Section 41(2) of the Criminal Appeals Act 2004 (WA) is not the sole statutory source of the court's power to resentence on appeal; s 31(5)(a) independently confers power to impose a new sentence in substitution for the sentence set aside. The phrase 'took into account' in s 41(2)(b) bears its ordinary meaning and requires that the sentencing court had regard to or was affected by the sentence being varied; this is to be discerned from the sentencing remarks and sentencing outcome. The statutory foundation of the McGarry resentencing principle and its relationship to ss 31(5)(a) and 41(2) remains unresolved. Section 321A(13) of the Criminal Code 1913 (WA) mandatorily prohibits cumulation of sentences for a persistent sexual conduct offence and a prescribed offence committed during the same period.
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