The correct test under the first limb of R v Smith (1987) 44 SASR 578 for disability as a mitigating factor in sentencing is whether imprisonment will be a greater burden on the offender because of the disability — not whether the offender will find imprisonment more difficult than an ordinary prisoner. The analysis focuses on the impact of the disability on the offender's ability to cope with the prison system, and may require comparison of the advantages and disadvantages of the prison system as they relate to the disability. Evidence of events occurring after sentence is not admissible as fresh evidence on a sentence appeal.
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