Section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — the aggravating factor that an offence was committed in the presence of a child under 18 — does not apply where the child is the victim of the offence. The provision is directed at protecting children who witness crimes. Where the victim is a child, the victim's age is properly taken into account in assessing objective seriousness, and treating it also as a statutory aggravating factor constitutes double-counting. The aggravating factor also requires 'knowing' presence — the child must be aware of the offending. For compound offences under ss 111(1) and 112(2), where the underlying serious indictable offence is at the lowest level of seriousness, it does not aggravate the entry or break and enter offence.
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