R v Singh

[2018] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SINGH

[2018] SASCFC 89

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Bampton)

28 August 2018

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

Appeal against sentence imposed in the District Court for four counts of trafficking in methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA). In sentencing remarks, the Judge indicated that the head sentence for counts 2, 4 and 5 on the District Court Information would be reduced by five months on account of time spent in custody and on home detention bail. In imposing the sentence, the Judge overlooked the intended reduction of five months.

The appellant appeals on the grounds that the Judge erred in imposing a head sentence five months longer than intended and erred in setting a non-parole period based on the incorrect head sentence – whether the sentence can be corrected utilising s 9A of the Criminal Law (Sentencing) Act 1988 (SA) – whether the sentence should be set aside and the appellant resentenced.

HELD per Bampton J (Kelly and Blue JJ agreeing) dismissing the appeal:

1. The sentence imposed for counts 2, 4 and 5 is corrected pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) to a head sentence of two years’ imprisonment and the non-parole period is corrected to 23 months. Correcting the sentence in this manner does not amount to a fresh exercise of the sentencing discretion.

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 10B, s 10C, s 18A, s 20; Criminal Law Consolidation Act 1935 (SA) s 353; Criminal Procedure Act 1921 (SA) s 150; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Sentencing Act 2017 (SA) Sch 1 cl 2, referred to.
R v Kuci [2016] SASCFC 136; R v Hudson (2016) 125 SASR 171; R v Tsonis [2018] SASCFC 86; R v Deng [2015] SASCFC 176, applied.

R v SINGH
[2018] SASCFC 89

Court of Criminal Appeal:  Kelly, Blue and Bampton JJ

1. KELLY J:     I would dismiss the appeal for the reasons given by Bampton J.

2. BLUE J:       I agree with Bampton J. I add the following reasons concerning the interpretation of section 9A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).[1]

   [1]    The Act was repealed with effect on 30 April 2018 and replaced by the Sentencing Act 2017 (SA). Schedule 1 clause 2(1) of the 2017 Act provides that (subject to subclause (2) which is irrelevant to the present appeal) that Act applies to the sentencing of a defendant after the commencement of the Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement. Given the nature of the rectification power conferred by section 9A of the Act, it is likely that the Act applies to and for the purpose of rectifying a sentence imposed under the Act before 30 April 2018. In any event section 20 of the 2017 Act confers the same power in identical terms.

3. Subsection 9A(1) provides:

   A court that imposes, or purports to impose, a sentence on a defendant, or a court of co‑ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.

4. In R v Kuci,[2] the sentencing Judge adopted a starting point of imprisonment for four years.  The Judge intended to reduce the sentence by 10 per cent on account of a late guilty plea by Kuci.  A 10 per cent reduction would have been one week short of five months and would have resulted in a sentence of imprisonment for three years seven months and one week.  The Judge made an arithmetical error and reduced the sentence by only two months and three weeks (just over five per cent), resulting in a sentence of imprisonment for three years, nine months and one week.  The Judge fixed a non-parole period of 20 months.

   [2] [2016] SASCFC 136.

5. On Kuci’s appeal against sentence on other grounds, this Court rectified the sentence pursuant to section 9A of the Act (exercising the power under section 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (the Auxiliary Act) conferred on this Court to exercise the powers of a District Court Judge).  The sentence was corrected to imprisonment for three years seven months and one week and a non-parole period of 19 months was fixed utilising the same proportion of the head sentence as that adopted by the sentencing Judge.  The appeal was dismissed.

6. Kourakis CJ (with whom I and Lovell J agreed) said:[3]

   In the course of the appeal a question arose as to whether the Judge’s arithmetic errors vitiated the sentences, thereby allowing this Court to impose the sentence it saw fit without any need to show that the sentencing discretion had otherwise miscarried. In the ordinary course, errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA).

   If arithmetical ‘slips’ of the kind made by the Judge resulted in fresh exercises of the sentencing discretion on appeal, there would be undesirable uncertainty in the administration of the criminal law. I would correct the arithmetic errors pursuant to s 9A of the CLSA exercising the jurisdiction of this Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and by s 9A of the CLSA. Pursuant to these powers I would substitute for the head sentence imposed by the Judge a sentence of three years, seven months and two weeks. I would reduce the non-parole period proportionately to 19 months.

