Where an offender fails to fulfil an undertaking to give evidence but the Crown nonetheless obtains the utilitarian benefit of the offender's assistance (here, through cross-examination under s 38 of the Evidence Act), the Court retains a discretion under s 5DA of the Criminal Appeal Act 1912 (NSW) not to intervene to remove the discount. The purpose of s 5DA is not punitive but corrective. The question whether s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) mandates a two-stage approach to sentencing for murder remains unresolved, with different members of the Court expressing different views.
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