Where a sentencing judge imposes an ICO, the requirement to demonstrably take pre-sentence custody into account remains mandatory, but a successful appeal on this ground may yield no practical benefit if the appellant has substantially served the ICO, because any re-imposed ICO must commence from the date of re-sentencing and would impose fresh supervision obligations. The statutory impossibility of backdating an ICO (confirmed in Mandranis and Edelbi) means that on re-sentencing, the court may conclude that no other sentence is warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW), even where error is established.
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