A sentencing judge who finds that a complainant was 'under the offender's authority at the time' of offending — using the precise language of s 66A(3)(d) of the Crimes Act 1900 (NSW) — commits De Simoni error when the offender was charged only under s 66A(1) and not the aggravated offence under s 66A(2). This is so even where the sentencing judge also makes a separate finding of breach of trust under s 21A(2)(k). The cases of Rainbow, Cordeiro, Burr and Kilby are distinguishable where the sentencing judge's language does not mirror the statutory circumstance of aggravation.
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