The following outlines the sections of the Criminal Law (Sentencing) Act 1988 (SA) which most often impinge on duty solicitor work in relation to the sentencing process.
A court is not bound by the rules of evidence and may inform itself about matters relevant to the determination of sentence as it thinks fit [see Criminal Law (Sentencing) Act 1988 (SA) ss 6(a) and s 6(b)]. In determining a sentence, the court must “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” [see s 6(c)]. The sentencing court should sentence the defendant based upon the facts put forward by the defendant which are most favourable, so long as those facts are a reasonable possibility.
A defendant charged with an offence on complaint who is represented at court by counsel (and is not subject to bail conditions) is not required to be present at court for sentencing, as the defendant is appearing through his or her counsel. A defendant who is to be sentenced for an indictable offence must attend court for all proceedings relevant to the determination and imposition of the sentence [see Criminal Law (Sentencing) Act 1988 (SA) s 9B(1)]. However, the defendant may be absent for part or all of the proceedings with the prosecutor’s consent [see s 9B(1) exception 1]. In addition, the defendant may be excluded by the court in the interests of safety or the orderly conduct of proceedings, in which case arrangements should be made for the defendant to see and hear the proceedings through audiovisual link [see s 9B(1) exception 2]. The validity of a sentence is not affected by a sentence being passed in the absence of the defendant [see s 9B(4)(b)].