Where a sentencing judge proposes to find an aggravating factor not charged in the indictment and not submitted by the Crown, procedural fairness requires notice to the offender before such a finding is made. However, a finding of error does not necessarily result in a lesser sentence on resentencing where the overall sentence is otherwise appropriate. The characterisation of a sentencing judge's remarks — whether directed to aggravation or to the assessment of remorse under s 21A(3)(i) — may be determinative of whether a procedural fairness obligation arises.
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