Where an offender is charged under s 195(1A)(b) of the Crimes Act 1900 (NSW) rather than the aggravated offence under s 197(1)(b), the sentencing judge cannot take into account the offender's knowledge that the offence was an 'insurance job' motivated by financial gain, as this constitutes a circumstance of aggravation not charged. The mere passive presence of a participant in a joint criminal enterprise, without evidence of active encouragement or assistance, cannot properly be characterised as a 'substantial' role. A failure to find special circumstances for one co-offender when such a finding is made for another of equal culpability may give rise to a justifiable sense of grievance.
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