R v Al-Zuain

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.