Sentencing Purposes (SA)
When a court has found a person guilty of an offence, it generally has a wide discretion in deciding on the penalty to impose. However, courts must impose sentences based on the sentencing principles set out in legislation. In South Australia, the purposes for which sentencing orders may be made are contained in the Sentencing Act 2017. This page deals with sentencing purposes in South Australia.
Primary sentencing purpose is community protection
Unlike many other states and territories, South Australian legislation specifies that there is a primary purpose when sentencing a defendant. Under section 3 of the Sentencing Act 2017, the primary purpose of any sentence imposed in South Australia is to protect the safety of the community.
The principle of community protection is that the wellbeing of the community must be preserved and that people must be protected from the harms that flow from criminal offending.
However, sentences imposed in the interest of community protection must be proportionate to the offences that have been committed. Penalties must not be imposed as a preventative measure to protect against possible future offending.
Secondary sentencing purposes
Under section 4 of the Sentencing Act 2017, the secondary purposes of a sentence in South Australia are:
- To ensure that the offender is punished and held accountable
- To publicly denounce the offending
- To public recognise the harm done to the community and to the victim
- To deter the defendant and others from committing similar offences
- To promote the rehabilitation of the defendant
Balancing different sentencing purposes
Different sentencing purposes overlap with each other and conflict with each other. In any given case, the secondary sentencing purposes that are prioritised will depend on the nature of the offending and the surrounding circumstances.
Court assess how to balance the different sentencing purposes based on a range of factors, including the circumstances of the offence; the offender’s age, background, character and background; the extent of any injury, harm, loss or damage caused by the offence; the offender’s prospects of rehabilitation and whether the offender has shown remorse for the offence.
A sentence may be imposed to punish an offender. When a sentence is imposed in the interests of just punishment, the penalty must reflect the objective seriousness of the offending. The victims of the offence and the community more broadly must feel that justice has been done.
A sentence may be imposed to publicly denounce the offender’s behaviour. A sentence imposed in the interests of public denunciation aims to send a clear message that the offender’s behaviour is not acceptable.
Denunciation is a particularly relevant sentencing purpose when the offending is a clear violation of society’s moral standards such as child sex offences.
Recognising harm done
A sentence may be imposed in recognition of the harm done to a particular victim or to the community in general.
Many sentences are imposed with the aim of deterrence. A sentence may be imposed in the interests of specific deterrence, in the interests of generally deterrence, or both.
A sentence imposed with the aim of general deterrence is designed to discourage other people from committing similar offences. General deterrence will be most relevant in cases involving a type of offending that is very prevalent such as drink driving or domestic violence. It will be less relevant when the offending arose because of very unusual circumstances.
A sentence imposed with the aim of specific deterrence is designed to discourage this particular offender from committing similar offences in the future. Specific deterrence is most relevant when the court is dealing with a repeat offender who has the capacity to understand and control their actions. It will be less relevant when dealing with an offender who has limited insight or agency such as a juvenile or a person who suffers from a mental illness.
Rehabilitation is often a very important sentencing purpose, especially where the offender is young. A sentence that is aimed at rehabilitation aims to promote the offender becoming a law-abiding citizen. It may consist of an order with conditions that the person undertake specified programs such as drug and alcohol treatment, counselling, anger management or community work.
A rehabilitative sentence will generally be tailored to the offender’s circumstances and seek to address the causes of their offending.
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