Non-exculpatory duress remains a mitigating factor on sentence that reduces subjective culpability, with the weight to be given varying according to the form and duration of the criminal conduct, the nature of the threats, and the opportunities available to the offender to avoid the offence. On Crown appeals, the residual discretion not to intervene may be exercised where the case is so exceptional that resentencing would provide no useful sentencing guidance, even where the sentence may be considered somewhat lenient. Care must be taken not to elevate individual judicial statements about customary discount ranges into qualifications of the statutory constraint in s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
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