On a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW), where the Crown does not challenge the overall sentence or the distinction between past and future assistance, the Court will confine its intervention to reversing the discount attributed to future assistance. The three-step recalculation method from R v GD applies: remove all discounts to find the starting point, reapply remaining discounts, and apply the same NPP-to-head-sentence ratio. The residual discretion to decline to intervene will not readily be exercised where the offender obtained a benefit from an unfulfilled undertaking, as doing so would encourage offenders to give undertakings without intending to fulfil them. The question whether s 5DA permits reconsideration of the entirety of the discount (including past assistance and guilty plea) remains open.
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