The use of a weapon is not an element of the offence under s 33(1)(a) of the Crimes Act 1900 and is an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, but where the sentencing judge has already taken weapon use into account in assessing objective seriousness, it is impermissible to double-count it as a further aggravating factor. A sentence of 3 years and 8 months for a road rage stabbing by a repeat offender on parole was manifestly inadequate, with the lowest appropriate head sentence being 5-6 years even with extraordinary subjective circumstances. However, significant rehabilitation progress may ground the exercise of the residual discretion not to intervene on a Crown appeal.
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