The District Court held that where an ICO is not stayed pending a severity appeal and no bail is granted, the appellant is technically serving the sentence, and time spent on the ICO must be credited against any re-sentence to avoid effectively increasing the penalty, applying Gelle v DPP (NSW). The Court re-sentenced the appellant to 2 months and 27 days' imprisonment by ICO (reflecting 9 months already served against a notional 12-month sentence) after quashing an aggregate sentence that had erroneously included an indicative term for a backup offence the Magistrate should not have separately convicted on. The ADVO appeal was dismissed, with the Court finding no good reason to remove the children as protected persons given the serious domestic violence committed in the presence of the three-year-old child.
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