   [3]    At [6]-[7].

7. On this appeal, the applicant contends that the decision in Kuci is distinguishable because the reduction was pursuant to section 10C of the Act whereas in the present case the reduction was pursuant to the general discretion conferred by the Act as a whole to give credit for time on remand in custody and on home detention bail.  Alternatively, the applicant contends that Kuci was wrongly decided insofar as the non-parole period was adjusted.

8. Subsection 9A(1) confers on a sentencing court a power amongst other things to “rectify an error of a technical nature”. The concept of rectification is well known in the general law being a remedy available in equity to correct an instrument (such as a formal contract) to accord with the true intention of the party or parties executing it, such true intention being manifested by the anterior conduct of the relevant party or parties (such as an anterior less formal agreement). The concept of rectification in subsection 9A(1) is similar. The power conferred by that subsection is only available when the true intention of the sentencing judge is ascertained (either by the sentencing judge or when the sentencing judge’s intention can be confidently ascertained by this Court exercising power under the Auxiliary Act) and when the nature of the identified error is technical.

9. The applicant accepts that the error in calculating the head sentence in both Kuci and the present case was of a technical nature and was susceptible to rectification by this Court under subsection 9A(1) because the true intention of the sentencing judge in each case was objectively manifested by the remarks on sentence.  However, the applicant contends that in both cases, or alternatively at least in the present case, the true intention of the sentencing Judge in relation to the non‑parole period cannot be confidently ascertained.

10. In Kuci, the true intention of the sentencing Judge could be confidently ascertained because it is well established that, absent good reason, a sentencing judge should ordinarily allow a discount of or (allowing for rounding) as close as practicable to the maximum allowable under section 10B or 10C in respect of both the head sentence and the non-parole period.  In Kuci there was no suggestion that the Judge had reason to do, or intended to do, otherwise.  It followed that the Judge allowed a reduction of only one month (being about five per cent) in the non-parole period from a starting point of 21 months when the Judge intended to allow a reduction of two months (being just under 10 per cent) to 19 months.  The criteria were met for the exercise of the rectification power under section 9A of the Act.

11. In the present case, the Judge mistakenly imposed a head sentence of imprisonment for two years and five months in respect of the three trafficking counts to which the applicant pleaded guilty in the District Court in circumstances in which it is common ground that the Judge intended to impose a head sentence of imprisonment for two years to reflect credit for time spent on remand.  The Judge imposed a head sentence of imprisonment for two years, nine months and three weeks as intended in respect of the trafficking count to which the applicant had pleaded guilty in the Magistrates Court.  The total of the head sentences was imprisonment for four years, two months and three weeks when the Judge intended to impose total head sentences of imprisonment for three years, nine months and three weeks.  The Judge imposed a non-parole period of two years and four months.

12. When a defendant has spent time on remand in custody for which a sentencing judge intends to give credit when fixing the sentence, there are generally two alternative methods available to achieve this end.  The first method is to backdate the commencement of both the head sentence and non-parole period by the amount of the credit.  The second method is to deduct the amount of the credit from both the head sentence and non-parole period.  Whichever method is adopted, the result should be the same.[4]  In particular, it would be erroneous (at least absent exceptional circumstances) for a sentencing judge to adopt the second method and reduce the head sentence by the amount of the credit determined by the judge but not to reduce the non-parole period correspondingly.[5]

    [4]    R v Deng [2015] SASCFC 176 at [12]-[14] per Blue J; R v Hudson [2016] SASCFC 60, (2016) 125 SASR 171 at [27] per Nicholson J (with whom Parker and Lovell JJ agreed); R v Tsonis [2018] SASCFC 86 at [70]-[71] per Lovell, Doyle and Hinton JJ.

    [5]    It may be accepted that a sentencing judge has a discretion not to give credit for time on remand although it is usual practice for credit to be given for time on remand in custody (as opposed to time on remand on home detention bail): see R v Tsonis [2018] SASCFC 86 at [69] per Lovell, Doyle and Hinton JJ. However, once a sentencing judge exercises the discretion to give credit for time on remand, it will ordinarily be erroneous not to give credit when fixing the non-parole period.

