In sentencing for dishonestly damaging property by fire under s 197(1)(b) of the Crimes Act 1900 (NSW), the sentencing judge's assessment of the offender's recklessness as to whether persons were in the building and the actual materialisation of risk to their safety does not constitute a de facto extension of criminal liability beyond the mental element of the offence, but rather forms part of the proper assessment of culpability through the statutory aggravating factor of lack of regard for public safety. The extent of damage to property is a factor bearing on objective seriousness where damage is a constituent element of the offence, distinct from a prohibited double-counting of an element as an aggravating factor.
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