Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits a sentencing court from having additional regard to an aggravating factor that is an element of the offence; where the vulnerability of the victim is an element of the offence (as under s 66F(3) of the Crimes Act 1900), it cannot also be treated as an aggravating factor under s 21A(2)(l). Section 21A(4) requires that aggravating and mitigating factors be applied consistently with common law sentencing principles, including the De Simoni principle. An offender's ill health present at the time of offending does not necessarily require mitigation, particularly where community protection is a significant sentencing purpose. Fresh medical evidence on sentence appeal will only be received in rare and exceptional circumstances, and an informed decision by the offender not to seek an adjournment to obtain updated evidence will weigh against reception.
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