Section 668E(3) of the Criminal Code limits the Court of Appeal to substituting a sentence that 'should have been passed' at the time of the original sentencing, meaning new sentencing options introduced by subsequent legislation (such as the power to suspend sentences under s 144 of the Penalties and Sentences Act 1992) are not available on appeal from a sentence imposed before that legislation commenced. Section 204(5) of the Penalties and Sentences Act 1992 confirms this limitation. Where sentencing disparity arises from co-offenders being sentenced under different legislative regimes, the Court must achieve the closest approximation to parity using the sentencing options that were available at the time of the original sentence.
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