13. In the present case, it is common ground that the Judge intended to deduct five months from the head sentence to reflect credit for time spent on remand in custody and on home detention bail.  In the circumstances, it can be confidently ascertained that the Judge’s intention was to give credit of five months in fixing the non-parole period as much as in determining the head sentence.  The failure of the Judge to do so was due to an error of a technical nature.  The criteria are met for the exercise of the rectification power under section 9A of the Act.

14. The applicant does not contend that, if the rectification power is available, it should not be exercised.  For the reasons given in Kuci, when the power is available, ordinarily it should be exercised rather than the Court exercising power under section 353 of the Criminal Law Consolidation Act 1935 (SA) (now section 150 of the Criminal Procedure Act 1921 (SA)) to re-sentence the defendant.

15. BAMPTON J:      Gurminder Singh was committed to the District Court for sentence following his guilty plea on 22 September 2016 to one count of trafficking in methylamphetamine charged on a Magistrates Court Information.  On 10 February 2017, he pleaded guilty before a District Court Judge to a further three counts of trafficking in methylamphetamine, being counts 2, 4 and 5 charged on a District Court Information. 

16. All four counts of trafficking in a controlled drug were contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for each offence is $50,000 or imprisonment for 10 years, or both.

17. Following the entry of Mr Singh’s guilty pleas, the sentencing Judge remanded him on a supervised bail agreement to “give him a chance to see if he can demonstrate that he is rehabilitated or he is on the road to rehabilitation”.

18. Mr Singh breached the supervised bail agreement by returning urine samples which tested positive to methylamphetamine on 12 April 2017 and 26 April 2017.  He entered pleas of guilty with respect to these breaches.

19. Mr Singh was sentenced on 24 January 2018 to head sentences totalling four years, two months and three weeks’ imprisonment for the four counts of trafficking.  A non-parole period of 28 months was fixed.  Mr Singh was convicted without further penalty for the breach of bond committed on 12 April 2017.  The breach committed on 26 April 2017 was dismissed by the Judge as he considered it was more than likely that the positive result was “attributable to prescribed medications” that Mr Singh was taking for a serious hand injury he had sustained.

20. Mr Singh now appeals against the sentence with permission on two grounds that the Judge erred in imposing a head sentence that is five months longer than he intended to impose, and that the Judge erred in setting a non-parole period of 28 months based on the incorrect head sentence.

21. Mr Singh submits that the appeal should be allowed, the sentence set aside, and that this Court should resentence him to a suspended sentence or a sentence to be served on home detention. 

22. The Director of Public Prosecutions (“the Director”) concedes that the Judge made a technical error and, as such, this Court has the power to correct it.

23. For the reasons that follow, I would correct the error pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”), utilising the powers conferred by s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), and dismiss the appeal.

    How the error occurred

24. Mr Singh’s guilty pleas in the District Court entitled him to a reduction of up to 20 percent of the sentence that would otherwise have been imposed for counts 2, 4 and 5 on the District Court Information. Using s 18A of the CLSA, the Judge started with single head sentence for counts 2, 4 and 5 of three years’ imprisonment. The Judge reduced the three years by seven months to two years and five months on account of Mr Singh’s guilty pleas, a reduction of just under 20 percent. The Judge said in his sentencing remarks that he reduced the sentence by a further five months for time spent in custody and on home detention bail with the intention of imposing a sentence of two years’ imprisonment. However, in imposing the sentence, and as recorded on the Sentence Court Advice Form, the Judge actually imposed a head sentence of two years and five months (overlooking the intended reduction of five months). There is no dispute that there is a miscalculation of five months in the head sentence recorded.

25. Mr Singh was entitled to a reduction of up to 30 percent on account of his guilty plea entered to the fourth trafficking charge in the Magistrates Court.  The Judge started with a sentence of four years’ imprisonment.  His Honour reduced that starting point by one year, two months and one week on account of the guilty plea, a reduction of almost 30 percent.  The resulting sentence for the fourth count of trafficking was two years, nine months and three weeks’ imprisonment.

26. The Judge ordered that one year of the two sentences he had imposed be served concurrently.  That should have left total head sentences of three years, nine months and three weeks’ imprisonment.  However, due to the error identified above, the head sentences actually imposed totalled four years, two months and three weeks.

