Following Kentwell v The Queen, the Court of Criminal Appeal does not assess whether a sentencing error has in fact influenced the outcome; rather, it assesses whether the error has the capacity to affect the exercise of the sentencing discretion. An error without such capacity does not vitiate the discretion. The language of 'materiality' is best avoided in this context. On resentencing, the Court acts on the sentencing judge's unchallenged factual findings but is entitled to reassess inferences and characterisations of objective seriousness and culpability. Self-serving statements by an offender tendered through secondary sources (such as psychologist reports) without the offender giving sworn evidence warrant scepticism and provide limited basis for findings favourable to the offender.
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