The De Simoni principle does not preclude a sentencing judge from taking into account false statements that are not the subject of separate charges where those statements demonstrate that the charged offence was part of a planned criminal activity; the surrounding conduct is taken into account not as uncharged criminality but as evidence of the character of the charged offence. A prosecution concession as to the degree of commonality between offences does not bind the sentencing judge. Where a sentencing judge takes an offender's health into account in fixing the head sentence, further weight given to the same factors when fixing the non-parole period may constitute impermissible double counting, though the majority and dissent divided on this point.
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