Where a sentencing judge identifies matters that are elements of the offence as 'aggravating factors' under s 21A of the Crimes (Sentencing Procedure) Act 1999, the absence of explanation of how those factors were taken into account creates a risk of double counting and constitutes relevant error. However, such error does not automatically result in resentencing; the appellate court must still form a positive opinion that a lesser sentence was warranted in law. Section 21A should not be used as a checklist.
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