On a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW), increasing the sentence is not an exercise in punishment but the withdrawal of an unearned benefit from a person who entered into a bargain and failed to fulfil it. Where an offender deliberately fails to give promised evidence by feigning loss of memory, this constitutes a wholesale failure to fulfil the undertaking. Systemic considerations ordinarily require that the discount be removed, and the imminent expiry of the non-parole period, good conduct in custody, and future plans will not ordinarily constitute unusual circumstances warranting the exercise of the discretion against intervention. The scope of the Court's power on a s 5DA appeal — whether limited to removing the discount or extending to a general resentencing — was left open.
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