The ICAC Amendment (Validation) Act 2015 (NSW), upheld in Duncan v ICAC, precludes arguments for an Ellis discount based on ICAC having exceeded its jurisdiction as identified in ICAC v Cunneen, because the validation legislation retrospectively validates anything done by ICAC before 15 April 2015. The parity principle does not strictly apply to non-co-offenders, and even where a comparative case is considered, significant differences in the number of offences, criminal history, timing of plea, and subjective circumstances may preclude a justifiable sense of grievance. Where a court is not asked at sentence to exercise the discretion under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a fixed term, a decision not to do so cannot be characterised as error on appeal.
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