Where an offence under s 90A of the Crimes Act 1900 (now repealed) is subject to the higher maximum penalty because the defence has failed to establish the absence of substantial injury, it is an error to further aggravate the offence under s 21A(2)(g) on the basis of substantial emotional harm, as this constitutes double-counting. However, such an error will not lead to intervention where no lesser sentence was warranted. An offender's prospects of rehabilitation must be assessed on the whole of the material before the court, not limited to conduct from the time of the offence.
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