Syllabus 23: Non-custodial sentences
1) Absolute and conditional discharge
[E3.1-E3.2 and E3.3-E3.5]
s.79 SA 2020: order discharging an offender absolutely in respect of an offence.
Available:
- To all criminal courts
- Whatever the age of the offender
- Whatever the offence committed(exceptions at s.80(2)(b)).
AD cannot be combined with a punitive measure for the same offence except where permitted by statute.
Permitted to combine an AD with any disqualification and a confiscation order.
s.80 SA 2020: order discharging an offender for an offence subject to the condition that the offender
commits no offence during the period specified in the order.
The sole condition is that the offender should commit no further offence during the period of the
condition discharge. No other condition or requirement may be inserted.
A CD is fixed at a maximum of 3 years.
Available:
- To all criminal courts
- Whatever the age of the offender
- Whatever offences committed (subject to exceptions)
CD cannot be combined with a punitive measure for the same offence except where permitted by statute.
Permitted to combine an AD with any disqualification and a confiscation order.
® Breach of conditional discharge
s.18 SA 2020: CD can only be breached by the conviction of the offender of a further offence committed
during the period of the discharge.
The A can be sentenced for the original offence (however CC would be limited to MC powers).
2) Fines
[E5.1-5.3, E5.8, E5.14, E5.16, E5.18-5.19 (first three sub-paragraphs only) and E5.21-5.22]
a) Fines in the CC
s.120 SA 2020: General power of the CC to impose a fine on an offender convicted on indictment.
Some sentences cannot be combined with a fine (ex: hospital order or AD when dealing with a single
offence).
s.130 SA 2020: When the CC imposes a fine, it may make an order allowing time for the payment of
the fine or directing payment of the fine by instalments of the amounts and on the dates specified in the
order.
, s.129 SA 2020: applies when CC imposes a fine on an offender who is aged 18 or over when convicted
of the offence but does not apply in relation to a fine imposed by the CC on appeal against a decision
of MC:
Term of imprisonment or detention to be served in default must be fixed in every case where the CC
imposes a fine or forfeits a recognizance.
b) Fines in the MC
s.118 and s.119 SA 2020: A fine is available to a MC dealing with an offender for an offence if under
the relevant offence provision a person who is convicted of that offence is liable to a fine. The MC may
impose a fine instead of sentencing the offender to imprisonment or other detention where under an
enactment a MC has power to sentence an offender to imprisonment or other detention but not to a fine.
c) Sentencing principles (fines)
s.124(1) SA 2020: before fixing the amount of any fine to be imposed on an offender who is an
individual, a court must:
- inquire into the offenders’ financial circumstances
- the amount must be such as to reflect the seriousness of the case but the court must take into account
the circumstances of the case.
A financial circumstances order is an order requiring the relevant individual to give to the court before
the end of the period specified such a statement of the individual’s assets and other financial
circumstances the court may require (happens when D does not attend court and has pleaded G).
Reduction in sentence for guilty plea (credit) applies to fines.
3) Community Orders
[E12.2, E12.6, E12.8, E12.11, E12.12, E12.13-12.17, E12.19-12.20, E12.24, E12.27-12.28 and E12.30-12.35]
s.202 SA 2020: a community order is an order imposed on an offender aged 18 or over when
convicted. The offence(s) must be serious enough to warrant the making of such order.
CO is only available if the offence is punishable with imprisonment and cannot be made in
combination with a hospital order.
The court must take into consideration all the information available to it (including the offence and
offender) and must normally obtain a PSR unless the court considers it unnecessary.
s.201 SA 2020: sets out the requirements for a community order:
• Unpaid work requirement:
- Not less than 40 hours
- Not more than 300 hours
Work should usually be completed within 12 months. If the offender does not complete the work, the
offender is in breach of CO and court may either initiate breach or extend the 12m period.
1) Absolute and conditional discharge
[E3.1-E3.2 and E3.3-E3.5]
s.79 SA 2020: order discharging an offender absolutely in respect of an offence.
Available:
- To all criminal courts
- Whatever the age of the offender
- Whatever the offence committed(exceptions at s.80(2)(b)).
AD cannot be combined with a punitive measure for the same offence except where permitted by statute.
Permitted to combine an AD with any disqualification and a confiscation order.
s.80 SA 2020: order discharging an offender for an offence subject to the condition that the offender
commits no offence during the period specified in the order.
The sole condition is that the offender should commit no further offence during the period of the
condition discharge. No other condition or requirement may be inserted.
A CD is fixed at a maximum of 3 years.
Available:
- To all criminal courts
- Whatever the age of the offender
- Whatever offences committed (subject to exceptions)
CD cannot be combined with a punitive measure for the same offence except where permitted by statute.
Permitted to combine an AD with any disqualification and a confiscation order.
® Breach of conditional discharge
s.18 SA 2020: CD can only be breached by the conviction of the offender of a further offence committed
during the period of the discharge.
The A can be sentenced for the original offence (however CC would be limited to MC powers).
2) Fines
[E5.1-5.3, E5.8, E5.14, E5.16, E5.18-5.19 (first three sub-paragraphs only) and E5.21-5.22]
a) Fines in the CC
s.120 SA 2020: General power of the CC to impose a fine on an offender convicted on indictment.
Some sentences cannot be combined with a fine (ex: hospital order or AD when dealing with a single
offence).
s.130 SA 2020: When the CC imposes a fine, it may make an order allowing time for the payment of
the fine or directing payment of the fine by instalments of the amounts and on the dates specified in the
order.
, s.129 SA 2020: applies when CC imposes a fine on an offender who is aged 18 or over when convicted
of the offence but does not apply in relation to a fine imposed by the CC on appeal against a decision
of MC:
Term of imprisonment or detention to be served in default must be fixed in every case where the CC
imposes a fine or forfeits a recognizance.
b) Fines in the MC
s.118 and s.119 SA 2020: A fine is available to a MC dealing with an offender for an offence if under
the relevant offence provision a person who is convicted of that offence is liable to a fine. The MC may
impose a fine instead of sentencing the offender to imprisonment or other detention where under an
enactment a MC has power to sentence an offender to imprisonment or other detention but not to a fine.
c) Sentencing principles (fines)
s.124(1) SA 2020: before fixing the amount of any fine to be imposed on an offender who is an
individual, a court must:
- inquire into the offenders’ financial circumstances
- the amount must be such as to reflect the seriousness of the case but the court must take into account
the circumstances of the case.
A financial circumstances order is an order requiring the relevant individual to give to the court before
the end of the period specified such a statement of the individual’s assets and other financial
circumstances the court may require (happens when D does not attend court and has pleaded G).
Reduction in sentence for guilty plea (credit) applies to fines.
3) Community Orders
[E12.2, E12.6, E12.8, E12.11, E12.12, E12.13-12.17, E12.19-12.20, E12.24, E12.27-12.28 and E12.30-12.35]
s.202 SA 2020: a community order is an order imposed on an offender aged 18 or over when
convicted. The offence(s) must be serious enough to warrant the making of such order.
CO is only available if the offence is punishable with imprisonment and cannot be made in
combination with a hospital order.
The court must take into consideration all the information available to it (including the offence and
offender) and must normally obtain a PSR unless the court considers it unnecessary.
s.201 SA 2020: sets out the requirements for a community order:
• Unpaid work requirement:
- Not less than 40 hours
- Not more than 300 hours
Work should usually be completed within 12 months. If the offender does not complete the work, the
offender is in breach of CO and court may either initiate breach or extend the 12m period.
