R v Al-Zuain - [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 of a court, independent of the Sentencing Act, to take into account periods an offender spends in custody prior to sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(o), s 18A, s 30, s 30(1), s 30(2); Controlled Substances Act 1984 (SA) s 32(1)(e); Firearms Act 1977 (SA) s 11(1), s 23(1); Firearms Regulations 1993 (SA) reg 29(2), reg 53; Summary Offences Act 1953 (SA) s 15(1f)(a)(ii); Criminal Law Consolidation Act 1935 (SA) s 353(5); Sentencing Act 1991 (Vic) s 18; Magistrates Act 1983 (SA) s 22; Magistrates Court Act 1991 (SA) s 42; Prisons Act 1936 (SA) s 24(1); Correctional Services Act 1982 (SA) s 21, referred to.
Hermel v Police (2000) 76 SASR 336; R v Mangelsdorf (1995) 66 SASR 60; R v Gibbs (2004) 89 SASR 30, applied.
PNJ v The Queen (2009) 83 ALJR 384; R v Heaney (unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996); R v Renzella [1997] 2 VR 88; R v Arts and Briggs [1998] 2 VR 261; R v McMahon [2006] VSCA 240; R v Berry (2007) 17 VR 153; R v Skedgwell [1999] 2 QdR 97; Narkle v Hamilton [2008] WASCA 31; R v Fabre [2008] QCA 386; R v Hughey (2007) 262 LSJS 316; R v Colson (1999) 73 SASR 407; R v P, NJ (No 4) (2008) 254 LSJS 302, discussed.
R v Simpson (2004) 89 SASR 515; The Queen v Stewart (1984) 35 SASR 477; The Queen v Ciccone (1974) 7 SASR 110, considered.

R v AL-ZUAIN
[2009] SASC 123
Court of Criminal Appeal: Doyle CJ, Sulan and Vanstone JJ

DOYLE CJ: Mr Al-Zuain pleaded guilty in the District Court to a number of offences charged on an Information filed in that Court. The Judge considered that charges against Mr Al-Zuain pending in the Magistrates Court, to which Mr Al-Zuain indicated that he would plead guilty, should be dealt with at the same time. Mr Al-Zuain pleaded guilty to those charges when the complaint filed in the Magistrates Court was referred to the District Court. The District Court Judge imposed one sentence of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’) in relation to all of the offences to which Mr Al-Zuain pleaded guilty. He sentenced Mr Al-Zuain to two years and nine months imprisonment, reduced to one year, eleven months and three weeks imprisonment after making an allowance or reduction of 40 weeks referable to time that Mr Al-Zuain spent in custody prior to being sentenced. The Judge fixed a non-parole period of eight months three weeks after making the same allowance or reduction of 40 weeks.
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’.
On 24 July 2006 Mr Al-Zuain had attended at a police station in accordance with the conditions of his bail agreement. The police informed Mr Al-Zuain that he would be detained because he was suspected to have committed offences against the Firearms Act. Mr Al-Zuain fled from the police station but was detained shortly after. After searching Mr Al-Zuain’s house, during which time Mr Al-Zuain again fled, the police recovered a quantity of drugs. On 26 July 2006 Mr Al-Zuain surrendered to the police.
An Information was filed in the Magistrates Court on 14 December 2006 charging Mr Al-Zuain with an offence in relation to the drugs discovered on 24 July 2006 (‘the other charge’). Mr Al-Zuain was later acquitted of the other charge, but it is necessary to refer to this matter because of the effect that it had on Mr Al-Zuain’s bail.
Before the Information charging Mr Al-Zuain with the other charge was filed, Mr Al-Zuain appeared in the Magistrates Court on 15 September 2006 in relation to the District Court charges and the Magistrates Court charges. The endorsement on each of the Magistrates Court files indicates that Mr Al-Zuain was on bail in relation to each of these matters at the time of this appearance.
On 14 December 2006, Mr Al-Zuain appeared in the Magistrates Court in relation to the other charge. Bail was refused and Mr Al-Zuain was remanded in custody on that day. Mr Al-Zuain had been in custody since his arrest on the previous day.
There was a hearing in the Magistrates Court on 5 January 2007 in relation to the Magistrates Court charges, at which time Mr Al-Zuain did not appear. The file endorsement records that Mr Al-Zuain was in custody in relation to other matters. Endorsements relating to subsequent appearances in relation to the Magistrates Court charges, the first being on 16 January 2007, indicate that Mr Al-Zuain was no longer on bail in relation to the Magistrates Court charges, although there is no record of bail in relation to these charges having been revoked.
Mr Al-Zuain came before the Magistrates Court in relation to both the Magistrates Court charges and the other charge on 9 February 2007. Nothing appears to have occurred on this date in relation to the District Court charges. The Magistrates Court file relating to the Magistrates Court charges records that in relation to those charges, bail was “refused”. Once again, there is no record of the bail granted previously being revoked, though Mr Al-Zuain remained in custody.
