Where a jury is directed on recklessness only as awareness of a substantial risk under s 5.4(1)(a) and (b) of the Criminal Code 1995 (Cth), and not on recklessness constituted by knowledge under s 5.4(4), the sentencing judge cannot find on sentence that the offender had actual knowledge of the relevant circumstance, as such a finding is inconsistent with the basis on which the issue was left to the jury. However, the absence of prior convictions does not automatically entitle an offender to a finding of good character under s 16A(2)(m) of the Crimes Act 1914 (Cth); untruthful evidence on sentence may reflect an unfavourable aspect of character that neutralises the mitigating effect of a clean record.
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