Zaidi v The Queen - [2020] SASCFC 93

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] SASCFC 12, distinguished.
R v Taylor [2016] SASCFC 54; R v Tsonis (2018) 131 SASR 416; R v Gill [2019] SASCFC 22; R v Heldon [2019] SASCFC 62; R v Young (2016) 126 SASR 41, discussed.

ZAIDI v THE QUEEN
[2020] SASCFC 93
Court of Criminal Appeal: Kourakis CJ, Kelly and Bleby JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Kelly J.
KELLY J:
Introduction
The appellant, Mr Syed Zaidi, was charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The first count was in relation to the controlled drug 1,4-Butanediol, or ‘fantasy’, (‘count 2’) and the second count involved methylamphetamine (‘count 4’). Following a trial by judge alone, the appellant was found guilty of count 4 and acquitted on count 2.
On 12 May 2020, the appellant was sentenced to a head sentence of three years and four months imprisonment. The sentencing Judge fixed a non-parole period of 13 months.
The appellant now appeals against the sentence on two grounds:
1.That the sentencing Judge erred in failing to give proper regard to, and sufficient credit for, the time the appellant spent on home detention.
2.That the sentencing Judge erred in finding that there was no good reason to suspend the term of imprisonment.
A Judge of this Court granted permission with respect to ground 2 only. With respect to the refusal of permission on ground 1, the appellant filed an application for an extension of time in which to file his application for determination by the Full Court. At the hearing of the appeal on 19 August 2020, the Court granted an extension of time for the appellant to file the notice of appeal and to file the application for determination of the permission application by the Full Court.
Background
The offending the subject of count 4 occurred on 19 January 2018 at an address in Redwood Park. The police discovered methylamphetamine in a cigarette dispenser found near the appellant. In his car, the police located a bag on the front passenger side containing 6.46 grams of methylamphetamine and a further two bags containing 0.3 grams and 0.47 grams respectively. Hidden under the steering wheel were two bags containing 56.5 grams and 55 grams of methylamphetamine respectively.
The appellant told the police that, on that day, he drove to the address. When he arrived in the late afternoon, a person called ‘Nick’ got into the front passenger seat, asked for a cigarette and told the appellant that he should speak with someone inside the house. He and Nick stayed in the car for about five minutes. The appellant then went inside the house for about half an hour. He said that Nick had given him the cigarette dispenser containing methylamphetamine that morning. He also told the police that he did not know anything about the two bags of methylamphetamine hidden under the steering wheel.
In relation to the cash found in the vehicle, the appellant told the police that part of the cash was from his sale of a car and $500 was from Centrelink. He said that the $500 in his pocket came from selling cars and working.
The appellant did not give evidence at the trial. However, at the sentencing Judge’s direction, he gave evidence about the methylamphetamine hidden under the steering wheel. He gave evidence that someone named ‘Alex’ placed that methylamphetamine in the car and told him to deliver it by going to a pub to play pokies between 7 and 8 pm that night, where someone would meet him. He was then to give that person the keys.
The appellant’s personal circumstances
The appellant is 28 years of age. He was born in Kandahar in Afghanistan. He grew up in difficult circumstances due to his family being very poor and the presence of the Taliban at that time. He was exposed to numerous traumatic events during his childhood including witnessing bombings and executions. When he was 14 years old, he witnessed the Taliban kill his eldest brother because they were demanding money from his father who refused to pay. At that time, the Taliban also threatened to kill him.
At the age of 16, the appellant escaped Afghanistan and eventually came to Australia as a refugee. He successfully obtained a permanent residency visa and came to Adelaide. He remained in a group home until he was 18 years of age and then lived in a Housing Trust for eight years. He was unable to communicate with his family for about three and a half years, and could not sponsor them to Australia because he was not an Australian citizen. The appellant applied to become an Australian citizen about four and a half years ago, but is still on a waiting list.
