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sets out the extent to which new evidence can be used to increase a sentence on appeal. Subclause (1) provides that, subject to subclauses (2) and (3) the Court of Appeal must not increase a sentence due to any evidence that was not given at the trial or sentencing hearing (new evidence). Subclause (2) permits the Court of Appeal, in an appeal under clause 291 (regarding failure to fulfil an undertaking) to increase a sentence by reason of evidence of the failure. Subclause (3) also allows the Court of Appeal to increase sentences due to new evidence, if the sentencing judge was misled and the increase is necessary in the interests of justice. Currently, section 574 of the Crimes Act 1958 contains a proviso, providing that the Court of Appeal cannot increase a sentence on appeal based on new evidence, that is "evidence not given at trial." Subclause (3), which does not appear in the current section, is designed to provide flexibility in the proviso's application in circumstances such as those which arose in DPP v Burgess (2001) 3 VR 363.