Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the identification of error in the sentencing process does not of itself require the Court of Criminal Appeal to substitute another sentence; the Court must form a positive opinion that some other sentence is warranted in law. Where error is apparent, the Court must consider whether the sentence imposed is outside the appropriate range for the circumstances unaffected by that error. The sexual character of violence inherent in the offence of sexual intercourse without consent (s 61I Crimes Act 1900) cannot be taken into account as an aggravating factor, as this amounts to impermissible double counting of an element of the offence.
The full text is available to signed-in members, including the 38 later cases that cite this judgment.
19 of the 38 citing cases carry a classified treatment. How each court treated it is available to signed-in members.