It is an error in sentencing for aggravated robbery (involving corporal violence) to treat the absence of a weapon as a mitigating factor, since the use of a weapon would constitute a different offence under s 97(1) of the Crimes Act 1900 (NSW). A sentencing judge errs in finding an offence mitigated because some other, more serious offence was not committed. Where an offender commits a serious violent offence within days of release on parole for a similar offence, specific deterrence is of substantial significance and the criminal record is a matter of aggravation, not merely a neutral factor.
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