The appellant’s father still lives in Afghanistan and fears being killed by the Taliban. The appellant believes that if he returned to Afghanistan, he would be executed by the Taliban and he would live in a constant state of fear.
Since arriving in Australia, the appellant learnt English and worked hard. He began part-time employment at a pizza shop at the age of 17. At 24 years of age, he obtained his truck driver’s license and became a full-time delivery driver. He was then imprisoned in relation to an unrelated matter. After being released from prison in relation to that unrelated matter, he commenced a relationship with an Australian woman. That woman was an illicit drug user who introduced the appellant to methylamphetamine.
The appellant subsequently developed a drug addiction and a debt. He was using about half an eight-ball of ice per day, which had significant consequences for his mental health and physical health. He stated that he had been bashed on numerous occasions because of his inability to repay drug debts and as a result, he committed this offence and other acts of trafficking. At the time of this offence, he had an ongoing ice addiction, mental problems and a gambling addiction.
While the appellant was on home detention bail for this matter, he attended Drug and Alcohol Services South Australia (DASSA) for drug rehabilitation and consulted his general practitioner. He was referred to a psychologist and was admitted to Glenside Hospital for two days following what may have been a drug-induced psychotic episode. He reported regularly to the Community Corrections Officer however failed random drug testing.
The report of Dr Balfour that was before the sentencing Judge reflected the opinion that there is a low to moderate risk of the appellant reoffending in the short term.
The sentence
The sentencing Judge did not accept the appellant as a witness of truth with respect to most of his evidence but accepted that the appellant transported large amounts of drugs, on numerous occasions, in exchange for drugs for his own use. The appellant was sentenced on the basis that, while he did not own the methylamphetamine located under the steering wheel, he played a significant role in transporting the drugs and facilitating the commercial nature of the transactions. The sentencing Judge considered that the level of leniency that could be extended to the appellant was limited by the fact that the offence was not an isolated one.
In determining the appellant’s sentence, the sentencing Judge accorded significant weight to the appellant’s personal circumstances, particularly that he would be deported if sentenced to a term of imprisonment of more than 12 months. The appellant’s remorse in relation to this offending, although expressed after trial, was also considered. These factors were balanced against the appellant’s criminal history, the seriousness of the offending and the importance of protecting the community and achieving deterrence.
The starting point of the sentence was four years and three months imprisonment with a non-parole period of two years. In setting the non-parole period, the sentencing Judge considered that this was the appellant’s first serious offence before the Court, that the appellant had tragic personal circumstances that significantly impacted his mental health, his limited support and guidance in Australia and his acknowledgement of guilt. Her Honour deducted 11 months on account of the appellant’s time in custody and time on home detention, resulting in a head sentence of three years and four months imprisonment with a non‑parole period of 13 months. Her Honour noted that the appellant would receive a limited allowance for home detention because of his failure to comply with conditions on multiple occasions.
After taking into account the appellant’s age, antecedents, the circumstances of the offending and his personal circumstances, Her Honour did not consider that there was good reason to suspend the term of imprisonment. Further, the sentencing Judge was of the view that a home detention order would not achieve deterrence, an important feature of the sentence.
Ground 1 – Insufficient credit for time spent on home detention
The first ground of appeal, in respect of which the appellant requires permission, is a complaint that the sentencing Judge failed to give proper regard and sufficient credit for the time spent on home detention.
The home detention conditions were stricter than usual in that two of the conditions imposed forbade the appellant from driving or even being in the driver’s seat of any vehicle, and in addition, he was forbidden to seek employment as a delivery driver, truck driver or any other driving related work.
These two particular conditions seem to have been included as a consequence of the appellant driving whilst disqualified and out of the fact that the trafficking charge arose out of allegations that he was acting as a courier transporting drugs for others.
