Where cumulative sentencing discounts have been compressed to preserve proportionality under s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the discount for future assistance is subsequently removed because the offender failed to fulfil an undertaking to give evidence, the offender is entitled to have restored that part of the discount for past assistance that was lost through compression. The offender should not be placed in a worse position than if the promise of future assistance had never been made. The Court also confirmed that the timing of a Crown appeal under s 5DA may justifiably be delayed until the extent of the offender's failure to honour the undertaking has crystallised.
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