Where a sentencing judge applied the standard non-parole period in accordance with R v Way (subsequently held wrongly decided in Muldrock v The Queen), the error is of such a fundamental nature that the original sentence should not be used as a yardstick for the proviso under s 6(3) of the Criminal Appeal Act 1912, and the Court must determine the appropriate sentence afresh. In a murder case involving intention to cause grievous bodily harm (not intention to kill), no premeditation, domestic violence context, and strangulation, a total sentence of 23 years and 6 months with a non-parole period of 17 years and 6 months was appropriate.
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