After a Magistrate committed Mr Al-Zuain to stand trial on the District Court charges, an Information was filed in the District Court on 5 March 2007. On that date, Mr Al-Zuain was arraigned in the District Court on the District Court charges and pleaded not guilty. On 2 July 2007, Mr Al-Zuain entered pleas of guilty to counts one and three, and pleaded not guilty to count two. On 21 April 2008, Mr Al-Zuain entered a plea of guilty in relation to the second count. The District Court file endorsements record that in relation to the District Court charges, Mr Al-Zuain’s bail was to continue.
On 5 September 2008 Mr Al-Zuain was acquitted of the other charge after a trial before a jury in the District Court. On that day, he was granted bail in relation to the Magistrates Court charges.
After an intimation that Mr Al-Zuain would plead guilty to the Magistrates Court charges, the Magistrates Court file relating to those charges was transferred to the District Court. Mr Al-Zuain was arraigned on the Magistrates Court charges in the District Court on 28 October 2008 and pleaded guilty to each of the charges.
As the history indicates, Mr Al-Zuain was in custody from 14 December 2006, initially in relation to the other charge on which he was ultimately acquitted. As from 9 February 2007, he was in custody, it seems, also in relation to the Magistrates Court charges. He remained in custody until his acquittal of the other charge.
The sentence imposed by the District Court
On 16 December 2008 a Judge of the District Court sentenced Mr Al-Zuain in relation to the District Court charges and the Magistrates Court charges. As I have said, the Judge imposed one sentence of imprisonment in relation to all of the charges to which Mr Al-Zuain pleaded guilty, pursuant to s 18A of the Act.
The second of the Magistrates Court charges was an offence against the Firearms Regulations 1993 (SA). The offence was not punishable by imprisonment. Counsel for the Director conceded that in sentencing Mr Al-Zuain to a single sentence of imprisonment in respect of all of the charges against him, the Judge erred. The power conferred by s 18A can be exercised to impose a single sentence of imprisonment in respect of multiple offences only if each of the offences attracts a maximum penalty which includes imprisonment: see Hermel v Police [2000] SASC 34; (2000) 76 SASR 336, at [7] Duggan J.
It was not open for the Judge to impose a sentence of imprisonment in respect of the second count. The appeal must be allowed and the sentence of imprisonment imposed by the District Court set aside. It is appropriate for this Court to re-sentence Mr Al-Zuain.
Re-sentencing
It is appropriate to impose a single sentence of imprisonment in relation to the offences to which Mr Al-Zuain has pleaded guilty and which attract a maximum penalty which includes a term of imprisonment. Mr Al-Zuain has pleaded guilty to six such charges. I have summarised those charges above.
The offences relating to the possession for sale of MDMA and cocaine are serious. As I have said, the first count relates to 49 tablets containing MDMA. Material before the sentencing Judge indicated that the tablets could have been sold for between $25 and $50 each, in all between about $1200 and $2400. The value of the cocaine the subject of the second count was between $1500 and $3000. These are substantial quantities of drugs.
The scales, notepad, and plastic bags discovered in the bag at the time of Mr Al-Zuain’s arrest indicate that Mr Al-Zuain was conducting a significant trade in drugs. The offences cannot be treated as isolated incidents. The Judge noted that Mr Al-Zuain regarded the handgun that was discovered in the bag to be a ‘useful adjunct’ to his trade in drugs. This is of particular concern. The car in which the bag was found was very close to a nightclub. It is likely that Mr Al-Zuain was engaged in the commercial sale of drugs on the night of his arrest. These are all circumstances of aggravation.
In R v Mangelsdorf (1995) 66 SASR 60 at 63, I emphasised that the maximum penalties prescribed by the CSA for offences of the type now under consideration indicate both the seriousness of the offences, and the expectation on the part of Parliament that those who are involved in the drug trade would receive lengthy sentences of imprisonment.
Mr Al-Zuain was 18 years old at the time of the commission of the offences. He is now 21 years old. He was born in Iraq and, when nine years old, moved to Australia with his family. Mr Al-Zuain has the ongoing support of his family and partner, a young woman 22 years of age.
Mr Al-Zuain finished year 11 at school after which time he undertook courses at a senior college. He was employed casually for about a year. After his release on bail following his acquittal of the other charge, he gained employment as a courier.
While Mr Al-Zuain has convictions for a number of offences, none of those offences involved drugs. On 30 September 2005, Mr Al-Zuain was sentenced to a period of detention suspended upon Mr Al-Zuain entering into a bond to be of good behaviour for 12 months. The present offending represents a significant breach of that bond. Nevertheless, counsel for the Director informed the District Court Judge that the Director did not propose to take any action in respect of the breach of the bond. The Judge also noted that at the time of the offences, Mr Al‑Zuain was on bail in relation to an offence of which he was later convicted.
