The constrained approach to appellate review of factual findings on sentence appeals stated in R v O'Donoghue — requiring that a finding be shown to be 'not open' or the product of legal error — is clearly wrong and should not be followed. The Court of Criminal Appeal may intervene where satisfied the sentencing judge was mistaken as to a primary fact material to the sentencing discretion. However, this position was supported by only two of three judges; Lonergan J declined to decide the point. The availability of extended supervision or continuing detention orders under the Crimes (High Risk Offenders) Act 2006 (NSW) cannot be taken into account as a mitigating factor in sentencing.
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