A sentencing judge who proposes to depart from agreed facts in a manner adverse to the offender must give clear notice of the different factual basis and a meaningful opportunity to address it; oblique indications are insufficient. Whether a guideline judgment has been taken into account is a question of substance, not form — the sentencing judge must advert to the presence or absence of the factors identified in the guideline judgment. The proper and careful use of comparative sentences is a legitimate and important tool for promoting consistency in sentencing; FL v R [2020] NSWCCA 114 is disapproved insofar as it suggested otherwise. Where a sentencing judge's factual findings are infected by a denial of procedural fairness, those findings fall within the 'exceptional cases' proviso in DL v R and cannot be relied upon on re-sentencing.
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