R v Singh

The Director of Public Prosecutions appealed against a sentence imposed on Mr Singh, who had been convicted of trafficking methylamphetamine. The dispute concerned an alleged error in the sentencing procedure, specifically the calculation of the head sentence and the non-parole period. The appeal was heard by Kelly, Blue, and Bampton JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The central legal issue before the Court was whether an arithmetical error in the sentencing process, which resulted in an incorrect head sentence and a consequential error in fixing the non-parole period, could be rectified by the appellate court under section 9A of the Criminal Law (Sentencing) Act (CLSA). Mr Singh contended that such rectification would amount to the imposition of a new sentence, which was beyond the scope of section 9A, particularly concerning the non-parole period where the sentencing judge's original intention for its reduction was unclear.

The Court considered the Director's submission that the error could be rectified under section 9A of the CLSA, drawing a parallel with the decision in *R v Kuci*. In *Kuci*, an arithmetical miscalculation by the sentencing judge regarding a guilty plea discount was corrected by the appellate court, which adjusted both the head sentence and the non-parole period. Mr Singh argued that *Kuci* was distinguishable because the intended percentage reduction was known, whereas in his case, the reduction related to time spent in custody and home detention bail, making the intended non-parole period reduction uncertain. The Court noted Mr Singh's concession that deducting a fixed period from both the head sentence and the non-parole period might be one possible approach, but maintained that it was not the only one and that the sentencing judge might have exercised their discretion differently in setting the non-parole period had the error been drawn to their attention.

The Court ultimately found that the error in calculating the non-parole period was a consequential error stemming from the incorrect head sentence. It was determined that the appellate court could, and should, rectify this error by applying the same reduction to the non-parole period as was applied to the head sentence, consistent with the principles in *R v Kuci*. The Court ordered that the head sentence and the non-parole period be reduced by five months to correct the arithmetical error.