The aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — that an offence was committed in the presence of a child under 18 — requires more than the child's mere physical presence; the child must be of an age and have a level of awareness such as to have been conscious of the offending, so that the offending will have had, or be likely to have had, an adverse consequence on the child. The Crown bears the onus of establishing this awareness. Where a percentage discount for a guilty plea is applied to individual indicative sentences, care must be taken to ensure the utilitarian value is adequately reflected in the final aggregate sentence.
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