A sentencing judge's general reference to having 'taken into account' the submissions of counsel does not establish that the judge accepted and acted upon erroneous submissions identifying offence elements as statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Where a factual error adverse to the offender is established in sentencing remarks, the appellate court must exercise the sentencing discretion afresh but may dismiss the appeal if no lesser sentence is warranted.
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