27. The Judge fixed a non-parole period of 28 months. 

    The appeal

28. Mr Singh complains that the Judge erred by neglecting to deduct from the head sentence five months as intended on account of time spent in custody and on home detention bail. As a result, he contends that the appeal should be allowed, the sentence set aside and that he be resentenced pursuant to s 353(4)(a)(i) of the Criminal Law Consolidation Act 1935 (SA).[6] He further contends that in resentencing, this Court should apply the law as it stood when he was originally sentenced, that is, pursuant to the CLSA.

    [6] Section 353(4) of the CLCA was in operation at the date of sentence. This section was repealed on 5 March 2018 by the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) and re‑enacted in identical form as s 158(7) of the Criminal Procedure Act 1921 (SA).

29. The Director submits that the error should be the subject of an application to rectify pursuant to s 9A of the CLSA and be rectified by this Court, rather than the sentencing Judge. The Director submits that this will require a reduction of the head sentence and the non-parole period, but that no other aspect of the sentence should be interfered with.

    Background to the offending

30. Mr Singh’s offending came to light during a covert police investigation into the sale of methylamphetamine in the Riverland area between January and December 2015.  Intercepted telephone calls and SMS messages revealed that Mr Singh was involved in drug trafficking.

31. Count 2 involved the sale of methylamphetamine by Mr Singh from his home on 26 August 2015 to a person who had earlier collected money from his customers in order to pay Mr Singh.  Count 4 also involved the sale of methylamphetamine from Mr Singh’s home to another purchaser on 27 November 2015.  The purchaser asked Mr Singh whether he had any “snoop” to which he replied, “The best snoop ever”.

32. Count 5 arose out of the sale of a “big one” of methylamphetamine on or around 10 December 2015. 

33. The fourth trafficking count arose out of a search of Mr Singh’s property in the Riverland on 16 December 2015, during which police found a tub in a shed and another tub hidden under a tractor seat, both containing a crystalline substance.  The combined total of the substance found in the tubs was 13.12 grams of crystal containing at least 9.7 grams of pure methylamphetamine.  A tick list of names and amounts owed was also found.

34. Telephone intercepts also revealed that Mr Singh had run up a large debt with a drug supplier in Adelaide and had been forced to borrow from his mother.

35. Mr Singh told a psychologist, Dr Lim, that he had a protracted history of drug use involving cannabis and amphetamines.  He started using cannabis as a 12-year-old to gain acceptance from his peers and to feel socially included.  By the time he was 15, he had progressed to daily use of 10 to 15 “cones” a day.  He was using cannabis daily until his arrest for these charges in December 2015.

36. Mr Singh was first introduced to ecstasy pills at a house party in the Riverland as a 16-year-old.  He took ecstasy regularly every weekend until he travelled to India, where he entered into an arranged marriage.  He became addicted to opium in India for a period of six to nine months after an uncle introduced him to the drug to help him get through the wedding season in Punjab.  He returned to Australia as a 20-year-old with his bride and commenced methylamphetamine use. 

1. Mr Singh’s addiction to methylamphetamine escalated in 2014 after he lost his lucrative job in the fly-in fly-out mining industry in Western Australia, where he had worked for three years as a machine operator.  Dr Lim reported that Mr Singh was forced to resign in May 2014 when he was charged with drug possession in Berri and had to remain in South Australia on bail as a result.

2. Mr Singh went from earning a significant salary to working on the family vineyard and financial dependence on his family.  Unfortunately, the vineyard was not doing well during that period due to the effects of a prolonged drought.  The combination of family and financial pressures, as well as a severe drug dependency, prompted Mr Singh’s decision to supply drugs to others in order to offset the cost of his own methylamphetamine use.  He told the psychologist that he would buy methylamphetamine in bulk because it was cheaper and had been giving a little to friends in exchange for money so that he could buy more.

3. At the peak of his addiction, around the time of his arrest, Mr Singh estimated that he had been smoking approximately “1.5 grams per day of meth or gear through a glass pipe”.

4. Mr Singh first consulted his general practitioner in February 2016 seeking help for his drug cravings.  Thereafter, he sought assistance through Drug and Alcohol Services South Australia and Life Without Barriers counselling service.  His counselling was disrupted in August 2016 when he suffered a serious injury to his left hand after it was crushed by farm machinery.  The injury resulted in the amputation of his left ring finger and manipulation under anaesthetic in June 2017.

