Where a cooperating prisoner breaches an undertaking to give evidence against a co-offender, the circumstances of the breach — including any failure by authorities to protect the prisoner from contact with the co-offender — may ameliorate the re-sentence imposed on a Crown appeal under s 567A(1A) of the Crimes Act 1958 (Vic). The breach does not necessarily negate findings of genuine remorse or adversely affect rehabilitation prospects where it was substantially caused by matters beyond the prisoner's control. The re-sentencing exercise under s 567A(4A) is not punitive and is not a fresh sentencing discretion; the sentence cannot exceed that which the sentencing judge indicated would have been imposed but for the undertaking.
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