In a Crown appeal against sentence, the identification of specific error alone is not sufficient; the Crown must go further and show that, possibly in the light of or as a result of the error, a manifestly inadequate sentence was imposed. Where the sentence falls short of the appropriate range by only a small margin, the Crown's delay in bringing the appeal may warrant dismissal in the exercise of the Court's residual discretion. There is no necessary error in taking the same factor (such as protective custody) into account both in fixing the length of sentence and in determining whether special circumstances exist for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but caution should be exercised to ensure excessive benefit is not given.
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