The Commission generally instructs its duty solicitors that they should not conduct guilty pleas where there is a real likelihood that the sentence imposed will be one of imprisonment, whether immediate or suspended [see Guilty Pleas chapter]. Imprisonment is discussed below for the sake of completeness.
Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) places imprisonment as the penalty of last resort. This section prohibits a penalty of imprisonment unless the defendant:
- has shown a tendency to be violent towards other people [see s 11(1)(a)(i)], or
- is likely to commit a serious offence if not imprisoned [see s 11(1)(a)(ii)], or
- has previously received a conviction for an offence punishable by imprisonment [see s 11(1)(a)(iii)].
In addition, a sentence of imprisonment may be imposed based upon:
- the gravity or circumstances of the offence, whereby no other penalty would be appropriate [see s 11(1)(a)(iv)], or where
- the use of imprisonment is considered necessary to give proper effect to the policies of the criminal law as outlined in section 10 of the Act [see ss 11(b) and 10].
Imprisonment is a strong possibility in the following cases:
- any offence where imprisonment is a penalty if the defendant has a number of priors for the same type of offending
- larceny/shoplifting if the defendant has several prior convictions
- larceny as a servant, because the breach of the employer’s trust is considered to be extremely aggravating
- damage property if the damage is extensive, such as graffiti which will cost thousands of dollars to remove
- assault, particularly assault police, and especially if aggravated or the defendant has a prior conviction or convictions for assault
- driving whilst under disqualification
- illegal use of a motor vehicle: If it is a first offence, there is a reasonable prospect of a suspended sentence, and on a second offence a much stronger chance of immediate imprisonment. An aggravating feature would be if a high speed chase by police occurred during the illegal use of the vehicle.
- offences which breach suspended sentences or parole
- defendants with extensive prior records, particularly if there are prior gaol terms or a significant history of probation
- as a very general rule, a first offence of non-aggravated serious criminal trespass often attracts a suspended term of imprisonment, and a second offence an immediate term of imprisonment. However if there are aggravating features or the offending is of a serious nature, a first offence may result in an immediate sentence of imprisonment [see R v Delphin (2001) 79 SASR 429].