Mr Al-Zuain was addicted to drugs at the time of the offences. I do not, however, consider that this is a factor which carries much weight. I repeat the observations I made in Mangelsdorf at 66. While he was in custody prior to his acquittal of the other charge, Mr Al-Zuain took steps to address his addiction to drugs.
In re-sentencing Mr Al-Zuain, the Court cannot “increase the severity” of the sentence imposed by the District Court, this being an appeal against sentence by Mr Al-Zuain: see s 353(5) of the Criminal Law Consolidation Act 1935 (SA).
Collectively, and particularly having regard to the seriousness of the drug offending, the offending calls for a lengthy period of imprisonment. I consider that the starting point adopted by the sentencing Judge, namely three years six months imprisonment, was too low. I would adopt as a starting point a period of not less than six years imprisonment.
I would reduce that sentence of imprisonment by one quarter (as did the Judge), to reflect Mr Al-Zuain’s pleas of guilty to the offences charged, notwithstanding that Mr Al-Zuain entered his plea to the second count on the Information at a relatively late stage.
That would result in a head sentence of four years six months, prior to any further reduction for time spent in custody. As the Court cannot impose a sentence exceeding two years nine months (the sentence under appeal), I therefore would impose this sentence.
On the hearing of the appeal an issue arose as to the appropriate reduction on account of time spent in custody referable to the Magistrates Court charges. On the most favourable view, that was a period of 19 months. Even if this amount is taken off the sentence that I would impose, the end result is slightly more than the District Court Judge imposed. While the question of the correct approach to the time in custody does not determine the outcome of the appeal, the matter was dealt with in submissions, and would become relevant if my starting point was a little less than it is. Accordingly, it is appropriate to deal with it.
As I have said, Mr Al-Zuain was in custody in relation to the other charge from 13 December 2006. However, Mr Al-Zuain was acquitted of this charge. This is not ‘an offence for which the [appellant was] subsequently sentenced to imprisonment’: see section 30(2) of the Act.
However, it appears that the grant of bail to Mr Al-Zuain in relation to the Magistrates Court charges was probably revoked. There is no record on the Magistrates Court file to the effect that the bail was revoked. The file records, however, that bail was refused on 9 February 2007. Mr Al-Zuain remained in custody until he was again granted bail in relation to this matter on 5 September 2008. This is a period of approximately 19 months. It is appropriate, in the circumstances, to treat him as having been in custody in respect of the Magistrates Court charges for that period.

Section 30(2) of the Act provides as follows:
30Commencement of sentences and non-parole periods
…
(2) If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)make an appropriate reduction in the term of the sentence; or
(b)direct that the sentence will be taken to have commenced—
(i)on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
…
Pursuant to s 30(2) of the Act, the Court can, when imposing sentence, take into account the time Mr Al-Zuain spent in custody between 9 February 2007 and 5 September 2008. I emphasise that the section merely grants to a court the power to take into account the time spent in custody. It does not impose an obligation on the court to take into account all, or even any, of the time spent in custody by an offender in relation to charges in respect of which the court is sentencing the offender. Whether or not a court takes into account time spent in custody, and if so, how much of that time is taken into account, are matters for the court to determine in the exercise of its discretion. Ordinarily, one would expect a court to take into account the whole of the time spent in custody in respect of an offence for which an offender is sentenced.
As I noted earlier, the District Court Judge reduced the proposed head sentence and non-parole period by 40 weeks. He did not explain how he arrived at that figure. Perhaps he apportioned the time in custody as between the Magistrates Court charges and the other charge. It is not necessary to decide the matter, but in my opinion it was, in the circumstances, appropriate to allow for the whole of the time spent in custody referable to the Magistrates Court charges.
As I regard the sentence imposed as well below what is appropriate, I would not in any event impose a lesser sentence than that imposed by the District Court Judge, even though, strictly, he should have allowed for the whole period spent in custody on the Magistrates Court charges.
In the circumstances, I would fix the same non-parole period as the Judge, namely, eight months three weeks.
I turn now to consider the question of suspension. Like the Judge, I note that Mr Al-Zuain has twice had the benefit of suspension of a period of detention that would otherwise have been imposed. The present offending occurred while Mr Al-Zuain was subject to a bond requiring him to be of good behaviour. I acknowledge that Mr Al-Zuain is young, and has experienced a substantial period of imprisonment owing to the refusal of bail. Mr Al-Zuain also enjoys the support of his family and partner. I note that Mr Al-Zuain was quick to find employment following his release on bail after being acquitted of the other charge.
I am not persuaded that there is good reason to suspend the sentences. The offending is serious. Mr Al-Zuain has been granted lenience on other occasions. The need for deterrence makes it inappropriate to suspend the sentence.
