Where the conditions for designation as a serious sexual offender under Part 2A of the Sentencing Act 1991 (Vic) do not exist, an erroneous designation reopens the sentencing discretion. An offender's poor health and Aboriginal background, where medical evidence establishes a high risk of shortened life expectancy, are relevant to the weight of the sentence because time in custody may occupy a disproportionately large proportion of the offender's remaining life. Provocative conduct by a complainant does not mitigate a vastly disproportionate violent and degrading response.
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