Where an aggregate sentence of more than 3 years is considered appropriate, a sentencing judge cannot reduce the term to 3 years or less and alter the commencement date (departing from the McHugh backdating practice) for the purpose of bringing the sentence within the ICO threshold under s 68(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). To do so would involve acting upon an irrelevant and impermissible consideration. The question left open in Mandranis v R at [63] — whether such a course would be a legitimate exercise of the sentencing discretion — is now resolved in the negative.
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