Mr Al-Zuain must be sentenced separately in relation to the offence against the Firearms Regulations. Under reg 53, the maximum penalty for an offence against the Firearms Regulations is a fine of $2500. No fine was imposed by the sentencing Judge in respect of this offence. Accordingly, on that count, I would record a conviction but would do so without any further penalty.
Exclusivity of power conferred by section 30(2)
An issue was raised in the written submissions of counsel which ultimately does not arise. That issue is whether the power conferred by s 30(2) of the Act is the sole source of a court’s power to take into account periods of time spent by an offender in custody prior to sentencing. The issue is whether in sentencing an offender a court can take into account periods that the offender has spent in custody which are referable wholly or in part to offences other than those for which the court is passing sentence. As the time spent in custody by Mr Al-Zuain prior to sentence was referable to the Magistrates Court charges for which he received a sentence of imprisonment, even though it was also referable to the other charge on which he was acquitted, the power to take into account that period spent in custody arose under s 30(2).
Section 30(2) of the Act, which is set out above, only operates to give the sentencing court the power to take into account periods spent in custody by an offender in respect of the offences for which the offender is being sentenced. The Act does not appear to authorise the court to take into account, when sentencing an offender, periods spent in custody in relation to offences for which the offender is not being sentenced.
Nevertheless, the power conferred by s 30(2) is a broad one. The High Court (French CJ, Gummow, Hayne, Crennan & Kiefel JJ) referred briefly to the power conferred by s 30(2) in PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [17]-[18]:
[17]The expression used in s 30(2), about which the relevant operation of para (b) would hinge, is "[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment". No narrow construction should be given to the words "time in custody in respect of an offence". …
[18] If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender's arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as "time in custody in respect of an offence" of which the offender is later convicted. The question is whether the time in custody is "in respect of" (which is to say, is referable to) the offence in question. …
The Victorian Court of Appeal in R v Heaney (unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996) considered whether the power conferred by s 18 of the Sentencing Act 1991 (Vic) (‘the Victorian Section’) exhaustively prescribed the circumstances in which a court can take into account periods of pre-sentence detention. At the time of the decision in Heaney, the Victorian Section was as follows:
18      Time held in custody before trial, etc. to be deducted from sentence
(1)     If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason must, unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders, be reckoned as a period of imprisonment already served under the sentence.
(2)     Subsection (1) does not apply –
(a)    to a period of custody of less than one day; or
(b)    to a sentence of imprisonment of less than one day; or
(c)to a sentence of imprisonment that has been wholly suspended or to the suspended part of a partly suspended sentence of imprisonment.
The Victorian Section could be relied upon by a court only if the time spent in custody by the offender prior to sentence was referable to the offence for which the court was passing sentence. However, whereas s 30(2) of the Act confers a power on the court, s 18 imposes an obligation, unless the court “otherwise orders”.
In Heaney, the appellant was charged with an offence and remanded in custody. She was later released on bail, but was later charged with another offence and again remanded in custody. While she was in custody in relation to the later offence, the appellant was committed to stand trial for the earlier offence, at which time she did not seek bail. In sentencing the appellant for the earlier offence, the sentencing judge did not take into account the period the appellant spent in custody after being committed to stand trial for that offence. Brooking JA, with whom the other members of the Court of Appeal agreed, considered that that period should be taken into account in the re-sentencing of the appellant, not in the discharge of the obligation imposed by the Victorian Section, but rather in the exercise of the court’s “inherent power” to take that period into account.
The existence of the inherent power identified by the Court in Heaney was confirmed by the Court of Appeal in R v Renzella [1997] 2 VR 88. In that case, the offender was charged with offences of dishonesty and granted bail. He was subsequently charged with other offences and remanded in custody, his application for bail being refused. Upon being committed for trial on the dishonesty offences, the offender did not apply for bail. The offender was later released on bail. It appears that that grant of bail related to all of the charges against him. The sentencing judge took into account the period that the offender spent in custody prior to being released on bail when fixing both the head sentence and non-parole period to be imposed on the offender. The Director of Public Prosecutions appealed, arguing that in reducing the head sentence and non-parole period to take account of this period in custody, the Judge erred.
The Court (Winneke P, Charles and Callaway JJA) summarised the submission of counsel for the Director of Public Prosecutions at 96:
Mr Gyorffy contended that there was no "common law" discretion to take account of presentence detention in that way. Moreover, as already indicated, he contended that Parliament had intended s 18 to be an exhaustive statement of the extent to which presentence detention might be taken into account. We do not accept either branch of that submission.
The Court dealt with the second aspect of counsel’s submission at 97:
Section 18 does not exclude the discretion that this Court exercised in Heaney's case. It applies only where an offender is sentenced to a term of imprisonment and there is a period of time during which the offender was held in custody in relation to proceedings for that offence or proceedings arising from them and for no other reason. In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account.