The appellant’s complaint is that the Judge dealt with the appellant’s breaches of bail in a cursory manner without properly considering them in their larger context. That larger context was that the appellant, in the period in 2015 and 2016 had been incarcerated after being charged with an unrelated offence. He was incarcerated for a period of some five months and was on home detention bail for a further seven or eight months before the charge was ultimately withdrawn. After this episode, and as a consequence, the appellant argued, the appellant lost his business, had to sell his truck and became unemployed. He commenced a relationship with a woman who introduced him to methylamphetamine and developed an addiction which spiralled out of control. The appellant submitted it was in that context that he committed the traffic offence for which he was convicted.
The appellant’s complaint in essence is that in deciding to give the appellant only 22 days credit after he had been on home detention for some 17 months, the Judge erred by not assessing that credit in the wider context of the earlier period of incarceration and its consequences.
It may be accepted that the period of some 17 months between 29 March 2018 and 9 September 2019 was a substantial period to be confined on conditions of home detention in a small flat in the west of the city.
The question which arises on this appeal is what was the obligation on the Judge in these circumstances when exercising the discretion to give credit for home detention served, and did she discharge that obligation.
Since the option of home detention was introduced into the Sentencing Act 2017 (SA), this issue has regularly arisen for consideration by this Court. Two simple propositions can be stated at the outset. First, as wide as the discretion to give credit for time spent on home detention is, it remains a judicial one which must be exercised reasonably and proportionally. Secondly, it is also one which attracts the obligation to give reasons.
The approach to be taken is conveniently summarised by Lovell J (with whom Nicholson and Parker JJ agreed) in R v Taylor:[1]
[19]A court is not obliged to make a reduction on account of time spent on home detention although it is a factor that can be taken into account. The Judge correctly stated that there is no mathematical formula for taking into account time on home detention bail nor any authority which mandates a specific deduction. Much will depend on the circumstances of the matter.
[20]As was stated in R v Franceschini:
At common law, a sentencing judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted.
Whilst it is a common practice for a sentencing judge to make an allowance for a period of home detention and deduct that allowance from the head sentence and non-parole period a court does not have to approach the problem in that way. It can be taken into account as a personal circumstance of the prisoner to which the judge gives appropriate weight when arriving at a head sentence and non-parole period. This latter approach may lack transparency.
[Footnotes omitted]
[1] [2016] SASCFC 54 at [19]-[20].
In R v Tsonis, the Court (per Lovell, Doyle and Hinton JJ) said: [2]
[86]In the context of determining the extent of any credit to be given for time spent on home detention bail (as opposed to time spent in custody), the courts do exercise a very broad discretion having regard, inter alia, to the nature and extent of the conditions imposed upon the defendant, the imposition they represent for the defendant, and the defendant’s compliance with them. In some cases the sentencing judge may quite appropriately give no credit at all for the time spent on home detention bail, although depending upon the length of time involved and other matters, such as those mentioned above, that will not always be appropriate. And further, where credit is given, there is no formula for determining the extent of the credit to be given. While full credit (in the sense of day for day credit) will rarely if ever be appropriate, the permissible range will generally be quite broad.
[87]But in our view there is no close analogy between the exercise of the discretion to give credit for time spent on home detention bail, and the exercise of the discretion to give credit (or give less than full credit) for time spent in custody. In the case of the latter, there is no occasion for weighing the extent of the imposition of custody upon the particular defendant, or the extent of their compliance with the requirements of custody. Time in custody is time in custody. To allow less than full credit for time spent in custody would often give rise to an understandable sense of grievance or injustice on the part of the defendant. The reality, and fundamental nature, of considerations such as these have no doubt contributed to the practice that has developed of giving full credit for time spent in custody.
[Footnotes omitted]
[2] (2018) 131 SASR 416 at [86]-[87].
In Tsonis, the facts were that the appellant had spent time in custody referrable to the charge and had also spent a period of time on home detention bail. The Court was mainly concerned with the failure in that case to give full credit for the actual time spent in custody.
