Where an offender receives a sentencing discount for undertaking to give evidence against co-offenders and subsequently refuses to give that evidence, the Crown may appeal and the Court of Criminal Appeal may increase the sentence. The proviso to s 359 of the Criminal Law Consolidation Act 1935 (SA) does not preclude the reception of evidence establishing that the sentencing basis has been falsified. The basis for re-sentencing is not punishment for breach of the undertaking but correction of a sentence imposed on a false premise; accordingly, the reason for the offender's failure to give evidence is immaterial. However, the mere fact that an offender's evidence did not meet prosecution expectations is insufficient; the power is to be exercised sparingly and with great circumspection.
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