The Court concluded at 98:
Presentence detention to which s 18 does not apply is to be taken into account in the exercise of the court's discretion. It should ordinarily be taken into account at the first opportunity, as it was in Heaney's case, and not left to the court imposing a later sentence: cf R v Birnie (unreported, Full Court, 17 November 1994).
The issue was subsequently considered in R v Arts and Briggs [1998] 2 VR 261. The appellant Briggs was charged with an assault and granted bail. Briggs was then charged with murder. He remained in custody after being charged with murder. Briggs pleaded guilty to the assault and was sentenced to a term of imprisonment. Briggs appealed against the sentence of imprisonment.
Callaway JA commenced his consideration of the issue by setting out two propositions which his Honour considered were settled by the decisions in Heaney and Renzella at 263:
One proposition is that s18 does not apply to pre-sentence detention which, in the words of Brooking JA in the former case, was doubly warranted. The reason is that it cannot be said that the prisoner was "held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason". The other proposition is that such pre-sentence detention is to be taken into account in the exercise of the court's discretion and should ordinarily be taken into account at the first opportunity, in case the prisoner is acquitted at a later trial or hearing or a nolle prosequi is entered.
It is worth noting that his Honour said that in exercising its discretion to take into account a period spent in detention, the court was engaging in an “exercise of the sentencing discretion”: at 264.
His Honour went on to say that notwithstanding that it was “entirely fortuitous” that Briggs’s detention was referable both to the assault charge and the murder charge, it was still open to the Court, in an exercise of its inherent discretion, to take into account this period of detention in sentencing Briggs in respect of the assault charge.
At 264, he explained that one of the reasons for coming to this conclusion was that:
[t]he law should not depart from community standards of fairness unless there are good reasons for doing so. The person in the street would not understand why Briggs should run the risk of being acquitted on the charge of murder and not being given credit for pre-sentence detention if that could lawfully be done…
His Honour said that it would not be in every case that a court would exercise its discretion to take into account a period spent in custody. His Honour remarked at 264:
There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here. As Lord Bingham of Cornhill CJ said on behalf of the Divisional Court in R v Governor of Brockhill Prison; ex parte Evans [1997] QB 443 at 462:
It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served [emphasis added].
Vincent JA, in R v McMahon [2006] VSCA 240 made comments to similar effect at [21]:
[21]It is evident from the subsequent cases that have come before this Court, that the reduction in an otherwise appropriate sentence to take account of what is often referred to as "dead time" is not a mathematical exercise and in a number of them allowance has been made for less than the full period involved.
Notwithstanding the deletion of the words ‘and for no other reason’ from the Victorian Section, the existence of the power of a sentencing court identified in Heaney has been confirmed in a number of subsequent decisions of the Court of Appeal. In one of those decisions, R v Berry [2007] VSCA 202; (2007) 17 VR 153, Redlich JA, with whose judgment the other members of the Court agreed on this point, expressed the power in the following terms at [115]:
[115]At common law, pursuant to the court’s inherent jurisdiction, the court is also empowered to discount the sentence that would otherwise be imposed in the light of detention already served. That jurisdiction extends to taking into account periods of custody before sentence which do not relate to the offence for which sentence is to be passed. It is now accepted that, subject to the limitations imposed by s 18(2), time spent in custody which cannot be declared as pre-sentence detention within the meaning of s 18 of the Sentencing Act may be treated as time served, in a general sense, awaiting trial on the charge on which the offender is about to be sentenced and is time that ought to be taken into account in the exercise of the sentencing discretion. But the reduction in an otherwise appropriate sentence to take account of periods in custody which are sometimes referred to as “dead time” or to other periods in custody which do not qualify as pre-sentence detention is not to be treated as a mathematical exercise.
Footnotes omitted
The Courts of Appeal of other States have adopted a similar approach where legislation comparable to s 30(2) does not authorise a reduction in the sentence to be imposed: R v Skedgwell [1998] QCA 93; [1999] 2 Qd R 97; Narkle v Hamilton [2008] WASCA 31. The decision of the Queensland Court of Appeal in Skedgwell has been cited with approval in R v Fabre [2008] QCA 386. It is worth noting that, like the Victorian Section as it originally stood, the relevant legislation in both Queensland and Western Australia includes the words ‘and for no other reason’. Like s 30(2), the relevant Western Australian legislation confers a discretion on a sentencing court to take into account periods of pre-sentence custody.
In Narkle, the Court (Steytler P, McLure and Buss JJA) said at [30]-[31]:
[30]In our opinion, s 87 is not the source of the court's power (which it has long had) to take time spent in custody on remand into account when sentencing an offender. The section sets out the means by which the sentence can be reduced or back-dated where the court has, in the exercise of its non-statutory power, determined, as contemplated by para (b), to take it into account. That the section is not the source of the power to which we have referred is apparent from the provisions of (b) itself. Section 87 contains no express or implied limitation on the court's general power to take into account time spent in custody, including on remand, in the exercise of its sentencing discretion.
