A sentencing judge must not treat as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 a circumstance (such as commission in company) that would elevate the offence into a more serious statutory category than that charged, applying the De Simoni principle. Similarly, a series of criminal acts cannot be treated as aggravating under s 21A(2)(m) where it is an ingredient of the offences being sentenced, prior convictions cannot be relied upon under s 21A(2)(d) without regard to the qualification in s 21A(4), and emotional harm to the victim under s 21A(2)(g) requires adequate evidentiary foundation.
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