Since counsel for the appellant relied in part on the reasoning of Hinton J in R v Gill[3] to support his argument that the failure to give sufficient credit for home detention in this case was an error, it is necessary to say something more about the decision in Gill. In Gill, the Court (per Bampton J and Kelly J agreeing, Hinton J dissenting) refused permission to appeal after a judge made no allowance for time spent by the appellant in that case on home detention. The Judge declined to do so because the appellant had been on parole during that same period.
[3] [2019] SASCFC 22.
It is an error to take the dissenting reasons of Hinton J in Gill as equating home detention with time actually spent in custody in every case. The terms and conditions of home detention bail, and the homes and family contexts in which it is spent, are far too diverse to allow a universal equivalence. However, a sentencing judge need not embark on a complicated and granular analysis of the period spent on home detention. A broad assessment of how time spent on home detention has affected the balance of sentencing considerations, and the extent, if any, to which that should be reflected in the sentence ultimately imposed, will suffice. Importantly 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.

The authorities where this Court has upheld a complaint that credit given for home detention was insufficient, illustrate the point.
In Taylor, the appellant, after two months and five days in custody, had spent three years and six months on home detention bail. The Judge had allowed a total credit for both periods of only three months. It was not a difficult exercise for the Court in that case to conclude that in the absence of any explanation in the sentencing remarks for the parsimonious amount afforded for the time spent on home detention, was itself indicative of error.
Similarly, in R v Heldon,[4] this Court upheld a complaint that the amount of credit afforded to an appellant who had spent some 18 months on home detention was also indicative of error. In Heldon, the appellant had been on conditions of home detention for a period of some 18 months. As he came from New South Wales, the home detention was particularly onerous for him. He had complied with all conditions of his home detention except on two occasions when he had recorded low levels of alcohol, breaching a prohibition on alcohol condition.
[4] [2019] SASCFC 62 (per Kelly J, Parker J and David AJ agreeing).
In these circumstances, the Court concluded that a period of 19 days afforded for the time spent on home detention was inadequate.
As these authorities demonstrate, the appellate court will not interfere with the exercise of the discretion where, as in the case of Gill for example, there is an obvious explanation for the failure to give any credit. However, as in cases such as Taylor and Heldon, the court will interfere if the credit given is so disproportionate to the time spent on home detention as to raise a serious question whether sufficient regard has been paid by the judge to time spent on home detention. This is particularly so where there is no reasonable explanation either in the circumstances or in the Judge’s reasons to enable the court to understand the basis on which the decision to afford little or no credit was made.
While ordinarily it is to be expected that a judge will give credit for a period of time spent on home detention bail particularly where that period is substantial as was the case here, there will be occasions when it is not an error to give little or no credit for time spent on home detention bail.
This case is a good illustration. Here, the appellant’s breaches of home detention bail were not irrelevant or inconsequential. The nature and context of the breaches was plainly relevant to the exercise of the discretion to grant only 22 days credit. The Court record reveals that the appellant was on home detention bail between 29 March 2018 and 9 September 2019. Breaches of the bail agreement occurred regularly throughout that period. The record reveals that he failed to comply with the agreement on 14 May 2018, 22 June 2018, 3 July 2018, 6 September 2018, 12 November 2018, 4 June 2019, 3 August 2019 and 8 August 2019. With respect to the last breach, the Court record shows that the appellant was pulled over by the police while driving a vehicle whilst under disqualification and at the same time he was subjected to a drug test which again returned positive for the presence of methylamphetamine. When questioned by the police as to his reason for driving, he told the police that he needed to get to a job interview.
Each of the earlier breaches resulted from the appellant returning a positive test for the presence of methylamphetamine.
The circumstances of the breaches also reveal that despite being on home detention bail, the appellant was apparently not confined to his residence for the whole of that time. The fact of those breaches and the number of them went to the heart of the question of whether the appellant could be said to have substantially complied with the conditions of home detention.
