A sentencing judge's failure to make a positive finding as to an offender's prospects of rehabilitation under s 16A(2)(n) of the Crimes Act 1914 (Cth) constitutes sentencing error where evidence of rehabilitation is relevant and material is before the court, even where the judge has addressed other aspects of the offender's subjective case. Accepting a psychologist's opinion that imprisonment would have little rehabilitative benefit due to minimal criminogenic needs is not equivalent to making a finding on prospects of rehabilitation. A justifiable sense of grievance may be established where a co-offender with lesser criminality receives a higher sentence than the instigator, even where the instigator's subjective case (including Bugmy factors) is significantly stronger.
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