Where a sentencing judge applied the now-overruled 'exceptional hardship' threshold under s 16A(2)(p) of the Crimes Act 1914 (Cth) but nevertheless took the evidence of hardship to family into account in the general mix of subjective features, the 'Totaan error' may not result in a less severe sentence on re-sentence. Applicants in post-Totaan appeals should not assume that concession of error will inevitably lead to a reduced sentence, and may face difficulty adducing 'new' evidence of hardship where extensive evidence was already before the sentencing court.
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