On a Crown appeal against a manifestly inadequate sentence, the fact that allowing the appeal would create disparity with an unappealed, erroneously lenient sentence imposed on a co-offender is a factor to be taken into account in the exercise of the Court's discretion, but is not a bar to the success of the appeal. R v McIvor [2002] NSWCCA 490 should not be followed insofar as it suggests otherwise. The minority (Allsop P and McCallum J) would have given greater weight to the parity consideration, holding that the Court should not constitute itself the instrument of unequal justice. The question remains one of discretion in each case.
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