Where an offender pleads guilty to the unaggravated offence under s 112(1) of the Crimes Act 1900 (NSW), the sentencing judge cannot treat the use of an object as a weapon as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, because the use of an offensive weapon is a circumstance of aggravation for the more serious offence under s 112(2), and doing so constitutes a De Simoni error. The materiality of such an error is assessed in context, including whether counsel had an opportunity to address the issue.
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