Where an offender is charged under a more serious provision when a less serious alternative was available, the sentencing judge must take into account that the offender could have been charged with the less serious offence. Failure to do so, combined with failure to allow for absence of remissions under s 16G of the Crimes Act 1914 (Cth), may result in the sentencing discretion miscarrying. Personal circumstances that do not amount to special or exceptional circumstances sufficient to displace a custodial sentence for social security fraud may nonetheless be taken into account in determining the length of the custodial sentence.
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