The Court of Criminal Appeal held that where a sentencing judge was inadvertently provided with unredacted police facts containing allegations that had been withdrawn in the Local Court (here, stalk/intimidate and additional AVO breach charges), and the judge explicitly relied on those withdrawn allegations in assessing objective seriousness of the prior record, risk of reoffending, and the appropriateness of an ICO versus full-time custody, the error was material within the meaning of Kentwell v The Queen and required resentencing. On resentence, the Court reduced the aggregate sentence from 2 years 6 months to 2 years 3 months and the non-parole period from 1 year 6 months to 1 year 4 months, declining to impose an ICO given the applicant had already served the vast bulk of his non-parole period and an ICO cannot be backdated under s 71(1) of the Sentencing Act.
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