When sentencing for manslaughter based on substantial impairment under s 23A of the Crimes Act 1900 (NSW), the offender's mental and cognitive impairment may be taken into account in assessing objective seriousness — for example, in determining whether the offending was planned or spontaneous, or arose from a complete loss of control — and this is not precluded by the principle against double counting, notwithstanding that the impairment has already reduced liability from murder to manslaughter. Section 25F of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies only to sentencing discounts under Part 3 Division 1A and does not constrain the separate power to reduce penalties under s 22A for facilitation of the administration of justice. The statutory scheme for sentencing discounts contains a gap where an offender was not formally found fit to be tried but offered to plead guilty after receiving expert advice on fitness.
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