Where sentencing remarks are ambiguous as to whether uncharged post-offence conduct was treated as part of the factual basis for the charged offence or as an aggravating feature, an unacceptable risk of error exists warranting appellate intervention and resentencing. A factual error in sentencing remarks (here, an assertion of sex in an elevator that did not occur) is potentially material where it introduces an element of brazenness or aggravation not present on the true facts. The construction of s 71(4) of the Sentencing Act 2017 (SA) — whether the 'special reasons' criteria for home detention for serious sexual offences are conjunctive or disjunctive — was left open.
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