The power to remit for resentencing under s 353(4)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) is enlivened upon the Court being satisfied the sentence is vitiated by error, without the Court first determining what sentence should have been passed. The Olbrich/Weininger framework governs onus and standard of proof in sentencing in South Australia: the prosecution must prove aggravating circumstances beyond reasonable doubt; the defendant must prove mitigating circumstances on the balance of probabilities; failure to discharge the onus does not prove the converse; and not all sentencing matters need be categorised as aggravating or mitigating.
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