R v Al-Zuain

Case [2009] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v AL-ZUAIN

[2009] SASC 123

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Vanstone)

11 May 2009

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appellant pleaded guilty to a number of offences - one of the offences to which the appellant pleaded guilty was not punishable by imprisonment - pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), Judge imposed a single sentence of imprisonment in respect of all of the offences to which the appellant pleaded guilty - appeal against sentence imposed by Judge.

Held: single sentence of imprisonment can be imposed pursuant to s 18A of Sentencing Act only if each of the offences for which the single sentence is being imposed attracts a maximum penalty which includes imprisonment - the Judge erred in imposing single sentence of imprisonment - appeal allowed - appellant to be resentenced.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

Appellant detected by police with a quantity of drugs and a handgun - appellant charged on Information and granted bail - at the same time, appellant charged on complaint with less serious offences arising out of the same incident and granted bail - appellant subsequently charged with further offences relating to a separate incident and was remanded in custody - appellant had bail revoked in relation to offences charged on complaint - bail granted in relation to offences charged on Information not revoked - appellant acquitted of subsequent charges and granted bail in relation to offences charged on complaint - appellant in custody in relation to offences charged on complaint for a total of 80 weeks - appellant pleaded guilty to all offences charged on both Information and complaint - Judge reduced by 40 weeks the sentence of imprisonment that he imposed to reflect the time that the appellant spent in custody prior to sentencing - whether period appellant spent in custody prior to sentence to be taken into account in re-sentencing the appellant.

Held: appellant sentenced to a single sentence of imprisonment in respect of the offences to which he pleaded guilty and which have a maximum penalty which includes a sentence of imprisonment - three of the offences for which the appellant was sentenced to imprisonment were charged on the complaint - appellant spent time in custody which was referable to offences charged on complaint - open for the Court, pursuant to s 30(2) of the Sentencing Act, to reduce the sentence of imprisonment to take account of the 80 weeks the appellant spent in custody - appellant sentenced to the same head sentence and non-parole period imposed by the Judge, notwithstanding that the Judge only reduced the sentence imposed by 40 weeks on account of the time spent in custody, as the Judge adopted a starting point that was too low - consideraton of power…

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R v Al-Zuain [2009] SASC 123
Case
[2009] SASC 123
Decision Date

CaseChat Overview and Summary

Mr Al-Zuain appealed against the sentence of imprisonment imposed by the Judge. A single Judge granted permission to appeal. The appellant was observed by police leaving a nightclub in Adelaide in the early hours of 1 July 2006 and entering a nearby car. A search of the appellant and the car revealed a bag containing drugs and a handgun. The appellant was charged with offences relating to the drugs and the firearm. The appellant was granted bail in relation to the charges but was subsequently charged with further offences arising out of the same incident. The appellant was remanded in custody in relation to the further charges but was later acquitted of those charges and granted bail. The appellant pleaded guilty to all of the offences charged on both the Information and the complaint. The Judge imposed a single sentence of imprisonment in respect of all of the offences. The appellant appealed the sentence.

The legal issues were whether the Judge had erred in imposing a single sentence of imprisonment in respect of all of the offences and, if so, whether the sentence imposed by the Judge should be reduced to take into account the time the appellant had spent in custody prior to sentence. The court considered the operation of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and whether the Judge had erred in including the offence of breaching reg 29(2) of the Firearms Regulations 1993 (SA) in the sentence. The court also considered the operation of s 30(2) of the Sentencing Act and whether the sentence imposed by the Judge should be reduced to take into account the time the appellant had spent in custody prior to sentence.

The court held that the Judge had erred in imposing a single sentence of imprisonment in respect of all of the offences. The court held that a single sentence of imprisonment can only be imposed pursuant to s 18A of the Sentencing Act if each of the offences for which the single sentence is being imposed attracts a maximum penalty which includes imprisonment. The court held that the offence of breaching reg 29(2) of the Firearms Regulations 1993 (SA) does not attract a maximum penalty which includes imprisonment and therefore the Judge had erred in including this offence in the sentence. The court held that the Judge had also erred in reducing the sentence imposed by only 40 weeks on account of the time that the appellant spent in custody. The court held that it was open to the court, pursuant to s 30(2) of the Sentencing Act, to reduce the sentence of imprisonment to take account of the 80 weeks the appellant spent in custody. The court held that it was also open to the court, independent of the Sentencing Act, to take into account periods an offender spends in custody prior to sentence.

The court allowed the appeal and ordered that the appellant be resentenced to a single sentence of imprisonment of one year, eleven months and three weeks, with a non-parole period of eight months three weeks. The court directed that the sentence and the non-parole period commence on 16 December 2008, the date when the sentence imposed by the District Court took effect. The court recorded a conviction without further penalty in relation to the second charge on the complaint.

