Section 93C(2) of the Crimes Act 1900 (NSW) does not make an offender liable to be punished for all the conduct of a co-offender in an affray; it is concerned only with whether the combined conduct meets the threshold of causing a person of reasonable firmness to fear for personal safety. Taking into account an uncharged serious criminal offence (such as attempt to destroy evidence) as an aggravating feature of a different offence infringes the De Simoni principle. A sentencing judge must expressly indicate that a discount for a guilty plea has been given, and must raise with the defence any adverse matters outside the statement of facts before relying on them.
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