5. Mr Singh told Dr Lim that he was extremely ashamed that he had let himself, his family, and the Indian community down.

6. Dr Lim assessed Mr Singh as having a severe amphetamine and cannabis use disorder as well as an adjustment disorder with depressed mood.  Dr Lim considered that Mr Singh requires assertive case management involving drug counselling, addiction support and psychological counselling to address his depression, poor problem solving and coping skills.

7. The Judge indicated that he would sentence Mr Singh on the basis that he was a low-level street dealer and that the charged counts were representative of a course of conduct from early to mid-July to mid-December 2015 in the Riverland area.

8. The Judge noted that Mr Singh had few antecedents of relevance to this offending and that he had had the benefit of two short suspended sentences for unrelated offending committed in 2015.

9. In fixing the non-parole period, the Judge said that Mr Singh was a relatively young man with a wife and two children to support.  His aged mentally and physically unwell father was increasingly reliant on him in the maintenance of the family vineyard, which had proven demanding and difficult since his mother left the family in 2017 in acrimonious circumstances.  The situation was further compounded by an outstanding property dispute between Mr Singh’s parents which effectively froze the vineyard, making it extremely difficult to manage.

10. Despite these problems, Mr Singh had gained employment in the transport industry in the Riverland whilst on bail, working long hours.  He was reported as having a good record of punctuality, reliability and ability in this employment.

11. The Judge noted the number of positive urine samples Mr Singh had returned and the warning letters he had received from Community Corrections.  The Judge said that this indicated that Mr Singh continued to use amphetamines and had largely failed in an attempt to put his drug problem behind him, some of which the Judge acknowledged could be attributable to self‑medication for the hand injury and coping with the stress of his family situation.

12. The Judge accepted that an immediate term of imprisonment would cause hardship to Mr Singh’s family and threaten the viability of the family business.  However, the Judge noted that the offending was serious and that the telephone intercepts indicated that he was dealing in thousands of dollars’ worth of drugs at times, a level higher than street level in the chain of distribution.  He said that it could be accepted that the involvement in trafficking was a means to sustain his habit and to defray costs, but that nevertheless it was significant trading over an extended period.  The Judge noted that, in the period since Mr Singh was placed on supervised bail imposing a strict regime of drug testing with mixed but unpromising results, his response to supervision was reported as poor and unreliable.  The sustained pattern of drug use engendered minimal confidence in his ability to comply with future orders.  The Judge also noted that Mr Singh had had indicated he would pursue drug and alcohol counselling but had failed to do so.  The Judge referred to Mr Singh’s letter of apology where he stated that he had been constrained in the rehabilitation he could undertake because of work and family stressors.  Mr Singh informed the Judge that he took full responsibility for his actions, that his life had been extremely difficult having to learn to function with one hand and that the physical and mental pain has been a struggle.  He also referred to his parents’ separation and how his father has tried to take his own life on a number of occasions due to mental health issues.

13. The Judge determined that the offending was too serious, involved such an extended course of conduct, and that the chance of relapse into amphetamine use was too significant, to allow a suspension or home detention disposition.

    Consideration

14. Mr Singh submits that the error in failing to deduct the five months cannot be corrected by use of s 9A of the CLSA or s 20 of the Sentencing Act 2017 (SA) (“the Sentencing Act”) because of the Judge’s consequential error in setting the non-parole period. 

15. It is submitted that as the non-parole period fixed by the Judge takes its foundation from the incorrect head sentence, it was imposed on a mistaken factual basis. 

16. During the hearing of the appeal, counsel for Mr Singh was referred to this Court’s decision in R v Kuci[7] where an arithmetical error was corrected pursuant to s 9A of the CLSA exercising the jurisdiction of this Court conferred by s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and by s 9A of the CLSA.

    [7] [2016] SASCFC 136.

17. In Kuci, the sentencing Judge had selected a notional head sentence of four years’ imprisonment intending to reduce the sentence by 10 percent on account Mr Kuci’s plea of guilty. As it transpired, the Judge miscalculated the reduction and sentenced Mr Kuci to imprisonment for three years, nine months and one week and fixed a non-parole period of 20 months. The 10 percent reduction intended by the Judge would have resulted in a head sentence of three years, seven months and one week. The sentence was corrected “under s 9A of the CLSA to three years, seven months and one week with a non-parole period of one year and seven months”.