[31]Prior to the enactment of the section, backdating of a sentence to take time served on remand into account was not an option that was available to the court. Consequently, the provision was facilitative and was not intended to limit the general discretion that the courts have to take time spent in custody on remand into account when appropriate. That this could not have been the intention is apparent for reasons that were expressed by Steytler P in his dissenting judgment in King (although he there suggested a different construction to that which seems to us be the better construction of s 87). In that case, he said [12] that a construction that treated the section as being exhaustive of the circumstances in which any prior custody can be taken into account would have the result that a prisoner who is remanded in custody on multiple charges could never have the term imposed on him in respect of one or some of those charges taken into account for the purpose of reducing the sentence imposed, even if the remaining charges resulted in an acquittal or were subsequently withdrawn. That could not have been the intention of the legislature.
Their Honours made the following pertinent remarks at [40]:
[40]In a case such as the present, the time in custody may have relevance (as the primary judge recognised) to the question whether there is a need for personal deterrence and also to that of the prospect that the offender has been, or will be rehabilitated. However, it seems to us that it may also be relevant for other reasons. For example, it might raise the question whether or not there has already been some degree of retribution, even if the offence in question was not the sole reason the time was spent in custody. …
The issue has been touched upon in this State. In R v Hughey [2007] SASC 452; (2007) 252 LSJS 316 Debelle and Vanstone JJ made the following remarks at [6]:
[6]During argument, it was suggested that there might be exceptions to the operation of the section and that a judge might, as an exercise of discretion, give the defendant the benefit of time spent in custody even though it was not, strictly, time spent in custody in respect of the offence for which sentence was to be passed. In our view this is incorrect. When exercising the discretion under s 30(2), the court determines a question of fact, namely, whether the defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced. Although there might be unusual cases where an exercise of judgment is involved in determining whether a defendant’s circumstances qualified him under the section so as to enliven the judge’s discretion (see, for example, Tong v Police (1998) 198 LSJS 398 and Bonney v SA Police (1996) 185 LSJS 185) the court nevertheless determines a question of fact.
Their Honours continued at [7]:
[7]The general rule is that “time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody”: R v Arts and Briggs [1998] 2 VR 261, 264 per Callaway JA.

Their Honours did not refer to the other authorities to which I have referred earlier.
The High Court in PNJ did not consider whether a court of this State has the ‘inherent power’ identified by the Court in Heaney. As I have said earlier, the issue does not arise on the facts of this case. The Court was not asked to reconsider its decision in Hughey.
Jurisdiction
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].
Where a person has spent time in custody for matters unrelated to the offence upon which that person is currently being sentenced, and that person has not already been credited for the time spent in custody, fairness demands that, when sentencing that person, the sentencing judge may have regard to the time or part of the time which the person has spent in custody. This accords with the observations of the Court of Appeal in Renzella, where the Court observed that a sentencing court is not only empowered but is obliged, as a matter of justice, to take pre-sentence detention into account.[4]
[4] R v Renzella [1997] 2 VR 88, 97.
Section 10(1)(o) of the Sentencing Act permits the Court to have regard to any other relevant matter in determining a sentence. The section provides, and justice requires, that credit for time spent in custody, whether for the offence charged or for any other reason, may be considered when deciding an appropriate term of imprisonment. It does not follow that in every case credit for time spent in custody must be given.
I agree with the Chief Justice that the starting point for this offending was too low. I agree that a minimum starting point for this case should be six years’ imprisonment. It follows that giving the appellant credit for the total period he has spent in custody prior to sentencing is not justified.
I would allow the appeal. I agree with the sentences the Chief Justice proposes.
VANSTONE J: The detailed facts of this matter are set out in the reasons of Doyle CJ.
The only contentious issue raised by this appeal is the proper treatment of the period the appellant spent in custody prior to sentence. That comprised, first, a period amounting to almost two months commencing with his arrest on 13 December 2006 for drug charges not before this court, for which he was ultimately acquitted. Then followed the period of approximately 19 months, commencing 9 February 2007, when he was in custody both in relation to those drug charges, as well as for the matters on complaint which are before this court.
I might say that less than adequate proof of the history of the appellant’s time in custody was presented to this court. However, like the Chief Justice, I am prepared to make some assumptions about the chain of events, and act upon the chronology as set out above.
Like the Chief Justice, I consider that s 30(2) Criminal Law (Sentencing) Act 1988 (the Act) clearly empowered the judge to reduce the sentence he imposed, in a direct way, on account of the period in custody. Therefore the questions of whether either s 30(1) or (2) allow a judge to give credit for, or “backdate” a sentence, to take account of unrelated time in custody, or further, whether the judge has a common law entitlement to do so, are not essential to the disposition of this appeal.
