated or has moved, they may never receive the notice. Forfeiture is triggered without any further opportunity to explain.

No compensation for forfeiture - Regulation 7(12) is unambiguous: no compensation is payable. Even if the item is worth tens of thousands of dollars and the forfeiture results from a bureaucratic oversight (e.g., notice sent to wrong address), the person has no remedy for the loss.

Storage costs are recoverable but unbounded - The Commissioner can recover reasonable costs. The regulation does not specify the rate, nor require a breakdown. A person who cannot afford to collect the item quickly may face a large bill.

Restitution enforcement costs may outweigh the value - Regulation 8 sets fees by reference to the Sheriff’s Act 1978, but does not cap total costs. Locating property, valuing it, serving and executing the order could cost more than the property is worth, and the victim bears those costs upfront.

For police prosecutors: Before signing any list of additional charges under regulation 5, confirm that no charge on the list is a ‘major indictable offence’ as defined in the Sentencing Act 2017 (likely an offence punishable by imprisonment for 5 years or more or specifically designated). Check whether the DPP is already prosecuting any offence that could be affected by the additional charges. If in doubt, contact the DPP’s office. Keep a written record of that confirmation. Document the basis for concluding the charges do not interfere with DPP prosecutions.

For defence lawyers in ex officio cases: Immediately upon receiving notice of the first arraignment date, seek disclosure of all information, material and evidence from the DPP. If disclosure is late, make a written submission to the court under regulation 6(3a) that the court must take into account the timing and the time reasonably required for defence consideration. Argue that the discount cap should not be applied strictly if the prosecution has not provided sufficient case material. Consider filing an application for an adjournment of the arraignment to allow adequate time, though this may affect the four week window. If the ex officio information includes both committed and non committed offences, advise the client that the discount regime differs between counts - the plea on committed offences is not subject to the modified caps.

For persons subject to a court order requiring surrender of firearms: Keep a copy of the surrender direction and any receipt from the police. Note the date the condition ends (e.g., expiry of home detention order, revocation of bond). Immediately upon the condition ending, notify the Commissioner of Police in writing (using email or certified mail) that the condition is no longer in effect. Include your name, the surrendered item description, the police reference number, and the date the condition ended. Request return of the item and confirm that you hold the necessary firearms authorisation under the Firearms Act 2015. If you do not yet hold an authorisation, apply for one as soon as possible. Monitor your address for the Commissioner’s written notice of collection (subregulation 6). Collect the item within three months of the notice date. If you cannot collect within three months, write to the Commissioner requesting an extension (the regulation allows a longer time at the Commissioner’s discretion). Keep a record of the extension request and response. If the Commissioner refuses to return the item, request written reasons under subregulation 7(c). Consider seeking legal advice if the refusal appears unreasonable, but note that no compensation is payable for forfeiture.

For parties enforcing a restitution order: Before lodging the order for enforcement, estimate the likely fees by reference to the Sheriff’s Act 1978. The fees include time spent locating property (per hour), actual valuation costs, administrative issue fees, service fees, and travel expenses. Ensure you have funds or a credit arrangement to cover these fees up front. After enforcement, you may recover the fees as part of the restitution order if the court so orders, but the regulation does not guarantee that.

For the Commissioner of Police: Establish a systematic process for tracking surrendered items and the conditions attached to them. When a court order imposes a firearm surrender condition, record the condition type, the person’s details, the item description, and the expected end date. When notified by the person or otherwise becoming aware that the condition has ended, promptly send the written notice under subregulation 6. Use the address for service from the court order or the last known address. If the item is not collected within three months, forfeit it. If the person does not hold firearms authorisation, refuse return and forfeit. Recover storage costs in accordance with a transparent rate schedule to avoid disputes over reasonableness. Ensure all notices comply with the service methods in subregulation 13.