When assessing exceptional family hardship, a sentencing court is not required to find on the balance of probabilities that harm to children will occur; once the existence of some relevantly significant risk is established, that risk must be weighed even if it is less than 50 per cent. The combination of an offender breastfeeding an infant in custody and an older child being exposed to a parent with a history of family violence can constitute exceptional circumstances warranting mercy. Prosecution concessions made at first instance on considered instructions should not be withdrawn on appeal without compelling reasons.
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