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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zaidi v The Queen

Details

AGLC: Zaidi v The Queen [2020] SASCFC 93
Case: [2020] SASCFC 93
Decision Date: 24 September 2020

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr Zaidi, by a judge of the Supreme Court of South Australia. Mr Zaidi was convicted of possessing methylamphetamine for the purpose of supply. The offending occurred on 19 January 2018, when police discovered a significant quantity of methylamphetamine in Mr Zaidi's vehicle. Mr Zaidi provided an account to the police regarding his involvement, which he later elaborated on during sentencing proceedings.

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.