Syllabus 22: Sentencing Principles
1) Purposes of sentencing
[E1.2-E1.4]
s.57 Sentencing Act 2020:
(2)The court must have regard to the following purposes of sentencing—
(a)the punishment of offenders,
(b)the reduction of crime (including its reduction by deterrence),
(c)the reform and rehabilitation of offenders,
(d)the protection of the public, and
(e)the making of reparation by offenders to persons affected by their offences.
2) General provisions in sentencing
[E2.1- E2.4, E2.9- E2.12 E2.15, E2.17-2.19 and the first two sub-paragraphs of E13.22]
Credit for G plea
s.73 Sentencing Act 2020: reduction in sentence for a guilty plea. Benefit of G plea apply regardless
of the strength of the evidence against the offender.
G plea indicated at the first stage of proceedings Maximum Reduction = 1/3 Credit
G plea indicated after the first stage of ¼ Credit
proceedings
G plea indicated on first day of trial 1/10 Credit
G plea entered during course of trial Should normally be decreased even further,
even to 0
G plea at PTPH 1/3 should NOT be given unless D pleaded
guilty in MC or where an IO has been charged,
has provided an unequivocal indication of guilty
at MC
Newton Hearing Reduction may be lost
It is wrong to suspend a prison sentence to reflect a plea of guilty.
Aggravating factors
Aggravating factors affecting the seriousness of the offence should always be taken into account when
deciding whether an offence is serious enough to warrant a community sentence or so serious that
neither a find alone nor a community sentence can be justified. Lies told by the offender are not
aggravating factors.
s.64 SA 2020: Offence committed on bail
- particularly acute where the offence committed on bail is of the same type as the offence for which
bail was granted.
s.65 SA 2020: Previous convictions
, - Convictions accrued after the instant offence was committed are not pre-cons for the purpose of this
provision.
- Sentence must remain proportionate
s.66 SA 2020: Hostility
- Does not apply where the court is imposing sentence for one of the racially or religiously aggravated
offences under CDA 1998 nor when A is being sentenced to the basic offence where a racially or
religiously aggravated version exists.
- If presence of aggravating factor is disputed by the defence, a newton hearing may well be necessary
to resolve the matter
s.69 SA 2020: Terrorist connection
Mitigating Factors
s.77 & s.78 SA 2020:
- the weight to be given to mitigation is a matter within the discretion of the court and in particular the
serious nature of the offence may mean that little weight can be given.
Prevalence
There may be exceptional circumstances that lead a court to decide that local prevalence should
influence sentencing levels, this should be supported by evidence.
Totality Principle
Two elements:
- Overall sentence should reflect all of the offending behaviour with reference to overall harm
and culpability, together with the aggravating and mitigating factors; and
- Be just and proportionate.
3) Reports
[E2.23, E2.37, E2.30]
s.30 & 31 SA 2020: Pre-sentence report
Victim Personal Statements
Provide a practical way of ensuring that the court will consider the evidence of the victim about the
personal impact of the offence. It is not an opportunity for the victim to suggest or discuss the type or
level of sentence to be imposed.
Medical Reports
s.232 SA 2020: in any case where an offender appears to be or is suffering from a mental disorder, the
court must obtain and consider a medical report before passing a custodial sentence other than one
fixed by law (unless unnecessary to do so).
4) Indication on sentence
[D12.60-12.65]
1) Purposes of sentencing
[E1.2-E1.4]
s.57 Sentencing Act 2020:
(2)The court must have regard to the following purposes of sentencing—
(a)the punishment of offenders,
(b)the reduction of crime (including its reduction by deterrence),
(c)the reform and rehabilitation of offenders,
(d)the protection of the public, and
(e)the making of reparation by offenders to persons affected by their offences.
2) General provisions in sentencing
[E2.1- E2.4, E2.9- E2.12 E2.15, E2.17-2.19 and the first two sub-paragraphs of E13.22]
Credit for G plea
s.73 Sentencing Act 2020: reduction in sentence for a guilty plea. Benefit of G plea apply regardless
of the strength of the evidence against the offender.
G plea indicated at the first stage of proceedings Maximum Reduction = 1/3 Credit
G plea indicated after the first stage of ¼ Credit
proceedings
G plea indicated on first day of trial 1/10 Credit
G plea entered during course of trial Should normally be decreased even further,
even to 0
G plea at PTPH 1/3 should NOT be given unless D pleaded
guilty in MC or where an IO has been charged,
has provided an unequivocal indication of guilty
at MC
Newton Hearing Reduction may be lost
It is wrong to suspend a prison sentence to reflect a plea of guilty.
Aggravating factors
Aggravating factors affecting the seriousness of the offence should always be taken into account when
deciding whether an offence is serious enough to warrant a community sentence or so serious that
neither a find alone nor a community sentence can be justified. Lies told by the offender are not
aggravating factors.
s.64 SA 2020: Offence committed on bail
- particularly acute where the offence committed on bail is of the same type as the offence for which
bail was granted.
s.65 SA 2020: Previous convictions
, - Convictions accrued after the instant offence was committed are not pre-cons for the purpose of this
provision.
- Sentence must remain proportionate
s.66 SA 2020: Hostility
- Does not apply where the court is imposing sentence for one of the racially or religiously aggravated
offences under CDA 1998 nor when A is being sentenced to the basic offence where a racially or
religiously aggravated version exists.
- If presence of aggravating factor is disputed by the defence, a newton hearing may well be necessary
to resolve the matter
s.69 SA 2020: Terrorist connection
Mitigating Factors
s.77 & s.78 SA 2020:
- the weight to be given to mitigation is a matter within the discretion of the court and in particular the
serious nature of the offence may mean that little weight can be given.
Prevalence
There may be exceptional circumstances that lead a court to decide that local prevalence should
influence sentencing levels, this should be supported by evidence.
Totality Principle
Two elements:
- Overall sentence should reflect all of the offending behaviour with reference to overall harm
and culpability, together with the aggravating and mitigating factors; and
- Be just and proportionate.
3) Reports
[E2.23, E2.37, E2.30]
s.30 & 31 SA 2020: Pre-sentence report
Victim Personal Statements
Provide a practical way of ensuring that the court will consider the evidence of the victim about the
personal impact of the offence. It is not an opportunity for the victim to suggest or discuss the type or
level of sentence to be imposed.
Medical Reports
s.232 SA 2020: in any case where an offender appears to be or is suffering from a mental disorder, the
court must obtain and consider a medical report before passing a custodial sentence other than one
fixed by law (unless unnecessary to do so).
4) Indication on sentence
[D12.60-12.65]
