Sections 289(2) and 290(3) of the Criminal Procedure Act 2009 (Vic), which remove double jeopardy as a consideration in Crown appeals against sentence, apply to federal offences via s 80 of the Judiciary Act 1903 (Cth). There is no inconsistency with s 16A of the Crimes Act 1914 (Cth). When assessing exceptional circumstances under s 16A(2)(p), family hardship must on its own constitute exceptional circumstances and cannot be combined with other mitigating factors such as cooperation with authorities. The existence of exceptional circumstances must be assessed on the balance of probabilities, not by reference to 'risk'. The residual discretion to decline to intervene survives the removal of double jeopardy but cannot be exercised on double jeopardy grounds.
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