The power to vary a sentence under s 326E(3) of the Criminal Procedure Act 2009 (Vic) is not temporally limited to the conclusion of the appeal and may be exercised at any time after the relevant conviction is set aside. The Renzella dead time discretion applies even where the set-aside conviction was for offending unrelated to the offences being sentenced, and applies to Federal offences under the Crimes Act 1914 (Cth). The fact that the Crown case on the set-aside charge was strong does not disentitle the offender from the benefit of the discretion where the conviction was set aside for substantial miscarriage of justice. When varying sentences for combined State and Federal offences, 'option 2' (grouping State offences first) is the preferred method.
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