In these circumstances, I do not consider that the Judge’s conclusion that the nature and extent of the breaches was an important factor to consider was unreasonable. Whilst I accept that another judge may have come to a different conclusion, it cannot be said that in these circumstances any error has been demonstrated. I would dismiss this ground of appeal.
Ground 2 – Failure to suspend
I turn now to the second ground of appeal, which is a complaint that the Judge erred in failing to suspend the period of imprisonment imposed.
As the appellant conceded that this ground of appeal was really only arguable in the event that this Court found error in the way in which the Judge approached the question of credit for home detention, it can be dealt with briefly. The starting point for consideration must be the remarks of this Court in R v Young:[5]
[5] (2016) 126 SASR 41 at [40], [65]-[69].
[40]The starting point in any review of the sentencing approach to drug trafficking offences must be to call to mind the great social harm it causes. …
…
[65]The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
[66]Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
[67]There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
[68]Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[69]It is common for offenders to claim that they are, or were, heavily addicted and that drugs found in their possession were primarily for their own use. It is necessary for judges to carefully evaluate those claims. The indicia of commerciality are well known. When claims of addiction and own use are pressed as factors in mitigation in the face of evidence of substantial commerciality they may need to be supported by evidence on oath or other corroborative material.
[Footnotes omitted]
It can be seen from the foregoing that the head sentence imposed in this case was well within the range available to the sentencing Judge. The non-parole period was merciful. There could be no complaint about either.
However, the appellant argued that the sentencing Judge was in error to categorise the appellant’s offending as much more significant than a person who buys and sells a small amount of methylamphetamine to facilitate their own addiction and, given the tragic personal circumstances of the appellant, it was an error not to suspend the sentence. In support of that submission the appellant relied on a decision of this Court in R v Howell.[6]
[6] [2018] SASCFC 12.
In Howell, the Court upheld an appeal against sentence by a young man who had been convicted after pleading guilty to one count of trafficking methylamphetamine. In resentencing, the Court adopted a starting point for the head sentence of four years and six months. After taking into account the plea of guilty and time spent in custody and on home detention bail, the Court further reduced that sentence to two years and seven months and imposed a non-parole period of 15 months. The Court then took into account the appellant’s prior record and in particular his good progress to rehabilitation, including the fact that he had already spent five months in custody, and exercised the discretion to suspend.
While the decision in Howell illustrates that the Court always has a discretion to exercise mercy particularly when resentencing on appeal and particularly in relation to a young offender with no prior record, the critical point of distinction between the facts in Howell and this case is that here, the appellant did not plead guilty, when he did give evidence he was disbelieved by the Judge and importantly he was not to be sentenced on the basis of a one-off transaction as in Howell.
In these circumstances, I cannot accept that the Judge’s characterisation of the offending as being in a more serious category than the lower end of the range of seriousness was in error. The Judge reached this conclusion having found that the appellant played an important role in the drug operation in which he was involved, thereby facilitating the commercial nature of the transactions by others.
Importantly the Judge found that this was not the first time that the appellant had facilitated the transportation of drugs. Her Honour considered that his role was more serious than that of a person who buys and sells small amounts of the drug to support their own addiction.
It is plain from the remarks that the Judge gave careful consideration to the mitigating factors present. These included the appellant’s tragic background as a refugee from Afghanistan, the contents of Dr Balfour’s report including, in particular, his assessment that the risk of reoffending in the short-term was low, the fact that the appellant had managed to hold down employment and start up his own business, and the inevitability that if sentenced to a period of imprisonment greater than 12 months, he will likely be deported.
As no error has been demonstrated in her Honour’s approach to the issue of suspension, I would dismiss this ground of appeal.
For these reasons, I would grant permission to appeal in respect of ground 1, however I would dismiss the appeal.
BLEBY J: I would dismiss the appeal for the reasons given by Kelly J.