SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
ZAIDI v THE QUEEN
[2020] SASCFC 93
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bleby)
24 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence.
The appellant was convicted after a trial by judge alone of the offence of trafficking in a controlled drug contrary to s 32 of the Controlled Substances Act 1984 (SA). The offending related to quantities of methylamphetamine located near the appellant and in his vehicle.
The appellant was sentenced in the District Court to imprisonment for a period of three years and four months with a non-parole period of 13 months. The Judge gave the appellant 22 days credit for the 17 months and 13 days that he spent on home detention. The Judge declined to suspend the sentence or order that it be served by way of home detention.
The appellant appeals against the sentence on the grounds that:
1. The sentencing Judge erred in failing to give proper regard to, and sufficient credit for, the time the appellant spent on home detention.
2. The sentencing Judge erred in finding that there was no good reason to suspend the term of imprisonment.
Held per Kelly J (Kourakis CJ and Bleby J) agreeing, granting permission to appeal on the first ground, refusing permission on the second ground, and dismissing the appeal:
1. The wide discretion to give credit for time spent on home detention is a judicial discretion which attracts the obligation to give reasons and which must be exercised reasonably and proportionally.
2. In exercising the judicial discretion to give credit for time spent on home detention, it is sufficient for a sentencing judge to make a broad assessment of how the time spent on home detention has affected the balance of sentencing considerations, and the extent to which that should be reflected in the sentence imposed.
3. A defendant who wishes to maximise the credit for time spent on home detention bail must demonstrate how onerous it was and the extent of his or her compliance with the home detention regime.
4. The Judge’s conclusion that the nature and extent of the appellant’s breaches of home detention bail was an important factor to consider was not unreasonable. Whilst another judge may have come to a different conclusion, no error has been demonstrated in these circumstances.
5. The Judge did not err in characterising the offending as being in a more serious category than the lower end of the range of seriousness.
6. The Judge did not err in failing to suspend the period of imprisonment imposed.
Sentencing Act 2017 (SA), referred to.
R v Howell [2018]…
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- Zaidi v The Queen [2020] SASCFC 93
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- [2020] SASCFC 93
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CaseChat Overview and Summary
The central legal issue before the Full Court was whether the sentencing judge erred in imposing a custodial sentence, specifically a term of imprisonment, rather than a non-custodial order. This involved considering the principles governing the imposition of suspended sentences and whether Mr Zaidi's personal circumstances, including his traumatic background and refugee status, warranted a different sentencing approach. The Court also had to determine if the sentencing judge had adequately taken into account all relevant factors when arriving at the sentence.
The Full Court reasoned that while Mr Zaidi's personal circumstances were undoubtedly serious and deserving of consideration, they did not, in themselves, displace the gravity of the offending conduct. The quantity of methylamphetamine found in the vehicle indicated a level of involvement in drug trafficking that warranted a significant penalty. The Court acknowledged the appellant's difficult upbringing and refugee experience, but found that the sentencing judge had properly balanced these mitigating factors against the need for general deterrence and the seriousness of the drug offence. The Court ultimately concluded that the sentencing judge had not erred in principle and that the imposed sentence was appropriate.
The appeal against sentence was dismissed.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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