If a mitigatory explanation is likely to be substantially rejected without sworn evidence, the defendant must be put on notice as a matter of procedural fairness. Permission to appeal against sentence will rarely be granted to the Crown where it would allow a second opportunity to challenge a mitigatory account that was expressly or tacitly accepted at sentencing, unless the account is inconsistent with sworn evidentiary material before the sentencing judge. Sentencing practice has evolved since [name withheld] such that a higher standard of procedural fairness is now demanded regarding warnings to defendants about the need for sworn evidence.
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