Nevertheless, in deference to the argument presented – though somewhat limited – and to the reasons given by Doyle CJ and Sulan J, I propose to add some observations of my own.
The relevant provision is as follows:
30—Commencement of sentences and non-parole periods
(1)     Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)     If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)     make an appropriate reduction in the term of the sentence; or
(b)     direct that the sentence will be taken to have commenced—
(i)     on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
(3)     Where a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence—
(a)     on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence; or
(b)     if the defendant is subject to some other sentence of imprisonment—on the completion of that other sentence of imprisonment or at some earlier time fixed by the court.
(4)     Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5)     Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
(6)     If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence—
(a)     will, in the case of a defendant not then in custody, commence on the day on which the defendant is subsequently taken into custody for the offence; or
(b)     will, in the case of a defendant already in custody for the offence, be taken to have commenced on the day on which the defendant was last so taken into custody; or
(c)     will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
I acknowledge the force of the remarks about this section made by Doyle CJ in R v Colson (1999) 73 SASR 407 at 412. Prior and Mullighan JJ concurred in the reasons of Doyle CJ. There the issue was whether s 30(1) of the Act allowed the court to order that a sentence of imprisonment commence at the expiration of a period of detention currently being served. That turned on whether the power apparently conferred by s 30(1) was only to be exercised in the circumstances prescribed by the succeeding subsections. Doyle CJ discussed possible interpretations of s 30. The Chief Justice concluded that s 30(1) conferred a general power and that s 30(2) should not be interpreted as exhaustively stating the scope of that general power. In the process of weighing competing arguments about the issue he made the following observations, at [21]:
… On the other hand, it might be said that if s 30(1) confers a general power, why did Parliament make the particular provisions found in the following subsections? The answer to that question is that Parliament thought it appropriate to deal specifically with the more commonly encountered situations, and, to some extent, to limit the scope of the discretion conferred by s 30(1) by providing what a court must do in certain circumstances.
In R v P, NJ (No 4) [2008] SASC 97, (2008) 254 LSJS 302 the Court of Criminal Appeal was asked to reconsider the approach to s 30 taken in Colson. PNJ had been convicted and sentenced for wounding with intent to cause grievous bodily harm. Subsequently the victim died and he was charged with murder. He sought a stay of the murder charge on several grounds. One of those was his contention that time already spent serving the sentence for the wounding offence would not be able to be counted as part of the sentence for any later offence for which he might be convicted, because s 30 would not allow for the backdating of a new sentence, if and when imposed. That was said to be so because, correctly interpreted, rather than conferring a power, s 30(1) merely imposed the obligation to specify the commencement date of a sentence. Section 30(2) conferred the only power given the court to allow for pre-sentence detention, and it could not, on its terms, apply. It could not apply because the time already spent in custody would not answer the description of “custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment”.
In support of the Colson approach, Duggan J pointed out that the forerunners to s 30 of the Act, being s 24(1) Prisons Act 1936 and s 21 Correctional Services Act 1982, clearly gave the court the power to specify a commencement date earlier or later than the date of sentence. In the structure of those earlier sections there was no apparent fetter upon the power. Duggan J observed that it would seem to be unlikely that the Parliament, in enacting s 30 of the Act, intended to remove a pre-existing power, normally utilised to ensure that justice was done: [25].
Duggan J also drew support from the established practice of the court which had always allowed for the backdating of sentences for alternative offences for which a prisoner had been convicted. White J at [117]-[118] agreed with the reasons of Duggan J on this issue. Gray J, too, supported the correctness of Colson. He described the Colson approach as a “common sense interpretation that reflects and supports the avoidance of double punishment”. He added that s 30 was not expressed to be a code and so common law powers available to avoid the imposition of double punishment remained: [96].
P, NJ (No 4) was approved in the High Court: PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384. The Court tended to the view that s 30(2) of the Act would permit the backdating of any future sentence imposed on PNJ: [19]. It sets its face against a narrow interpretation of the words “time in custody in respect of an offence” in s 30(2). But, as well, the Court observed that the decision in Colson “reflected well established sentencing practice under the Sentencing Act, not inconsistent with the practice adopted under earlier legislation”. Therefore s 30(1) could, in any event, justify backdating any new sentence to the date of commencement of the wounding sentence.
Neither Colson nor P, NJ were concerned with the power or desirability of giving credit to an offender for time spent in custody wholly unconnected with the offence for which sentence was being passed. Notwithstanding that fact, having regard to P, NJ, the correctness of R v Hughey [2007] SASC 452, insofar as it interpreted s 30(2) as prescribing “the only circumstances in which time spent in custody prior to sentence can be taken into account”, must be open to question.
