For Commonwealth offences sentenced in Victoria, family hardship under s 16A(2)(p) of the Crimes Act 1914 (Cth) is to be taken into account as part of the instinctive synthesis without any requirement that the hardship be 'exceptional'. However, the weight to be given to family hardship remains a matter for the sentencing discretion and may be very modest where protective factors exist and the offending is serious. The common law exceptional circumstances test from Markovic continues to apply to State offences.
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