A failure by legal representatives to advise an offender of the right to give sworn evidence on sentence, and to permit the offender to do so when the offender wishes, may constitute a miscarriage of justice equivalent to a denial of procedural fairness where there is a significant possibility the omission affected the sentencing outcome. This is particularly so where a pre-sentence report contains adverse findings about remorse that are inconsistent with the offender's instructions. The requirement under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to 'provide evidence' of remorse does not require the offender to give oral evidence; evidence may be provided by affidavit or statements to third parties, though such statements are treated with caution.
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