Nonetheless, in my mind, even assuming that a judge has the power to backdate a sentence or give a discount for time spent in custody on unrelated offences, there remains a question whether, leaving aside exceptional cases, it would ever be appropriate to do so. If the time in custody is not referable to the particular offending, then it should not form part of the penalty, because it does not advance the punitive, protective, deterrent and rehabilitative purposes of punishment: R v Stewart (1984) 35 SASR 477; R v Ciccone (1974) 7 SASR 110, 113 per Hogarth, Zelling and Wells JJ. In my view it cannot be said that the common law would sanction such an approach. In this regard the common law is consistent with the approach in the Act: s 10(1) and (1a).
Reference has been made in the reasons of Doyle CJ and Sulan J to interstate cases which, it is suggested, justify a contrary opinion. I turn to those cases.
The questions which arose in R v Heaney (unreported, Supreme Court of Victoria, Court of Appeal, 27 March 1996), R v Renzella [1997] 2 VR 88 and R v Arts and Briggs [1998] 2 VR 261, were as to the scope and meaning of s 18 Sentencing Act 1991 (Vic). That section, as it then stood, obliged a court, if sentencing an offender to a term of imprisonment for an offence, to specifically take into account “any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason.” (emphasis added).
Plainly, that provision was designed to ensure that prisoners receive, by way of deduction, the full benefit of pre-sentence detention referable only to the offence for which sentence was being passed. In the separate cases of Heaney, Renzella and Briggs, the prisoners spent periods in custody referable to at least two separate charges. For that reason, each was found not to qualify for the benefit of a declaration under s 18. Not surprisingly, in each case the court of appeal held that the sentencing court was entitled, outside the terms of s 18 – and, as a matter of fairness, obliged – to take into account time spent in custody, where that custody was, as it was put, “warranted twice over” (per Brooking JA in Heaney). As Brooking JA pointed out, were it otherwise, the appellant Heaney would have “fallen between two stools”, as no account could have been taken, at any point, of the time she spent in custody prior to sentence.
Even so, those cases provide no support for the proposition that, as a matter of principle, a deduction must, or even may, be made for time in custody in no way referable to the offence for which sentence is being imposed. Indeed, in Briggs, Callaway JA (with whose reasons Harper AJA agreed at 272) made the following statement (at 264):
There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here. As Lord Bingham of Cornhill CJ said on behalf of the Divisional Court in R v Governor of Brockhill Prison; ex parte Evans [1997] QB 443 at 462:
It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served [emphasis added].
The statements of Callaway JA and indeed of Lord Bingham are consistent with my understanding of the way the law has been applied in this jurisdiction over many years. Indeed, the very fact that no attempt was made in the instant case to claim credit for the period of almost two months commencing 13 December 2006, when the appellant was in custody only on the unrelated drug charges, provides an illustration of that.
The Western Australian and Queensland cases to which Doyle CJ has referred, like the Victorian cases, were decided in a statutory context different from that obtaining in South Australia.
I note that in R v Berry (2007) 17 VR 153 at 187, Redlich JA, with whom Buchanan JA agreed, observed that “At common law, pursuant to the court’s inherent jurisdiction, the court is also empowered to discount the sentence that would otherwise be imposed in the light of detention already served.” It was said that jurisdiction extended to allowing for periods in custody unrelated to the offence for which sentence was being imposed. However, the authority cited for that proposition included Arts and Briggs, Heaney and Renzella, and, as I have pointed out, those cases were concerned with doubly warranted custody, not with time spent in custody for wholly unrelated matters. The later Victorian cases have even less relevance in this jurisdiction as they respond to changes made subsequently to the terms of s 18 Sentencing Act (Vic).
As I implied earlier, the argument on the appeal did not, understandably, extend far into this area. In my view, resolution of the issues arising from s 30 which remain must await another day.
I would make two further points about this issue. The question under discussion in no way touches the entitlement of a sentencing judge to have regard, in a broad manner, to the fact that the person to be sentenced has recently spent a period in custody for an unrelated offence. Of course that is part of the personal circumstances of the prisoner, which the judge must take into account. If the period is a substantial one it could well have a relevance to, for example, rehabilitation and deterrence and it could bring into play the totality principle.
The second point is that, as earlier observed, it is one thing to possess the power to discount a sentence for unrelated time in custody and another for such a course to be warranted or justifiable. Even if Hughey is ultimately to be held to be in error as regards the interpretation of s 30, it would not follow that the decision itself is flawed.

As to the outcome of this appeal, I agree that, because of the judge’s error in respect of the second count, the appellant must be re-sentenced. Taking into account a period spent on remand for the offending for which sentence is to be passed, pursuant to s 30(2) of the Act, is, ultimately, a matter of discretion. However, where the terms of the subsection apply, full credit should usually be given, absent a good reason for not giving it. There was no good reason in this case. Therefore, I agree with the orders proposed by the Chief Justice.