A sentencing judge's erroneous characterisation of an offence as committed 'in company' under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not vitiate the sentence where the judge was otherwise entitled to take into account the presence of others who could observe the victim during the offence, and the substance of what was taken into account did not breach the De Simoni principle. The general principle that pre-sentence custody for unrelated offences should not be taken into account in backdating a sentence was confirmed.
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