Orders

Orders of the court

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Background

Background to the litigation

Mr Al-Zuain appeals against the sentence of imprisonment imposed by the Judge. A single Judge granted permission to appeal.Background Police observed Mr Al-Zuain leave a nightclub in Adelaide in the early hours of 1 July 2006 and enter a nearby car. The police searched Mr Al-Zuain and the car and recovered from the front passenger seat of the car a bag commonly carried around one’s waist. The bag contained a number of items. In particular, it contained 49 tablets. These tablets were later analysed and found to contain 2.20 grams of 3, 4 methylenedioxymethamphetamine, (‘MDMA’) (commonly called ‘ecstacy’). The bag contained 2 smaller plastic bags, containing in total 8.02 grams of white powder. This powder was analysed and was found to contain 4.46 grams of cocaine. The bag also contained a handgun, which had a magazine containing seven rounds of live ammunition. The gun was tested and found to be in working order. Also in the bag were empty resealable bags, a notepad recording what appear to be sales of drugs, and a small set of scales which, when analysed, were found to have traces of cocaine present. Mr Al-Zuain was arrested and released on bail later that day. Mr Al-Zuain was charged on an Information filed in the Magistrates Court dated 1 September 2006. The Information, as amended, charged Mr Al-Zuain with one count of possessing MDMA for the purpose of sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (‘the CSA’), as it stood at the time of the offence. The Information further charged Mr Al-Zuain with having in his possession cocaine for the purpose of sale, contrary to s 32(1)(e) of the CSA. The maximum penalty for each of these offences is 25 years imprisonment or a fine of $200,000 or both. The third charge on the Information alleged that Mr Al-Zuain had in his possession a class H firearm without a licence, contrary to section 11(1) of the Firearms Act 1977 (SA) (‘the Firearms Act’). This charge carries with it a maximum penalty of 7 years imprisonment or a fine of $35,000. I will refer to these charges as ‘the District Court charges’. A complaint filed in the Magistrates Court on 1 September 2006 charged Mr Al-Zuain with four other offences. The offences all related to the firearm found in the bag. The first count alleged that Mr Al-Zuain had in his possession an unregistered firearm, contrary to s 23(1) of the Firearms Act. This offence carries with it a maximum penalty of a fine of $10,000 or two years imprisonment. The second count alleged that Mr Al-Zuain failed to keep a class H firearm that was in his possession secured in accordance with reg 29(2) of the Firearms Regulations 1993 (SA), an offence under reg 53. The maximum penalty for an offence against reg 53 is a fine of $2,500. The third count alleged that Mr Al-Zuain had in his control both a firearm and a loaded magazine which could be used in conjunction with the firearm, in a public place, contrary to s 15(1f)(a)(ii) of the Summary Offences Act 1953 (SA) as it stood at the relevant time. This offence carries with it a maximum penalty of a fine of $1250 or imprisonment for three months. The final offence charged was theft of the handgun. The offence of theft attracts a maximum penalty of 10 years imprisonment. I will refer to the offences charged against Mr Al-Zuain on the complaint as ‘the Magistrates Court charges’.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

No reference was made in submissions to the circumstance that in dealing with the Magistrates Court charges the Judge was exercising the jurisdiction conferred by s 22 of the Magistrates Act 1983 (SA). In R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 this Court considered the question of which statutory provision regulates the right of appeal when the jurisdiction conferred by s 22 is exercised. The conclusion of the Court in Gibbs was that, at least when s 18A of the Act is used, the appeal is not governed by s 42 of the Magistrates Court Act 1991 (SA). But differing views were expressed on the broader question. The decision in Gibbs supports the conclusion that in this case it was not necessary for the appellant to have filed a separate notice of appeal under the Magistrates Court Act. See also R v Simpson [2004] SASC 307; (2004) 89 SASR 515.Conclusion and Orders I would allow the appeal. In relation to all offences other than the second offence charged on the complaint, I would sentence Mr Al-Zuain to a single sentence of imprisonment of one year, eleven months and three weeks. I would fix a non-parole period of eight months three weeks. I would direct that the sentence and the non-parole period commence on 16 December 2008, the date when the sentence imposed by the District Court took effect. I would record a conviction without further penalty in relation to the second charge on the complaint. SULAN J: I have read the reasons of the Chief Justice. I agree that, in applying s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’), the sentencing Judge erred in including the offence of breaching reg 29(2) of the Firearms Regulations 1993 (SA) in the sentence. Turning to s 30(2) of the Sentencing Act, in Hughey,[1] the Court was asked to consider the operation of the section in the circumstances which had arisen in that case. Hughey had been given credit of three months for time he had spent in custody when serving a sentence for an unrelated offence. The final sentence resulted in him being credited with three months’ imprisonment twice. That is, for both the offence for which he was serving the sentence and the offence for which his sentence was the subject of the appeal. The decision particularly dealt with s 30(2). Having regard to the High Court’s observations in PNJ,[2] the directions of Debelle and Vanstone JJ as to the construction of s 30(2) of the Sentencing Act must be open to reconsideration.[1] R v Hughey [2007] SASC 452.[2] PNJ v R [2009] 252 ALR 612. I observe that Debelle and Vanstone JJ in Hughey did not address the position at common law. If it were thought that the decision in Hughey prohibited a sentencing judge from giving a defendant credit for time spent in custody, other than time in respect of the offence for which the defendant is sentenced, I disagree. There is much to be said in support of the observations of Redlich J in Berry.[3] The interstate authorities to which the Chief Justice has referred, support the conclusion that the Court has an inherent jurisdiction to discount a sentence by giving credit for time spent in custody for offences unrelated to those upon which the defendant is sentenced. [3] R v Berry [2007] VSCA 202, [115].

Ratio Decidendi

Legal Principle Established

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