18. Mr Singh contends that the decision in Kuci is incorrect, arguing that the Court actually imposed a new sentence by not only reducing the head sentence by 10 percent consistent with the intention of the sentencing Judge but in also setting the non-parole period by reducing, in the words of the Chief Justice, “the non-parole period proportionally to 19 months”.  It is submitted that as the Court in Kuci had the advantage of knowing the percentage reduction that the sentencing Judge had intended to impose, it is distinguishable from the facts in this matter where the intended reduction was on account of time spent in custody and an allowance for time on home detention bail.

19. Mr Singh contends that if this Court corrected the sentence by reducing both the head sentence and the non-parole period by five months, it would be imposing a new sentence contrary to the intent of s 9A of the CLSA. It is submitted that while s 9A of the CLSA could be used to correct a numerical mistake, it does not extend to correcting an error in calculating a non-parole period because it is not known how the sentencing Judge might have reduced the non-parole period.

20. Mr Singh concedes that while deducting five months from the head sentence and the non-parole period might be an approach, it is but one possible approach. In any event, he argues that had he asked the sentencing Judge to correct the sentence pursuant to s 9A of the CLSA, the Judge could not have adjusted the non-parole period because in doing so he would have imposed a new sentence.

21. Mr Singh submits that unless it is crystal clear what a Judge’s intention was from the sentencing remarks, it is not appropriate for this Court, in effect, to take a guess at what the Judge would have done, because to do so is to impose a new sentence.

22. As put to counsel for Mr Singh during the hearing of the appeal, if his construction of s 9A of the CLSA or s 20 of the Sentencing Act is correct, those sections would have very little work to do because any head sentence error is going to lead to, in instances where a non-parole period is fixed, the question of whether the non-parole period arrived at was appropriate.

23. The question arose in Kuci as to whether the Judge’s arithmetic errors vitiated the sentence, thereby allowing the Court to impose the sentence it saw fit without any need to show that the sentencing discretion had otherwise miscarried. The Chief Justice noted that in that ordinary course arithmetical errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the CLSA. The Chief Justice also noted that if arithmetical slips of the kind made by the Judge resulted in fresh exercises of the sentencing discretion on appeal, there would be an undesirable uncertainty in the administration of the criminal law.[8]

    [8]    R vKuci [2016] SASCFC 136 at [6]-[7].

24. As counsel agreed, it is clear from the tenor of the Judge’s remarks that he intended to give Mr Singh a lenient non-parole period. 

25. Like the Chief Justice in Kuci, in this matter I would correct the sentence imposed for counts 2, 4 and 5 pursuant to s 9A of the CLSA exercising the jurisdiction of this Court conferred by that section and the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). Using these powers, I would deduct the five months that the Judge overlooked deducting from the head sentence for counts 2, 4 and 5, leaving a head sentence of two years’ imprisonment. I would also deduct five months from the non‑parole period of 28 months imposed by the Judge, leaving a non‑parole period of 23 months.

26. In my view, correcting the sentence arrived at by the Judge by deducting five months from the head sentence and the non-parole period was clearly within the sentencing Judge’s discretion, had an application been made to him by Mr Singh to correct the sentence.  Correcting the sentence in this manner does not amount to a fresh exercise of the sentencing discretion. 

27. Finally, given the way I propose disposing of the appeal, it is not necessary to consider the issue of whether the sentence should have been suspended or served on home detention.  Whilst this consideration is not required, I indicate that it is my view that the discretion to suspend the sentence or order that it be served on home detention was not enlivened given the nature of the offending and the importance of personal and general deterrence.  As the Judge noted, having given Mr Singh the chance to demonstrate his commitment to overcome his drug issues, his sustained pattern of drug use engendered minimal confidence in his ability to comply with future orders.  The Judge also noted that Mr Singh had failed to pursue drug and alcohol counselling that he had indicated he would do. 

28. In summary, I would correct the sentence for counts 2, 4 and 5 to a head sentence of two years’ imprisonment and correct the non-parole period to 23 months. 

29. I would dismiss the appeal.