Where a sentencing judge accepts evidence of hardship in custody (such as PTSD from assaults on remand) but imposes an identical sentence to co-offenders without that feature, the finding has not been given effect and the sentence is erroneous. Family hardship falling short of 'exceptional' may be taken into account in the 'general mix' of subjective factors, following R v X and R v Girard, though the broader question of whether the 'restrictive approach' in Kremisis should continue to be followed remains open for determination by the High Court or an enlarged bench of the NSWCCA.
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