Where error is established in the sentencing process, the Court of Criminal Appeal may receive evidence of post-sentence conduct for the purpose of determining whether a different sentence should be substituted under s 6(3) of the Criminal Appeal Act 1912 (NSW). The s 6(3) test is not equated with a test of manifest excess even where patent error has been demonstrated. The question whether the approach in R v Johnson [2005] NSWCCA 186 — requiring demonstration that the sentence was outside the appropriate range even after error is established — is correct was left open.
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