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Monday, 19 November 2012

Sentencing discounts

The Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA) caught my eye today. This bill recently passed the South Australian Parliament, and amends the Criminal Law (Sentencing) Act 1988 (SA).

The legislation encourages sentencing discounts for early pleas of guilty, and provides proportional limits on the discounts that can be offered, depending on when the plea is entered. It implies a 40% discount may be available at first mention of a matter, and then up to a 30% discount at any other time prior to contested hearing.

The new s 10B will read:

10B — Reduction of sentences for guilty plea in Magistrates Court etc

(1) This section applies —

(a) if the sentencing court is the Magistrates Court; or

(b) if the sentencing court is sentencing in relation to a matter dealt with 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 first appears in a court 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 first appears in a court 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 he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her 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) 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 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 was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter 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.

(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 shock the public conscience;

(b) the stage in the proceedings for the offence at which the defendant first indicated his or her 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) the circumstances surrounding the plea;

(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,

and may have regard to any other factor or principle the court thinks relevant.

Section 10C creates a similar provision for trial courts, but the discounts are smaller and the time periods slightly longer.

These provisions don't break new ground for South Australian courts, but represent tinkering with the existing system designed to encourage early pleas. Other states have them, too. When these 'transparent and understandable' discounts were first proposed in SA Parliament earlier this year, they provided for stricter discount limits, and were criticised from some quarters for reducing the discretionary powers of the judiciary and reducing the incentive for offenders to plead guilty. The proportional limits were increased.

But 30% or 40% of what? Sentencing practices vary so widely that what may be one magistrate's substantial discount on a plea may still be a harsher penalty than what would be awarded by a different magistrate after a contest. Nobody has found a solution to that issue yet.


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