On a defence appeal against sentence from the Magistrates Court under s 42 of the Magistrates Court Act 1991 (SA), the appellate court has no power to increase the severity of the sentence in the absence of a prosecution appeal. Even if such power existed, procedural fairness requires the court to warn the appellant before increasing sentence severity. The prosecution cannot seek orders increasing sentence severity without filing a Notice of Appeal. Section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) requires extension, not reduction, of an existing non-parole period upon further conviction; the only power to reduce is under s 58(4) upon a finding of special circumstances.
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